HEARING DATE: 22, 23, 24 October, 15 November 2007

Criminal Law - Evidence - Admissibility - Generally - Sexual offences - Similar acts in relation to different persons - Significant probative force in fact that several complainants gave evidence of similar acts - Whether tendency evidence or coincidence evidence under Evidence Act 2001 (Tas).

Evidence Act 2001 (Tas), s98.

Aust Dig [514]

Judgment Number: [2007] TASSC 112

1 The accused is charged on the indictment with seven crimes committed at his home against six girls:

1 Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with LB, a girl born on 14 March 1990, to whom he was not married.

2 Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with AM, a girl born on 6 January 1991, to whom he was not married.

3 Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with KM, a girl born on 19 March 1992, to whom he was not married.

4 Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with TP, a girl born on 13 January 1991, to whom he was not married.

5 Between on or about 1 August 2004 and on or about 31 [sic] September 2004, indecently assaulted SM, a girl born on 11 December 1991, by placing his fingers in her vagina (an aggravated sexual assault).

6 On or about 20 December 2004, indecently assaulted KJ, a girl born on 5 January 1995, by putting his hand down the front of her pyjamas.

7 On or about 21 December 2004, indecently assaulted KJ again by putting his hand on her vagina.

2 Appropriately, counsel for the accused conceded that the joinder of all charges in the same indictment conforms with the Criminal Code, s311(2), which permits joinder of charges if they arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character.

3 Under s326(3), the accused applied for an order that there be a separate trial with regard to the count or counts referring to each complainant, so that there will be a separate trial of each of counts 1, 2, 3, 4 and 5, and a joint trial of counts 6 and 7. A judge may so order under the subsection if it appears that the accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for one or more crimes charged in the indictment. It is the accused's case that if there is to be a joint trial of charges concerning two or more complainants he is likely to be seriously prejudiced because the jury may misuse the evidence and impermissibly reason that because a number of girls have made allegations that he sexually offended, he is more likely to be guilty, and that because his character or conduct is revealed by the evidence of one or more of them, he is likely to be guilty of offending because of a propensity to do so. There is a body of authority for the proposition that, absent good reason to the contrary, where an indictment alleges more than one sexual crime involving more than one complainant, the indictment should be severed in the proper exercise of the discretion. Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 531, 541 - 542; De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1 at 3, 7 and 8; KRM v R [2001] HCA 11; (2001) 206 CLR 221 at par38.

The State relies on tendency and coincidence evidence

4 A good reason to the contrary may be where the evidence in respect of one complainant is relevant to a charge in respect of another complainant. In this case the State asserts that there is such a reason and that the evidence of what the accused did in relation to each complainant is relevant to and will be admissible upon the trial or trials of the charges concerning the other complainants because it qualifies under the tendency rule and the coincidence rule in the Evidence Act 2001, ss97 and 98.

5 The State served on the accused written notices of its intention to adduce tendency and coincidence evidence. It is unnecessary to refer to the contents of the notice concerning coincidence evidence. The notice concerning tendency evidence, which replaced an earlier one that had obvious defects, states that the tendency evidence is:

(a) Between 2003 and early 2005, he, by himself and with his wife, encouraged young females to stay regularly at his home on weekends and school holidays.

(b) During 2003 and 2004, he had had young females sleep with him in his bedroom, and sleep or lie with him in the 'kids' room' next to his bedroom or in the lounge room, during sleepovers.

(c) During 2003 and 2004, he provided young females staying overnight at his home with what they classed as 'fun' in the form of games, swimming in a dam on the property, staying up late at night, watching or playing DVDs and Play Station, alcohol, cigarettes, cannabis, pocket money for odd jobs, pornographic movies and driving vehicles on the property.

(d) He had a tendency to touch young girls on the thigh and/or genitalia whilst instructing driving of a utility or when they were accompanying him on trips in the vehicle.

(e) During sleepovers at his home, particularly in the absence of his wife, he had a tendency to cuddle young females, kiss or try to kiss them, touch them on the thigh, touch their genitalia with his hand, penetrate their genitalia with his finger or fingers, touch their breasts and, in two instances, have sexual intercourse with two of them.

Items of evidence given by the complainants on the voir dire are identified for the purpose of indicating what the evidence will be that establishes the claimed tendencies. They are not reproduced here.

6 Under the tendency rule of s97, evidence of the conduct of an accused person, or of a tendency that person has or had, is not admissible to prove that the accused has or had a tendency to act in a particular way, if the Court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced, would not have significant probative value. See s97(1)(b). Further, tendency evidence about an accused person, that is adduced by the prosecution, cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect it may have on the accused. See s101(2).

7 For the coincidence rule of s98 to operate by permitting evidence of two or more events to be admitted to prove that, because of the improbability of the events occurring coincidentally, an accused person did a particular act, the Court must be satisfied that those events are related events in a sense that they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar. See s98(2). Evidence of two or more related events is not to be admitted for that purpose if the Court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced, would not have significant probative value. See s98(1)(b). Further, coincidence evidence about an accused person, that is adduced by the prosecution, cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect it may have on the accused. See s101(2).

8 Voir dire evidence was give by each of the complainants and photographs of the home of the accused, and some of its contents, were tendered through a police officer. Also in evidence is a recorded interview between police and the accused.

9 Counsel for the accused conceded that the evidence concerning his sexual offending with the complainants was of related events because the events were substantially and relevantly similar and the circumstances in which they occurred were substantially similar.

10 There was a family connection between LB and the accused and his wife and she visited their home regularly, sleeping there on many nights. AM and KM, who were sisters, were goddaughters of the accused and his wife and they also visited their home regularly, sleeping there on many nights. TP was a close friend and schoolmate of AM and as a result, she came into close contact with the accused and his wife and visited their home regularly, sleeping there on many nights. SM was also a friend and schoolmate of AM and as a result she came into contact with the accused and his wife and visited their home, sleeping there on a number of nights. KJ was a friend of AM and KM and a niece of the accused's wife. She visited the home of the accused regularly, sleeping there on many nights.

11 All of the complainants derived considerable pleasure out of their visits to the accused's home. There were few rules and many activities to be enjoyed. They were allowed to stay up late at night. The accused allowed LB, AM and TP to steer or drive a motor vehicle. Because of their young age they sat on his knees to do so. KM also sat on his knees while a vehicle was driven by him, but she did not say that she drove or steered it. Evidence was given by LB, AM and TP that they did chores and were rewarded with money and cigarettes. KM said that she was rewarded with money and lollies and KJ said that she was rewarded with money and she was provided with cigarettes. LB, AM, TP, SM and KM said that they were provided with alcohol. LB said that on five or six occasions the accused supplied her with marijuana for her use. AM said that he supplied it to her on one occasion and TP said that he supplied it to her on about three occasions.

12 The accused and his wife had no children of their own. Whenever a complainant was at the accused's home there was at least one other girl staying there at the same time. A distinctive feature is that on many of the occasions when he sexually assaulted them, at least one other girl was present, although the other girl did not always witness the assault because it was carried out in circumstances where it would not or could not be seen. Another distinctive feature is the evidence, which the accused does not dispute, that on a great many occasions, more than one girl shared a bed with him. There are many other aspects of their evidence he does not challenge, for example that they received rewards for work done, that they were provided with cigarettes and alcohol, that a number of them sat on his knee when a vehicle was being driven by him or driven or steered by one of them and that he treated AM more favourably and with greater fondness than the others. He makes two major denials, that he sexually assaulted them and that he supplied marijuana to them.

13 I will relate the substance of the evidence of the complainants about the sexual assaults, dealing first with those claimed to have taken place in a motor vehicle and then with those said to have occurred in the accused's home.

14 LB gave evidence of steering a farm truck while he operated the pedals and gear shift, on a great number of occasions she referred to as a few hundred. On the first of those occasions he rubbed the inside of her thigh outside her clothing. The same thing occurred many other times. Asked whether anyone else was in the vehicle when he touched her, she said sometimes there was but if so, he just rested his hand on her leg. She also gave evidence of an occasion in a stationary utility at a pump house, when he put his hand inside the front of her pants onto her vagina.

15 Similar evidence was given by AM. The first occasion was in 2003 when she was aged 13 and she and TP decided that they wanted to drive his utility. She said that they sat on his knee and steered while he operated the foot pedals. While she was on his knee, he grabbed her leg, getting close to her vagina. TP was in the vehicle at the time. He did the same thing on another occasion. She said that she and TP learned how to drive the vehicle and that she also went driving when LB was there. She described an occasion when TP was sitting on his knee in the utility and he was rubbing TP's leg, over her clothes, near her vagina.

16 KM gave evidence of sitting on his knee while he was driving, but not of her steering or driving or of him sexually assaulting her in a vehicle.

17 TP also gave evidence of travelling with him in a vehicle and of sitting on his knee while she was steering it and he was operating the brake pedals. She said that on the first occasion he touched her on her vagina under her clothing and at that time, AM was in the passenger seat. He did the same thing on many occasions, most of the time when they drove.

18 SM and KJ did not give evidence of occasions with him in a vehicle. Their visits were fewer in number than those of the other four complainants.

19 LB stayed at his home from when she was aged about 9 or 10 and she last visited in January or February 2005, when she was 14. On most occasions other young people were also staying there, usually girls. She related an incident one afternoon when she was lying on a foldout bed playing Nintendo in a bedroom referred to in evidence as the kids' room. No-one else was in the room until the accused entered and commenced to rub the inside of her leg and then put his hand inside the front of her trousers, played with her vagina and penetrated it with his fingers. He was lying next to her at the time. From about the age of 12, LB commenced to sleep in his bed. There would always be another girl in the bed at the same time. There was undisputed evidence that there had come a time when he slept in one bedroom, his wife slept in another bedroom, and although there was a third bedroom available for others, there were often occasions when there were too many children in the house to comfortably sleep them all in it. There were a number of nights, according to LB, when she and AM spent the night with the accused in his bed. She said there was one such occasion when he was lying between the two girls and she could feel his arm moving and AM said "don't" and hit him. That occurred nearly every time she slept in there with AM, she said. Precisely what she was referring to, I am not sure. LB also gave evidence of being in the bed, with AM, when the accused turned to her and started to rub her back, stomach, breasts and legs under her nightie. She thought that AM was asleep at the time. She also described occupying the bed with KM, waking up because the bed was moving, and seeing KM lying on her back playing with her vagina and the accused lying on his side masturbating over KM. LB said that she shoved him and he became crabby, got up and left the bedroom. She discussed the matter with KM the following morning.

20 AM stayed overnight at the accused's home on a great number of occasions from about the age of 5 until the end of 2004 when she was aged 13. She was mainly there with TP and KM, but also with others such as LB and KJ. At first, she slept in the kids' room but in 2004 she slept in his room. She noticed in 2003 that he was wanting to be near her more, kissing her in a way that a father would not kiss a daughter, hugging her and spoiling her. That he was treating her as his favourite was confirmed by the evidence of other girls and admitted by him to the police. She described an incident one night in the 2003 Christmas holidays. After watching a DVD in the lounge room with TP, LB and the accused, the girls went to bed in a double bed in the kids' room. He put himself between AM and TP and said he would give them a goodnight cuddle. He rolled over and gave AM a hug with his arm across her, under her breasts. She was a "bit blown away" by it, because he did not usually do that. He also rubbed the inside of her thigh. Later, LB, who was next to AM, got up screaming, telling the accused to get out and saying "stop it". AM did not see what caused LB to do so. TP was crying and shouting at the accused, who left the room. The three girls were crying but eventually fell asleep. The accused was in a crabby mood for all of the next day.

21 AM gave evidence of an occasion in 2004 when she and TP were in his bed, with him between them, and he touched her leg and vagina under her clothing. She described another night when she woke up to find that the accused was right over near TP, but she could not see anything in the dark. Next morning, TP told her that the accused had touched her. AM also described a night in March 2004 in the accused's bed, when he was playing with her leg and vagina and put his fingers inside the flaps of her vagina. She responded by rolling over and telling him to stop, and he got out of bed. She did not say whether another girl was in the bed at the same time. Another occasion in his bed was when she woke up from sleep to find him on top of her. He put his penis in her vagina, which hurt. It caused her to cry. She told him to stop and he did so. That was the only occasion on which he had sexual intercourse with her. She made no mention of another girl in the bed, but said that later she spoke to TP and told her about it.

22 AM also described an occasion when he put her hand on his erect penis when they were in bed. She did not say whether another girl was in the bed at the same time. Such a thing did not happen on any other occasion. She twice saw the accused masturbating when she was in his bed. She thought that someone else was in the bed, but could not remember who. Another occasion described by AM was of her walking into the kids' room where KM and KJ were in bed. As she walked in the accused walked out. KM and KJ were crying and KJ said that the accused had touched them both. AM later spoke to KJ about that. The last occasion upon which AM stayed at his home was at the end of 2004, between Boxing Day and the end of the year. She said that she was in his bed with TP and woke up to find the bed moving. She turned on the bedside lamp and saw him on top of TP, moving up and down. AM told him to "get off" and said that she would telephone his wife. She picked up the telephone and pretended to do so. There was another incident after that, I infer on another night, when he touched her vagina and penetrated it with his fingers. She rolled over and said "stop". She did not say whether another girl was present.

23 From about the age of 5 (1997) to the age of 12 (early 2005) KM regularly visited his home and, like most of the other complainants, stayed overnight on weekends, school holidays and other occasions. Other girls also stayed when she did, such as her sister, AM, LB, TP, KJ and a girl called X. KM would not normally stay there without AM, although it may have happened about three times. Her evidence was that she commenced to sleep in the accused's bed about a week after she first went there. She said that it was always her choice whether she slept in his bed, the kids' room or the lounge. My understanding of her evidence was that if she slept in his bed, another girl would also be there, but if AM and TP were in the bed with him, she would not join them but might use an air mattress on the floor. KM described a night in 2003 when she and KJ were in his bed, with him in the middle. After she had fallen asleep, he put his arm around her and touched her vagina over her shorts. She said "stop" and he said "just a little more". He kept on and she pushed him away, whereupon he rolled over to KJ and put his arm around her. KM rolled over and went back to sleep, but woke to the bed moving and finding him on top of KJ. After a while, KM pulled down the doona and saw that the accused had his pants halfway down and his arm under his gut, and she could see his penis sitting up above KJ's pyjamas. KM said that she was scared and turned away. She talked to no-one about what happened that night.

24 KM described another night not long after. She was on a couch in the lounge room. AM was on an air mattress on the floor. LB and TP were on another air mattress on the floor. They were going to sleep after watching a movie called Coyote Ugly. He came into the room and laid down next to AM. KM did not see what, if anything, happened between him and AM, but later she heard him get up and come onto the couch with her. He felt her vagina under her pyjamas and put his fingers inside the slit of her vagina. She said "stop" and he got up, said "fine then" and walked away. She went back to sleep. In cross-examination she agreed that when she told police about that occasion she said that she had been on an air mattress next to LB. She agreed that she had changed her version and that she had spoken to "the other girls" about what had happened.

25 KM related what occurred on another occasion when she, AM and LB were in the lounge room and then moved into the accused's room. AM was in his bed and KM and LB were on an air mattress on the floor. He came down onto the air mattress, placed himself between the two girls and put his arm around LB. KM turned away and saw nothing more. She also described another occasion when she, AM, LB and X, who was a friend of LB, were staying there. LB and AM were in his room and KM and X were in the kids' room. X went to the toilet and he entered the kids' room and laid beside KM, put his arm around her and started to feel her vagina outside her pyjama pants. She said "don't" and he responded "fine". X returned and he walked out. When she woke in the morning the accused was with AM on an air mattress.

26 It was the evidence of TP that she started to visit his home in 2001 (when she was aged 10) and continued to do so until about the end of January 2005 (when she was aged 14). Her visits came about because of her friendship with AM. She only went there when AM was there and sometimes other girls were present, such as LB, KJ and KM. Initially, she slept in the kids' room, but then started to sleep in the accused's room because someone else was using the kids' room at the time. Thereafter, from about 2001, she slept in his bed with him and AM. Sometimes LB would also sleep in his room, and also KM a couple of times if one of the others was not there. Usually, if three girls were in his room, one of them would be on another bed, but there were occasions when three of them were in his bed. TP observed that he and AM had a close relationship, that he treated AM more like a partner and would cuddle her a lot, including in bed. Observations of the closeness between him and AM were made by others.

27 TP gave general evidence of being touched by him when she was in bed with him. He would normally start by touching her legs. He tried to kiss her but she normally turned her head away because she did not like it. She saw him kissing AM often. She related a particular occasion on which AM was required by the accused and his wife to sleep in the bath after she had vomited in the bed following consumption of alcohol. TP was in his bed with him. He started to rub her legs and vagina, skin to skin. She described another occasion when she was in his bed, with him and AM. She woke up to find him on top of her, in a "push up position" and he penetrated her vagina with his penis. Her nightie was pulled up and her pants were down her legs. She said that it lasted four or five minutes, that her vagina hurt and that it ended when she pushed him off her. Next morning he told her "you were good last night" or "you was wet". That was the only occasion on which he had sexual intercourse with her. (The only other complainant to say she had the experience, on one occasion, was AM.) TP said that the next day, or a couple of days later, she told AM what had happened. She did not know whether AM had seen what occurred. Following that event, TP became concerned that her period was late and she told some friends something of what had occurred. What she told them was not investigated by counsel.

28 TP gave evidence of an occasion when she woke on her stomach to find her nightie was up and her pants were down, and the accused was lying on his side, looking at and masturbating over her bum. She pulled her pants up and told him not to do it. He said something like "I was just admiring your arse". TP did not know whether AM saw anything of what happened, nor could she remember whether she told anyone about what happened. There was another occasion when she was dozing off and he placed her hand on his penis. After a time she pulled her hand away and he "kind of mumbled and got angry". She did not think she was alone in the bed with him at the time. On the last night she stayed at his home, he touched her for the last time by putting his fingers in her vagina when she and LB were in the bed with him.

29 SM went to the accused's home because of her friendship with AM. She was also a friend of TP. She thought that she commenced to visit when she was aged 11 (in about 2002) and last visited there in September 2004. She always visited with AM and others would be there, such as KM, TP, KJ and a girl called Y. On the first two visits, she slept in the kid's room with other children. SM said that she last stayed at the house for six consecutive nights. On the second last night, she overheard the accused say to AM in the garage, "Last night was heaven, I hope we can do it again". On the following night, she and AM slept in his bed. Three other children, KM, Y and a boy called Z, slept in the kid's room. AM told the accused to sleep on the couch (in the lounge room) and he said that he would do so. After going to sleep, SM was woken by his hands inside her pants and his fingers playing around with her vagina. AM was also in the bed. SM told him to "fuck off" and he said "sorry". SM resolved never to return to his home again and did not do so. Next day she told AM and TP of what had happened.

30 The accused's wife is KJ's aunt. KJ said that she first visited the house when she was aged about 8 (in about 2003). I infer that she last visited early in 2005 when adults became aware of allegations being made against the accused. Also at the house when she stayed overnight would be all or some of AM, LB, TP and KM. She slept both in the kid's room and the accused's bedroom. She gave evidence of being indecently assaulted by him on two occasions. She gave no evidence of witnessing him assault another girl. The assaults on her occurred over the weekend prior to AM and KM leaving the State, which established the events as occurring in January 2005. The first assault occurred when she and KM were sleeping in the kid's room. The accused came in and laid next to her, put his hands down her boxers and touched her vagina. Neither of them said anything. Then he turned over to KM. She saw nothing of what occurred after that. The following night she slept in his bed with AM. Once again, he put his hand inside her clothes and touched her vagina. Nothing was said and when he stopped, he rolled over to AM, but KJ did not see what occurred after that.

31 It appears from the evidence that the offending of the accused with the complainants came to an end at the end of January 2005, as a result of TP having confided in a girlfriend about her fear of being pregnant, the girlfriend speaking to her mother, the mother then speaking to SM's mother, that mother speaking to SM and to TP's mother, and TP's father going to the accused's home and taking TP and LB away from it.

32 There are many similar features in the allegations of the complainants. They include their ages and the commission of assaults in the front of a vehicle, the accused's bedroom, the kid's room and the lounge room. With only a few exceptions, the assaults were by the accused touching the girls on or near the vagina and sometimes penetrating with his fingers. The only evidence that he touched their breasts was the evidence of LB that he did so on one occasion. Many of the assaults were committed in the presence of other children, but not in the presence of another adult. Each of AM and TP complained of one act of sexual intercourse and one act of the accused putting their hand on his penis. Having regard to the considerable number of times upon which it is alleged he assaulted the complainants, those acts may be categorised as rare. LB, AM and TP gave evidence of seeing him masturbate. A striking feature of the evidence is that no complainant gave evidence of witnessing him ejaculating.

33 Having regard to the evidence to which I have referred, I find the evidence of the various complainants concerning his sexual offending with them was of related events in the sense that they were substantially and relevantly similar and the circumstances in which they occurred were substantially similar.

Is the evidence tendency evidence or coincidence evidence?

34 Section 98 is expressed as a provision for the exclusion of evidence and not for its inclusion. It governs the circumstances in which a party may not have admitted evidence of two or more related events to prove that because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. Two different examples readily come to mind in the context of a criminal trial. One is of a case in which there is evidence of more than one crime having been committed in distinctly similar ways and circumstances, so that proof beyond reasonable doubt that the accused committed one of them could be used to prove that he committed the others and to exclude mere coincidence as an explanation. Another example is a case in which there is evidence that a number of crimes have been committed in distinctly similar ways and circumstances and there is evidence linking the accused to them all, giving rise to an argument that it is more than mere coincidence that he is linked to them and that he is in fact guilty of them all. The State does not seek to raise either of those ways of proving guilt. There may be other ways in which evidence qualifies as coincidence evidence, but I do not see that any are open in the circumstances of this case. The conclusion I come to is that the evidence in question does not qualify as coincidence evidence so that the provisions of s98 do not apply to it.

35 The question was touched upon by Hodgson JA in WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89. In the course of referring to the evidence of witnesses who had given evidence of related events, his Honour said at pars 35 and 36:

"Let us suppose that a jury had a reasonable doubt, in the case of CPS, in the absence of the evidence of TEL. Would the evidence of TEL then leave no reasonable view consistent with the innocence of the appellant? In my opinion, the answer is yes. In my opinion, assuming there is no reasonable possibility of concoction or contamination, it is not reasonably possible that two persons could come forward with stories with the similarities of the stories of CPS and TEL unless they had foundation in fact.

This approach could raise a question which was not the subject of submissions either below or in this Court. Since the coincidence is not merely the similarity of objective circumstances related by the two witnesses, but also and primarily the fact that two witnesses should independently relate such similar circumstances, the improbability that gives the evidence its probative force is not so much the improbability of the related events themselves occurring coincidentally, as contemplated by s98(1), as the improbability of two witnesses independently coming forward with evidence of related events unless their evidence had foundation in fact. One view could be that s98 is a section that excludes evidence in certain circumstances so that if its terms do not precisely refer to certain evidence, then it does not apply to that evidence, and accordingly s101 also does not apply. However, on that view there would be nothing in the Evidence Act to exclude application of the Pfennig [1995] HCA 7; (1995) 182 CLR 461 approach, so the same result would follow."

36 In R v Ellis [2003] NSWCCA 319; (2003) 144 A Crim R 1, five members of the New South Wales Court of Criminal Appeal disapproved of the application of the common law test of Pfennig to the statutory requirements of the Uniform Evidence Act for admissibility of tendency and coincidence evidence, but no comment was made about the question I am considering and the suggestion by Hodgson JA that the terms of s98 may not refer to evidence of the present kind and therefore, do not apply to it.

37 In Uniform Evidence Law (7th ed) by Stephen Odgers SC at 397 it is said that an example of coincidence evidence "would be evidence relevant to the credibility of two or more witnesses in that it is, on the basis of common sense and experience, objectively improbable that similar allegations would be independently made by such witnesses unless they were true". (Of course, if the evidence is only relevant to credibility, it is not admissible at all. See Evidence Act, s102.) The Director of Public Prosecutions v Boardman [1975] AC 421 and Hoch v R [1988] HCA 50; (1998) 165 CLR 292 are cited as authorities for the proposition, but they were common law cases and not cases under the uniform evidence legislation. My view is that to refer to evidence of the present kind as coincidence evidence under s98 is to strain the natural and ordinary meaning of the words used in s98(1).

38 However, the evidence does amount to tendency evidence under s97, for it is evidence of the conduct of the accused, on a great many occasions, that is relevant to prove that he had a tendency to offend sexually against girls in similar ways and in similar circumstances, as described by the complainants.

Does the tendency evidence not have significant probative value?

39 Does the evidence not have significant probative value? It is an issue that is raised by s97(1)(b). That same question would arise under s98(1)(b) if the evidence was coincidence evidence. I conclude that the evidence has significant probative value. It explains why the accused, on his own admission, on so many occasions, occupied beds with so many girls and allowed them to steer or drive his vehicles, and it is probative of the fact that when he did so it was his practice or tendency to sexually assault them in the ways they described. Further, that several complainants have given evidence of events that are substantially and relevantly similar, and which occurred in substantially similar circumstances, gives additional probative value to the evidence of each. The evidence of them all tends to give substantial probative force to the evidence of each because, subject to the possibility of concoction or contamination of their evidence or minds, it is improbable that they are each telling similar stories, unless they have a factual basis. See WRC at pars 32 - 34, 61.

40 Section 101(2) requires exclusion of the tendency evidence "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the" accused. There was no dispute between counsel as to matters of principle that need to be considered when addressing the question. The subsection calls for a balancing exercise to be conducted on the facts. In the course of it, the reasonable possibility of concoction or contamination of the evidence or minds of the witnesses may deprive their evidence of some of the significance of its probative value and it may result in its probative value being substantially outweighed by the prejudicial effect it may have on the accused. See generally R v Ellis [2003] NSWCCA 319; (2003) 144 A Crim R 1 at par95; R v Mason (2003) 140 A Crim R 274; R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at par77; Tasmania v S [2004] TASSC 84 at pars6 - 14; L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at pars38 - 40.

41 As already stated, one of the reasons the evidence has significant probative value is that the six complainants gave evidence of similar acts of the accused committed in similar circumstances. That fact increases the probative value of the evidence of each because of the objective improbability that they were lying. The probative value of what they said is further enhanced if regard is had to the admissions made by the accused to the police. For example, he accepted that he regularly occupied the same bed with the girls, that he allowed them to drive or steer a vehicle and that he supplied them with cigarettes and alcohol. All of that accorded with their evidence about what happened. Further, the fact that an adult male regularly shared a bed with the girls raises a strong suspicion that his motives and actions were other than innocent and that what they complained of is true. Most men would not share their beds with girls of the ages of the complainants unless their motives were other than innocent. His admission that on many occasions he cuddled AM in bed, and elsewhere, supported her credibility and the evidence of others that she was his favourite. He admitted to often throwing an arm over her while in bed, that "of course" it resulted in him touching her stomach, that he had a special friendship with her and that she almost always shared his bed over a two year period. He also admitted to cuddling up to KM, a couple of times, while in bed with her, that LB shared his bed, that he cuddled her, although not much, and that it was possible that he could have rolled over and cuddled up to her in the night. He admitted that KJ shared his bed and that AM may have been in the bed at the same time, that TP shared his bed on occasions, that he cuddled her while in bed, but not very often, and that AM was also there if KM was not. He agreed that it was normal for him to sleep between two girls. He said that KM did not like being cuddled, which supported her evidence that on the three occasions he assaulted her in bed she refused to allow him to continue and he desisted. He said that LB would tell him to keep his distance, which accords with her evidence that she was assaulted by him in his bed on one occasion only, although she shared his bed with him on a number of occasions.

42 Another aspect of what he said to the police that gave additional probative value to what the girls said in evidence concerned his capacity for sexual activity. He said that he had "a problem" in that regard, that he did not very often get an erection, that he could but it was not easy, that to obtain an erection he needed to become sexually aroused, that to do so took a long time and that he would masturbate. What he said accorded generally with an inference to be drawn from their evidence that his penis was rarely involved during his indecent assaults on them, and that there were only two attempts at sexual intercourse and that he did not ejaculate. I thought it a distinctive feature of their evidence collectively and that it was given credibility by his own admissions.

43 A feature surrounding the complaints of the girls is the absence of any motive on their part for concocting their allegations. SM was the only one who had such a dislike for being indecently assaulted by him that she decided never to visit his home again. The others continued to visit, notwithstanding the assaults, because they enjoyed their time there and, it seems, they liked him very much and were prepared to put up with the assaults until they ended, in the case of AM and KM, when they moved away from the State with their family, in the case of LB, when she took up with a partner, and with the others, because of parental intervention. When interviewed by the police on 8 April 2005, he said that "it doesn't make a great deal of sense to me", which I took to be a reference to the girls having made their allegations against him to the police, adding that only a few weeks before he had received a text message from "the kids over there", which I infer was a reference to AM and KM, in which they stated that "they love me and missed me". Counsel for the State emphasised the absence of a motive for making false allegations and that the complainants only made their allegations when adults heard something of what had happened and intervened.

44 Counsel for the accused submitted that there is a real possibility of the complainants having concocted their allegations, or of their minds or evidence having been contaminated, because of conversations many of them had with each other about what they claimed the accused had done with them. I have referred to some of their evidence of communications with each other. There was a substantial amount of other evidence of them talking to each other and I will refer to some of it.

45 LB agreed that AM was one of her best friends and that she had discussed "these matters" with her, but not to the full extent, that is to say, not in full detail. She said that they had talked about the accused having touched them, but not about the full details that are contained in her statement to the police. She had discussed "this" with TP and had discussed "it" with KM. When asked to explain what she had meant when she said she had discussed what happened with AM, TP and KM, she said that she had done so every time they went to the accused's garage for a smoke. She agreed that she had discussed "it" with SM, but denied that she had discussed it with KJ.

46 AM's evidence was that she told TP "everything", agreeing that she was referring to all the instances she had described in evidence. She said that she had talked a lot with LB, and agreed that before she moved to live in Melbourne early in 2005, she, LB and TP talked about "it". She said that KM and KJ kept to themselves, but agreed that she had told police of a morning in the garage when KJ said that the accused had touched her leg and rubbed her vagina and that the accused had done it to KM too, but AM did not get the full story because the accused walked into the garage.

47 KM admitted to speaking to AM about "some of it", but not all of it, but she had never talked to TP about it. She agreed that KJ was a good friend and that she had spoken to her "a bit" about "this".

48 TP agreed that she and AM were best friends and that they had talked to each other about what had been going on and also to LB. They had discussed the details. She had not talked to KJ and was not sure about KM, but probably not.

49 SM said that some weeks after the one assault on her, TP told her that she thought she might have been pregnant because the accused was on top of her. That did not influence SM to claim that he had intercourse with her as well. SM agreed that she had talked to AM about "these things" at the accused's house. She had not told KJ or KM what had happened to her, nor had they told her what had happened to them.

50 KJ agreed that she had spoken to AM about "these allegations", that she had spoken to KM and that she told them some of the detail (but not all) that included that the accused put his hand down her pants and touched her vagina. She thought she had spoken to LB, but not to TP.

51 Counsel for the accused sought to turn against the State the fact that the evidence of one complainant was similar to the evidence of another, by submitting that it suggested that it was a product of discussions between them. He particularly referred to the evidence of AM and TP that on one occasion he had sexual intercourse with them, pointing to the similar detail in their evidence that they woke to find him on top of them and that the intercourse hurt, but an absence of any other details. However, there were other details. There is an inference to be drawn from AM's evidence that it was after she woke that he penetrated her, whereas TP's evidence suggested that he had already penetrated her when she woke. AM said that she told him to stop and he did, whereas TP said that she pushed him off. TP said, but AM did not, that it was dark in the bedroom, that her nightie was pulled up and her pants were down around her ankles and that the next morning the accused spoke to her about what had happened. Further, TP said AM was in the bed at the same time, but AM gave no evidence about anyone else being present in the bed.

52 The conclusion I have come to is that the evidence of the complainants, when considered as a whole, has substantial probative value for the reasons I have given. Although there were many opportunities for concoction and contamination, upon the basis of all the evidence it is not a reasonable possibility that their evidence is a product of that, apart from one possible example revealed in the course of the cross-examination of KM. Collectively, the probative value of their evidence is powerful and it substantially outweighs any prejudicial effect it may have on the accused. The State should be allowed to use evidence of each complainant on each charge.

53 For these reasons, the application to sever will be refused. I add that I should not be regarded as having ruled that individual pieces of evidence are admissible. The issue before me was only one of severance.