Von Porebski v R [1999] WASCA 15

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Newland (1997) 98 A Crim R 455

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563

1 MALCOLM CJ: This was an application for leave to appeal against conviction on six counts in an indictment, being counts (4) to (9) inclusive. Counts (1) to (3) alleged offences committed on one LC, a child under the age of 14 years. The applicant was acquitted in respect of these offences. Count (4) alleged carnal knowledge of one AC againast the order of nature. Counts (5), (8) and (9) alleged that the applicant had carnal knowledge of one TL against the order of nature and counts (6) and (7) alleged that the applicant committed an act of gross indecency on TL. The application for leave to appeal was made on two grounds. The first was that the learned trial Judge erred in law in allowing the trials in relation to the complaints of TL to be heard together with the trial of the complaint of AC. The second was that the learned trial Judge erred in his charge to the jury in that he failed adequately to correct the wrong impression given by the Crown Prosecutor to the jury with respect to the use that the jury could make of the similar fact evidence on which the Crown relied.

2 I am in agreement with the reasons which Pidgeon J is about to publish, although I would grant leave to appeal but dismiss the appeal. In particular, I agree that the learned Judge was not in error in refusing the application for separate trials.

3 So far as the similar fact evidence is concerned, such evidence may be admissible if, and only if it tends to show that an accused person is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. In Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294 Mason CJ, Wilson and Gaudron JJ said:

"The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged: see Dixon J's discussion in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375. In that same case [at 385] Evatt J pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for 'admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence'.

Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution."

4 In Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 482 Mason CJ, Deane and Dawson JJ said of the above passage:

"This passage should not be understood as asserting that 'striking similarities' or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.

An important distinction is to be drawn between cases such as the present case in which the 'similar facts' are not in dispute and cases in which such facts are in dispute."

5 Their Honours then referred to the statement by Mason CJ, Wilson and Gaudron JJ in Hoch at 294-295 that:

"Where the happening of the matter said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue."

6 In this case the similar fact evidence was disputed. In Pfennig at 482 Mason CJ, Wilson and Gaudron JJ said:

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged ... The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt whether neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such but because it has a prejudicial capacity of a high order the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (Hoch (1988) 165 CLR at 296 ... see also Harriman (1989) 167 CLR at 602). Here 'rational' must be taken to mean 'reasonable' (see Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence."

"... evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution. In other words that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman [1975] AC at 457, that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed."

8 See also BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 at 298-299 per Gaudron J. In particular, her Honour said at 299:

"Evidence of conduct on other occasions has special probative force or cogency in relation to the possibility of concoction only if it discloses some feature which renders it improbable that two or more persons would give an account of particular conduct if that conduct did not, in fact, occur. Or to put the matter in terms used in Boardman v Director of Public Prosecutions [1975] AC at 461 per Lord Cross of Chelsea, it has probative force or cogency if there are 'features common to the ... stories which ... two liars concocting false stories independently of one another would have been unlikely to hit upon'."

9 In Boardman v Director of Public Prosecutions [1975] AC 421 a schoolmaster was charged with homosexual offences involving two students, the offences having been committed on separate occasions. The accounts given by the complainants disclosed similar features in that the boys were woken in their respective dormitories at about midnight or in the early hours of the morning, were admonished not to wake anyone else and were thereafter invited to take the active role in homosexual intercourse with the master. The evidence of each was held admissible in proof of the offences charged in relation to the other.

10 In Gipp v The Queen [1998] HCA 21 at [9]; (1998) 72 ALJR 1012 at 1014-1015 Gaudron J said:

"There are occasions when evidence of criminal conduct other than that charged is admissible in proof of an offence because it raises the objective improbability of that offence bearing an explanation consistent with the accused's innocence of that offence. Evidence of that kind is usually called 'similar fact' or 'propensity' evidence and has a special probative value because, for example, it is highly improbable that persons would concoct the same story or because it reveals some idiosyncratic or peculiar modus operandi which makes it highly probable that the acts in question were all committed by the same person."

11 As set out in the reasons to be published by Pidgeon J an application to have three separate trials relating to the counts on the indictment was refused by the learned trial Judge on 14 August 1998. In refusing the application the learned Judge applied the principles stated in Hoch and found that there was no reasonable foundation in fact for any suggestion of collusion or any basis for concoction. The evidence led at the trial has been fully described by Pidgeon J as well as the directions which were given in relation to the evidence. This was not so much a case involving striking similarities or unusual features as a case in which the evidence revealed an underlying unity system or pattern. Each complainant made contact with Mr Scott before being taken to the applicant. It was Mr Scott who introduced them and in some cases took part in the sexual conduct which occurred. The complainant LC and the complainant AC both said that the applicant had interrupted his work shift to come into the hotel bedroom. The evidence of TL was consistent with that. Two of them spoke of the change of bedrooms. On the occasions when Mr Scott did not himself go to the bedroom he made arrangements for TL to reach the bedroom in a way which was similar. Each of the complainants was given a key to enter the assistant manager's private bedroom. While the complainants had been involved in similar sexual activity with many other men, this had taken place at other places. There was no suggestion that the sexual conduct with other men took place at the Riverside Lodge Hotel in the absence of the applicant. The pattern associated with the sexual activity which took place at the Riverside Lodge Hotel was peculiar to the applicant. Given that the central issue at the trial was the identification of the applicant by the complainants as the person they met their evidence of similar facts had substantial probative force in relation to that issue in that it raised, as a matter of common sense and experience, the objective improbability of the events having occurred other than as alleged by the prosecution because each of the complainants was independently mistaken.

12 Each of the complainants gave evidence of cigarettes with unusual features being offered to him. This was evidence of a particular pattern of behaviour. The cigarettes were of an unusual kind or character, although they were not all the same. No such cigarettes were involved when the complainants participated in sexual conduct with men other than the applicant. Each of the complainants was a young school boy who was given alcohol to drink prior to the sexual conduct taking place. As Pidgeon J has pointed out, each of the complainants was of similar age, entry into the bedroom was by similar means, the sexual conduct was preceded by the use of alcohol and unusual cigarettes and took the form of a group activity.

13 In my opinion, the evidence was such that it was clearly open to the trial Judge and the jury to conclude that there was no evidence that the complainants had concocted their accusations against the complainant. The acquittal of the applicant on the first three counts is readily explained by the inconsistency in the evidence of LC which led to the indictment being amended so as to allege that the offences alleged in counts (2) and (3) were committed at a house in East Perth rather than at the Riverside Lodge Hotel where the offence the subject of count (1) was alleged to have been committed. In any event, ground 1 of the grounds of appeal was directed only to the decision of the learned trial Judge to allow the trials in relation to the complaints of TL the subject of counts (5) to (9) on the indictment and the complaint of AC the subject of count (4) of the indictment to be heard together. The issue raised by that ground is simply whether the evidence of AC in relation to count (4) on the indictment was relevant and admissible in relation to the trial of the applicant on the complaints of TL the subject of counts (5) to (9), bearing in mind that in each case the issue was one of identification of the applicant as the perpetrator of the conduct alleged. For the reasons stated by Pidgeon J and for the reasons which I have expressed, I consider that the decision of the learned Judge to reject the application for separate trials was correct.

14 An application for severance of the indictment so that there be three separate trials was first made to Blaxell DCJ who dismissed the application. Blaxell DCJ approached the matter on the basis that separate trials should be ordered unless in respect of the charges involving one complainant, evidence of the matters involving the other complainants was admissible. After referring to the relevant passages in Hoch at 294-295 and Pfennig at 482-483 and summarising the evidence, the learned Judge concluded that there was nothing in the evidence to suggest any possibility of concoction. As Blaxell DCJ put it:

"The evidence in fact is to the effect that there has been no communication amongst the complainants since their school days. The probative value of the evidence is also to be assessed against the background that there will be an issue as to whether the accused ever had any contact at all with the complainants. In these circumstances it is my view that the evidence is indeed of high probative value.

Each complainant describes events that are strikingly similar in that they were each brought to the Riverside Lodge by Jerry Scott where they met the accused, were plied with alcohol and cigarettes - two of the complainants say a particular type of cigarettes - before sexual activities of a very peculiar kind took place. Taking this evidence at face value, there is to my mind an inherent improbability that the three witnesses could give such strikingly similar accounts unless what they say happened did in fact occur.

For these reasons I have come to the conclusion that the probative value of the evidence outweighs the prejudice to the accused. It follows that the application for separate trials should be dismissed."

15 Subsequently, a substituted indictment was presented joining the nine counts against the applicant in this case with some 79 counts against Mr Scott as a co-accused, some of which involved additional complainants. An application was subsequently made to Gunning DCJ for severance of the counts against Mr Scott from a trial involving the nine counts against the applicant and for severance of the nine counts involving the applicant and a separate trial in respect of the counts involving the three different complainants.

16 On 22 September 1997 Gunning DCJ made an order granting the application for severance and a separate trial involving the counts against Mr Scott, but dismissed the applications for severance and separate trials in respect of the nine counts against the applicant. It was against that background that the application for severance and separate trials was renewed before the learned trial Judge on 21 July 1998, the hearing of which continued on 24 July and 14 August 1998. The application was renewed on the basis that the evidence was related to offences alleged to have been committed between 16 and 20 years previously, there had been no "recent complaint" and each of the complainants had since the previous application for separate trials given evidence in trials against Mr Scott and various of his associates so that there was the possibility of "cross-pollination" on the trial of the applicant or concoction so that the counts involving each of the complainants should be severed from the counts involving the others. It was also submitted that the evidence of one of the complainants would not be admissible on the trial of the applicant on the complaint of another.

17 The reasons for the learned Judge refusing the application are set out in the reasons for judgment of Pidgeon J. Prior to the empanelment of the jury at the commencement of the trial on 17 August 1998 a further application was made by counsel for the applicant for severance on the basis that the previous ruling had not addressed the question of impermissible prejudice that would arise against the accused if the evidence of one complainant were to be used upon the trial of the applicant on the complaint of another. This application was based upon a passage in the judgment of McHugh J in BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 at 305, namely:

"If evidence revealing a criminal or reprehensible propensity is admitted, the trial Judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence."

18 At 308-309 McHugh J made it clear that he was referring to "propensity evidence" in terms of a general propensity or disposition to engage in improper sexual conduct as distinct from similar fact evidence of the kind with which the Court was concerned in this case. The learned trial Judge rejected the application insofar as it rested on the question of discretion and said that any prejudice could be cured by an appropriate direction in relation to any improper use the jury may make of the similar fact evidence.

19 At the conclusion of the evidence in chief of TL, the learned Judge directed the jury that:

"... members of the jury, you have heard [TL] give evidence about the matters which are the subject of counts on the indictment. You have heard mention made of other matters which occurred as well, in addition to those matters. In relation to those other matters I just say to you this: you can't use those other matters as proof of the five counts on the indictment or be prejudiced against Mr Von Porebski because you have heard about them. You have heard about them simply on the basis of background. That's the only use you can put them to."

20 This direction was repeated at the conclusion of the evidence of AC.

21 At the conclusion of the evidence and prior to the addresses of counsel, the learned Judge told counsel, in the absence of the jury:

"In case it's of any assistance in counsel addressing, what I would at this stage be intending to deal with in my charge to the jury - and I'm not going to go through all the warnings that I will have to give, but simply in relation to the issues of similar fact and how that is to be dealt with ... I will be restricting the similar fact evidence to the issue of identification and the commission of the offences at a particular place.

Now, I'm talking about those offences which occurred at the Riverside Lodge not the one offence [sic two offences] which occurred elsewhere. So it can only be related to the offences at Riverside Lodge and to the identification of the accused as being the offender at that location, and that's the only purpose the jury can use that similar fact evidence for.

In relation to whether or not he committed the individual offences against each of the complainants, each of the complainants has to be looked at separately and each count in relation to each complainant has to be looked at separately, and they can only use the evidence of the individual complainant in relation to whether or not they're satisfied beyond reasonable doubt that the particular count has been proved."

22 His Honour made it clear that he proposed to direct the jury that the similar fact evidence could be used only in relation to the issue of identification and the place at which the offence the jury was considering was alleged to have occurred. So far as the question whether any individual offence as charged occurred, the jury would be directed that the evidence of each of the complainants should be looked at separately and that in relation to each offence the jury could only take into account the evidence of the individual complainant in deciding whether or not they were satisfied beyond a reasonable doubt that that particular offence had occurred and not for any other purpose.

23 In his summing up the learned trial Judge directed the jury that they must look at the offences involving each complainant separately. His Honour told the jury that:

"You must look at the offences involving [LC] separately and you can't use any evidence in relation to offences against [LC] in relation to the offences against [TL] or [AC]. You can't use evidence of the offence against [AC] in relation to deciding whether Mr Von Porebski committed the offences against [AC] or [TL] and you can't use the evidence that [TL] gave you of the offences committed against him in relation to your consideration of whether Mr Von Porebski committed the offences against [LC] and [AC].

So when you come to consider the evidence in each trial you must look at the evidence in relation to each of the complainants separately and in relation to each of the offences separately against each complainant. As I said, if you find Mr Von Porebski guilty or not guilty of one, that doesn't mean that he is guilty or not guilty of the other counts involving that complainant or against - of counts involving other complainants.

The other thing that is very important to remember as well is that it is necessary when you are in the jury room to be aware that you cannot draw any adverse inference against Mr Von Porebski from the fact that you have heard that he has committed - it is alleged that he has committed offences against the other complainants, because if you were to do that you would be allowing prejudice to sweep all the offences together. You are not allowed to do that. You cannot draw any adverse inference because of the fact that other offences are charged against the other men - or as they are now. You must consider the evidence in relation to each offence separately and then move to the other and not use one to the other."

24 His Honour then detailed the counts on the indictment and continued:

"Now, they are the nine charges the Crown had laid and they are the nine charges the Crown has to prove, and I have told you before and I will tell you later but I say it now, you heard evidence given by each of those complainants that there had been other conduct on other occasions at the Riverside Lodge, or, in the case of, I think, [LC], if I'm not mistaken, at East Perth. Those matters which they talked about cannot be used by you to prove that if he did those he must have done these particular ones alleged in the indictment.

They are there simply to allow you to see the background within which the nine specific offences occurred and I don't wish thereby saying that nine specific offences occurred in any way to detract from what I said [to] you about keeping them separate. You have to keep them separate and any time that I mention them as a unity, remember, because - in a shorthand way I'm saying look at each of them separately, look at each of the complaints separately and look at each offence against each complainant separately."

25 The applicant did not give evidence at his trial. As the learned Judge told the jury:

"He has maintained his silence and maintained that because of the presumption of innocence which the law affords him as is his right as any citizen."

26 The learned Judge gave a clear direction that the evidence of uncharged sexual conduct was admitted solely to establish the relationship between the applicant and each of the respective complainants against the background of which the alleged offences were said to have occurred. The jury were directed that:

"... if you accepted that there was such other conduct you could not prove, use that to prove, the commission of the particular offences by referring to that other conduct. You must not reason that because there may have been other sexual conduct he was the kind of person who was likely to have done it on the particular occasion you are looking at."

27 The learned Judge went on to limit the use to which the jury could put the similar fact evidence as follows:

"Now, I told you yesterday afternoon after Mr Tavener had addressed you that I did not agree with what he told you about similar fact evidence because he was referring to other activities being used as similar fact evidence which you cannot use. The similar fact evidence which you can use as to the question of identity are these and these alone: that each of the three boys was introduced to Mr Von Porebski by Scott, according to what they said; that the seven offences - not the two at East Perth - but the seven offences occurred at the Riverside Lodge; and that in the room that Mr Von Porebski had at the Riverside Lodge were - each of them was given alcohol and there were cigarettes of a distinctive type. Now, they mention different types of alcohol - they mention different types of cigarettes, but the commonality was the bottom line of the cigarettes and the alcohol.

Now, that is the evidence that you can rely upon despite what the Crown says because they cast it wider than that and you must disregard other circumstances that the Crown referred to, but looking at those three matters, what you have to decide is is it so unlikely that those three people independently could have talked about those three matters in relation to Mr Von Porebski - that someone else committed the offences against them at the Riverside Lodge or somewhere else.

If you decide - and suspicion isn't enough; it's really being satisfied beyond reasonable doubt - that these similarities of these three matters do exist and they can't be explained on any other basis but an accurate and correct recollection - and an accurate and correct recollection to link the identity of Mr Von Porebski as the offender because it's not sufficient if that just raises a suspicion in your mind.

It has to point beyond reasonable doubt to him being the offender, and it's important to remember because those matters don't; that is, the cigarettes or the introduction, the fact that the seven offences occurred at the Riverside and the fact that there was alcohol and cigarettes in the room that the boys went to - they're circumstances which can't of themselves prove that the individual offences occurred but they're circumstances which, if accepted, may point to the identity of the person who committed the offences alleged to have occurred at the Riverside - that before you could use those circumstances against Mr Von Porebski, you would have to be satisfied not only that those circumstances were consistent with his identity being correctly identified by the boys - but you must also be satisfied that those three matters were inconsistent with any other rational conclusion such as that the boys were mistaken, they were confused or there was some innocent explanation as to why they gave evidence of those matters, and Mr Quigley in his address to you mentioned matters of perhaps innocent cross-pollination between the boys - when they were later men and talking to the police about the allegations against Mr Von Porebski.

So provided you're satisfied beyond reasonable doubt that those three circumstances point towards his identification by the boys as the offender, then you look and decide whether or not you can reach the conclusion that those circumstances point to him having committed the offences at the Riverside Lodge."

"There were other matters which were referred to by more than one of the boys in relation to offences such as anus licking or urination in the shower. Those types of matters are not so strikingly similar because they said it happened to them on hundreds of occasions with different men and it was not conduct which is unique to Mr Von Porebski, so that is why you can't use that type of evidence against him. It would be wrong to use that type of evidence because they are not unique to occasions upon which he was involved, because they said it happened to them on hundreds of occasions with other men.

Before you could use those three matters against Mr Von Porebski to prove that he committed the offences at the Riverside Lodge you have to be satisfied that the similarities were so striking or of such a clear underlying unity as to make coincidence very unlikely explanation and whether the similarities indicate that the same person was responsible for committing the offences at the Riverside Lodge.

You remember that the evidence about the cigarettes and the alcohol, although being consistent among each individual boy, was different from boy to boy as to what cigarettes were there and what alcohol was there and used on them on different occasions and we will come to that later on because I'm mentioning inconsistencies between the evidence of [LC], [AC] and [TL] about the types of cigarettes and the types of alcohol and you will have to decide whether those inconsistencies affect your assessment of the credibility of the witnesses as to whether there is any striking similarity which points to Mr Von Porebski committing the offences against them at the Riverside Lodge."

29 Before turning to consider the detailed evidence in relation to each of the alleged offences his Honour said:

"Now, I'm not going to summarise what I've already said, but it's clear from what I have said that you're to disregard anything the Crown Prosecutor said in relation - if you could interpret his remarks as reversing the onus of proof, put that out of your mind because Mr Von Porebski doesn't have to prove anything, and put out of your mind the remarks the Crown Prosecutor said you could use the similar fact evidence for and only use the similar fact evidence for the purpose for which I have just explained to you ..."

30 Contrary to the ruling given by the learned trial Judge counsel for the prosecution had submitted in his closing address that the jury should take account of the evidence of the sexual conduct complained of by one complainant when considering whether or not to accept the evidence of another complainant that he was sexually assaulted. This led to counsel for the applicant making an application that the trial be aborted both for that reason and for the further reason that counsel for the prosecution, when dealing with similar fact evidence, sought to reverse the onus of proof onto the accused by saying:

If the accused is innocent, he must advance a conspiracy theory between each of the three complainants and he hasn't demonstrated that to be the case."

31 It is against this background that the grounds of appeal fall to be considered. In my opinion, the directions given to the jury by the learned Judge were unduly favourable to the applicant. In the absence of any evidence of concoction or collusion on the part of the complainants, I consider that there was sufficient underlying unity, system or pattern in relation to the commission of the alleged offences at the Riverside Lodge and, specifically in relation to the offences against AC and TL, to give rise to the objective improbability of the alleged conduct occurring other than as alleged by the prosecution. The circumstances of each of the offences at the Riverside Lodge were so similar that it was likely that each was committed by the applicant as alleged by the prosecution.

32 The acquittal of the applicant in respect of the three counts involving LC is readily explained by the fact that he had been diagnosed as suffering from paranoid schizophrenia and had been treated as an inpatient on a regular basis since 1987, his regime changing only a week or so before the trial when he came from the Bentley Hospital to give his evidence. Although he denied that his condition had any impact upon his ability to remember things, he admitted that, despite being told by doctors not to mix his medication with alcohol and cannabis, he had continued to do so. When cross-examined he admitted that he used alcohol and cannabis to help him forget what had occurred, but said his memory was not so obliterated that he did not remember specific instances. He used alcohol from the age of 15. When he was working he would drink until the money ran out and get "stinking drunk". He used cannabis on a regular basis. The learned Judge pointed out that the events which were being recounted concerned what happened some 20 years previously when LC was at primary school. He did not tell anybody about the alleged offences until he saw the police in 1995. His explanation was that the applicant had threatened to kill him if he told anyone.

33 The learned trial Judge gave the jury a direction in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. In addition, the learned Judge directed the jury that:

"When you come to consider the evidence of [LC], which is essential for the first three counts on the indictment because there's no evidence independent of him, you would have to be satisfied that you could rely upon him as being truthful and accurate. Now, if, having given it all the scrutiny that I've told you that you must give it, you're satisfied as to his recollection and you're satisfied as to his evidence that the particular event occurred, then of course you can rely upon his evidence, but it is important that you do remember that he is in a position different to other witnesses because of his medical condition.

He says he hears voices all the time and his mind creates pictures. He hears voices from the radio and the television. Can you be satisfied beyond reasonable doubt that he got the correct picture from his memory when he was telling you about Mr Von Porebski? Although there's no medical evidence in this case as to his condition and although there's no medical evidence as to the effect of his medication on his consumption or alcohol or cannabis, or vice versa, you have to be conscious of those factors when you're considering the weight you will have to give and the assessment of [LC] as a witness.

It can't be said that conviction on the unsupported testimony of a person suffering from a mental disorder can't be relied upon. Of course it can be relied upon if you pay attention to all that I have said to you and yet are still satisfied, but it would be wrong for me not to tell you of the care that you have to take in assessing his evidence because of these factors, because we're not talking about a trivial or a transient mental state. We're talking about something which he has suffered from 1987 until now, and unlikely, one would think, having seen and heard him, that he's ever going to be free from that disorder. As I said, you have not the benefit of any medical evidence in relation to these matters and you have to rely upon your own judgments bearing in mind what I have said. So that you have to exhibit considerable caution when considering his evidence."

34 The learned trial Judge then went on to draw attention to a number of inconsistencies in the evidence of LC and the fact that he had a criminal record. All the other directions which the learned trial Judge gave were appropriate.

35 It is against this background that the two grounds of appeal fall to be considered. So far as ground 1 is concerned, I am of the opinion that the learned trial Judge did not err in law in allowing the trials relating to the complaints of TL the subject of counts (5) to (9) on the indictment to be heard together with the trial of the complainant AC the subject of count (4) on the indictment. For the reasons already expressed, the similar fact evidence of TL was admissible against the applicant in relation to the counts upon which AC was being tried and vice versa, at least in relation to the issue of identity. So far as ground 2 is concerned, I consider that the learned trial Judge made it very clear to the jury in terms which they could not fail to understand that the use of the similar fact evidence was limited to the issue of identity. As previously mentioned, this limitation was unduly favourable to the applicant. Like Hoch, above, this was a case in which the accused disputed the happenings which were said to bear such a sufficient similarity to each other in terms of underlying unity, system or pattern as to make evidence of one happening admissible in proof of the others.

36 In Hoch at 295 Mason CJ, Wilson and Gaudron JJ said that such evidence:

"... is relevant to prove the commission of the disputed acts: see Boardman [1975] AC at 452 per Lord Hailsham and Lord Cross at 458; Sutton (1984) 152 CLR at 556-557 per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred."

"In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the voracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. This is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire."

38 These principles were recently applied by this Court in Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999 per Malcolm CJ at 7-8 (with whom Kennedy and Pidgeon JJ agreed). In my opinion, the evidence of AC and TL revealed an underlying unity, system or pattern in circumstances where there was no evidence which raised concoction as a rational hypothesis which could not be excluded beyond a reasonable doubt.

39 Upon the assumption that counsel for the prosecution did make submissions to the jury which were calculated to create a wrong impression with respect to the use to which the jury could put the similar fact evidence, the directions given by the learned trial Judge made it very clear what use the jury could make of that evidence. Insofar as it was necessary to correct any wrong impression, the directions given by the learned trial Judge would have left the jury in no doubt about the limited use which could be made of such evidence. While I would grant the applicant leave to appeal I would dismiss the appeal.

40 PIDGEON J: The applicant stood trial before a jury on an indictment containing nine counts of sexual offences against young boys which were alleged to have occurred some 20 years ago. The applicant was acquitted of the first three counts but convicted of the remainder. The first three counts, being the counts on which he was acquitted, were alleged to have occurred against the complainant LC and involved alleged acts of unlawful and indecent dealing, gross indecency and carnal knowledge against the order of nature. The fourth count, being the first count on which the applicant was convicted, was an act of carnal knowledge alleged against complainant AC. This complainant had a surname different from the first complainant. The final five counts, being counts on which he was convicted, were alleged to have occurred against the complainant TL. These were three acts of carnal knowledge against the order of nature, and two acts of gross indecency.

41 Applications for separate trials were refused. The applicant is seeking leave to appeal on two grounds. The first ground is that his Honour erred in law in allowing the final five counts involving complainant TL to be heard together with count 4 involving the complainant AC. The second ground is that his Honour in his charge to the jury failed to adequately correct a wrong impression given by the Crown Prosecutor to the Jury with respect to the use that the Jury could make of the similar fact evidence.

42 The applicant was employed as the assistant manager of a hotel called the Riverside Lodge in Mounts Bay Road, Perth. It was claimed that Jeremy Michael Scott introduced each of the complainants to the applicant. Scott had earlier been a porter at that hotel, but subsequently left that employment and was employed as a brick paver. The complainants knew each other at the time the events were alleged to have occurred. The complainant TL was in the same class at school as AC. LC was also at the same school, but was a little older and in a higher class. They were each vague about dates. The complainant on the first three counts, being the counts on which the applicant acquitted, was a schizophrenic. This made it more difficult for him to recall some dates.

43 Each of the complainants, at the time, had been involved in conduct of this type with other men. The nature of the defence was that it was accepted that each of the complainants had, when they were children, been abused by many different persons. It was claimed, however, that they had made a mistake when identifying the accused person and this became a principal issue at the trial. The applicant did not give evidence, but called evidence of character and some respected citizens gave evidence that they would trust him with their children.

44 It was submitted that it appeared to be common ground from when the first application was made for separate trials, that unless the evidence of the other complainants could be admitted as similar fact evidence, then there must be separate trials. It was claimed that there was nothing about the evidence which was sufficient to identify the applicant as having committed the alleged offences, as distinct from other men with whom, on hundreds of occasions, the complainants had engaged in conduct of the type charged. It was submitted that any relevance the evidence might have was far outweighed by its prejudicial value. It was also submitted that the earlier rulings were given on the basis of the evidence it was anticipated would be led at the trial, but when the evidence actually was led, it did not reach the standard contemplated at the time the rulings were made. There was a claim that the trial Judge realised that the earlier rulings were wrong in the light of the actual evidence on the record and this was exemplified by rulings he gave which could be seen to be attempting to retrieve the situation.

45 The trial commenced before his Honour Judge Healy on 17 August 1998. The first application to have separate trials was made on 4 December 1996 to his Honour Judge Blaxell. He was asked that there be three separate trials, namely one in respect of each complainant. Judge Blaxell, in giving his reasons for refusing to order separate trials, set out a number of passages from the reasons of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294. These passages said that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason of it revealing a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. The criterion of its admissibility is the strength of its probative force. That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution. Their Honours said that the better view would seem to be that it is relevant to prove the commission of the disputed acts as distinct from being relevant to negative innocent association. Its probative value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.

46 His Honour then set out the following passages from the reasons of Mason CJ, Deane and Dawson JJ in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 482:

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."

47 Judge Blaxell then examined the particular evidence which was before him in the depositions in order to determine, as he said, whether it was of such a degree of probative force, in the sense referred to in those cases, as to transcend or overcome the obvious prejudice that it would have to the accused person. He then examined the features common to all complainants. The first matter of evidence referred to by his Honour as being common to all complainants was that each of the complainants concerned was introduced to the applicant by Scott. His Honour said it was Scott who brought each of them to the hotel where acts of group sex occurred in the presence not only of Scott and the applicant, but frequently in the presence of other boys as well. His Honour then said that each of the complainants alleged that the applicant gave them alcohol and cigars or cigarettes. His Honour said that the complainants, LC and AC both said that the applicant licked or inserted his tongue into their anus. His Honour then said that the complainant LC and the complainant TL both referred to urination as being part of the group sex activities. His Honour referred to evidence which was before him in the depositions as to the complainants witnessing sexual acts involving other complainants. LC stated that he saw the applicant and the complainant AC involved in sexual activity and the complainant TL outlined an occasion when he and the complainant LC were involved in group sex activity with Scott and the applicant.

48 His Honour said that in assessing the probative value of this evidence, he must take into account any possibility of concoction amongst the complainants. He said that there was nothing to suggest any possibility of concoction. The evidence was to the effect that there had been no communication amongst the complainants since their school days. His Honour concluded: (AB"A"11)

"Each complainant describes events that are strikingly similar in that they were each brought to the Riverside Lodge by Gerry Scott where they met the accused, were plied with alcohol and cigarettes - two of the complainants say a particular type of cigarettes - before sexual activities of a very peculiar kind took place. Taking this evidence at face value, there is to my mind an inherent improbability that the three witnesses could give such strikingly similar accounts unless what they say happened did in fact occur."

49 There was then a change in the indictment. The applicant, when he appeared before Judge Blaxell, was the only person appearing on the indictment. An indictment was presented on which both the applicant and Scott were named. This indictment is not in the appeal book but it would appear that the applicant and Scott were charged jointly on the nine counts and there were 79 other counts, involving many complainants, in which Scott was charged separately. On 10 July 1997 the applicant and Scott were presented to his Honour Judge Gunning. There was an application for the applicant to be tried separately from Scott and, in respect of the applicant, the application was renewed for separate trials in respect of each of the complainants. Judge Gunning granted an order that the applicant be tried separately from Scott. He ruled, however, that the nine charges should be tried together and, on this question, adopted the ruling of his Honour Judge Blaxell.

50 On 21 July 1998 the application to have three separate trials was renewed before the trial Judge, Judge Healy. New matter put before his Honour was that each of the complainants had, since the first application, given evidence in trials against Scott and against other associates of Scott including defendants by the name of Ellery, von Reddin and Hudson. It was submitted that there was a possibility of "cross-pollination". It was again submitted that the evidence was not strong enough to amount to similar fact evidence. It was submitted further that the similar fact evidence in the other trials revealed, "that there was nothing about these offences that put the stamp of the applicant on the offence." Each complainant was saying that each of the sexual acts had been committed by other men on hundreds of occasions and that the offences involving these other defendants were also marked by the provision of alcohol and cigarettes.

51 Judge Healy on 14 August 1998 refused the application. The following were his Honour's reasons: (AB "A"208):

"In my view there is no basis for severance been shown and, in my view, using the tests in Hoch and Pfennig - assuming similar fact evidence to be relevant to some issue at the trial - the criterion of its admissibility and the strength of its probative force, the strength lies in the fact that the evidence reveals striking similarities, unusual features, underlying unity, system or pattern such as it raises as a matter of commonsense and experience the objective probability of some event having occurred other than as alleged by the prosecution, which is what the court was saying in Hoch."

52 His Honour then ruled in respect of the question of collusion saying(ABA208):

"In relation to the allegation of collusion which was the principal thrust of the arguments on the last time we were here, which is now not being so strongly relied upon, similarly there nothing has been shown to me that there is any reasonable foundation in fact for the three complainants having got their heads together. It seems to me that it is accepted by the crown that each of these people knew each other at school, that they were the subject of abuse by members of what was referred to as a circle, that they left school and had not seen each other after leaving school and did not go to the police to make complaints but they were approached by the police.

I realise that there were complaints made by one of the complainants some years ago which did not involve the accused, but as to these individual complaints against the accused, they were the subject of statements given to the police after the police had approached the complainants.

The suggestion of collusion is really not one which I find has any reasonable foundation in fact and nor is there any basis for concoction and therefore there's no reason on that basis for leaving the similar fact evidence to one side. They're the brief reasons, so the trial will proceed with the indictment as it presently stands before the one jury and the necessary directions will be given at the end of the trial depending on how the trial has progressed."

53 The trial commenced before the jury. The complainant who gave evidence first was TL who was the complainant referred to in counts 5-9. Before outlining his evidence in chief I would mention that it was brought out in cross-examination that his first homosexual experience occurred in 1974 when he was eight years old. A ball with which he was playing rolled under a car owned by von Reddin. That caused an acquaintance which soon developed into sexual abuse on the part of von Reddin. He would photograph what was occurring. This complainant's sexual experience became extensive. He was subsequently introduced to Scott by the complainant AC who as I mentioned was in the same class at school. One day he found von Reddin at Scott's place and that was the first time he realised that there was a connection between the two.

54 In his evidence-in-chief he was unable to say with any precision when he first met Scott. He thought it was in 1978 or thereabouts when he was 12 years old. He said Scott introduced him to the applicant and this occurred when he was 12-13 years old. He said, however, that he had known Scott for a number of years before Scott introduced him to the applicant. This shows some difficulty of recollection, but the fact that the estimates are out of harmony is not a point in the appeal. He did, however, describe, in some detail, his first meeting with the applicant. He said Scott took him to a room at the Riverside Lodge. It was described as a normal motel room. He said no-one else was there apart from Scott. Porebski and Scott undressed him and they undressed themselves. They took him into the shower and they showered with him. He said both men urinated on him. He said the applicant and Scott then took him into the bedroom. The applicant lay on his back and the witness was placed on top of him and the witness said that the applicant penetrated him with his penis. He said it went on for a long time and he told them it was hurting. He appealed for it to stop. He said while this was occurring Scott was watching and taking photos. He said that Scott then laid him on his side and did the same thing. He said that the applicant then sucked the witness's penis. While he was describing this first meeting, he was asked if he was given anything and he replied, "He used to have cigarettes that came in a round cylinder, and they were coloured cigarettes that he gave us." He was asked what was meant by the use of the word "coloured" and he replied, "The actual filter paper around them was pink, yellow, green, orange."

55 He said that he went back to the hotel a number of times. He would either go there with Scott or by taxi. He then described an occasion when he went by taxi and the procedure which was followed. He said Scott sent him to the hotel by taxi and he was told that there would be $10 left on the refrigerator in the applicant's room. He was to go to the room where he would find $10 on the refrigerator. He was to take that and go downstairs and pay for the taxi. He said that by that time the applicant had changed rooms so he went to another motel bedroom. The witness travelled in the taxi which Scott had obtained. He went upstairs. The door to the room was open and no-one was in it. $10 was on the refrigerator. He took it and went downstairs and paid for the taxi. He went back to the room and the applicant was then in the room alone. He said on his arrival in the room on this occasion he was given alcohol and then added, "Every time I went there he would give us alcohol." When asked the type of alcohol he said, "He used to drink Gin and Tonic." He said that the alcohol affected him. He said that the applicant pulled his trousers down and masturbated in the front of the witness. He then showered the witness. Following that he took him onto the bed and inserted his penis into the anus of the witness. He then fondled the witness and sucked the witness's penis. He said that the applicant made him put his penis in his mouth. The witness was given another $10 and then went back to Scott's house by taxi. The witness described another occasion when Scott took the witness as well as the complainant AC and some of their other school friends. He said that the same type of sexual acts took place. He said that the applicant was sucking the complainant AC's penis and the applicant penetrated the witness again. He was naked.

56 The witness was asked about making complaints to the police. He said he initially did not do so as he was threatened with violence from von Reddin if he told anyone. When he was 16 years old he saw von Reddin down near a park and he did make a complaint to the police because he felt there was danger to children with a paedophile loitering in the park. The complaint at that time related to von Reddin and he made no complaint in respect of the applicant. He did not do this until 1995 when he came forward after "Operation Paradox".

57 At the conclusion of the applicant's evidence the trial Judge said to the jury: (AB74)

"You have heard mention made of other matters which occurred as well, in addition to those matters. In relation to those other matters I just say to you this: you cannot use those other matters as proof of the five counts on the indictment or be prejudiced against Mr Von Porebski because you've heard about them. You've heard about them simply on the basis of background."

58 The witness was then cross-examined. He was called upon to outline some of his earlier experiences from the time he met von Reddin. Von Reddin would also give him money and alcohol. He was asked about other experiences with Ellery. The experiences with other men included acts of urination. It was put to him that he had been abused by so many men on so many occasions that the allegations were being "transported" on to the applicant. It was then suggested that on one occasion Scott took him to his place of previous employment where he may have seen the applicant, but there was no sexual contact. While being cross-examined (AB187) he referred to Havana Cigars. He did not mention as evidence in chief, but said it was a thing that came back to him. He referred to coloured cigarettes "to attract the kiddies".

59 The complainant next called was AC, the complainant in the fourth count. He too was born in 1966. This witness said that when he was 10 years old he was introduced to Scott by the previous complainant (LC). He said that in about 1978 Scott took him to the Riverside Lodge where he met the applicant. He said he was taken there by Scott on about six occasions. He said that Scott would take from under a mat a key left by the applicant. Scott with this key would then let them into the room and from the room would ring the applicant who would then come in. The witness said in respect of the applicant:

"We would smoke his cigarettes, we would drink alcohol and then it would lead on to sexual matters after that."

60 He said in respect of alcohol he would be given wine or whatever was available. He was then asked about cigarettes and said:

"Yes I can remember the specific detail about the cigarettes. They were Sobrani Black Russian. They had a gold filter and they had a black stem or smoking part of it. Sometimes there was also Party Sobranis and they were a multi - they came in different colours - yellows and pinks and..."

61 He remembered from time to time other boys being present. The other boys present included the complainant LC and TL. He said that Scott regarded him as his "number one boy".

62 The witness was asked what happened in the room between himself and the applicant. He said although he had gone there on a number of occasions, he could only isolate one occasion which he could recall. He said it was isolated because of a particular event that took place. He described what happened as follows referring to the applicant as "George":

"Yes, thank you?---We went into the room, as we normally would. The key would be left under the mat. We would go into the room. Jerry would ring George. George would then come up a short time afterwards because most of the time, if not all the time, he was still on duty as a manager. On this particular occasion we got undressed. When I say 'we' I mean myself, Jerry and George. We went into the bedroom. There was fondling of the genitals. I was asked - - -"

The witness was interrupted but continued on as follows:

"Yes?---I can very clearly remember and George bent me over onto the bed and inserted his penis into my anus. I recall it hurting substantially. He then removed his penis and then went over to Jerry Scott and inserted his penis into Jerry Scott and then finished his business there.

Where was Mr Scott at that time?---On the other side of the bed.

Did you say anything to Mr Porebski at that time when he inserted his penis in your anus?---I said that it hurt.

Did he say anything to you?---Not that I can recall."

63 He then gave reasons why he did not report it at the time. At the conclusion of his evidence his Honour gave the following direction to the jury: (AB226)

Members of the jury, just before you leave, I will repeat again what I said in relation to matters that you heard in TL's evidence; that AC made mention of other things that happened to him when he was at the Riverside but he has given specific evidence in relation to one of the counts on the indictment, which is the fifth count on the indictment, of the incident he said occurred on the bed.

That's the charge that he is giving evidence about which Mr Von Porebski is facing, so evidence of other sexual conduct which may have occurred at that place is admitted before you solely for the purpose of establishing some sort of a relationship between the two and as to set the context in which this particular offence occurred.

Even if you accept that there was any - that there was other conduct you cannot use that other conduct to prove that this offence occurred, the one we're specifically talking about on the indictment, and you can't reason that because Mr Von Porebski may have engaged in other sexual conduct therefore he must have engaged in the particular conduct which is the subject of the fifth count on the indictment."

64 It would appear his Honour intended to refer to the fourth count. This direction was given at the end of the day as it was thought the evidence-in -chief had concluded. There were some further questions asked of the witness, as evidence-in-chief, the following day. In cross-examination he referred to extensive abuse he suffered as a child and said it occurred on hundreds and hundreds of occasions. He described the nature of the abuse, but when asked whether he suffered anal intercourse he said, "Only by one person: that man over there" which would appear to have been a reference to the applicant. The cross-examination was on the basis that he had been called upon to perform many acts in a long life of abuse. The nature of the cross-examination was that it had occurred so often he would have difficulty in recalling the names of the persons involved. He was asked to describe in detail the layout of the Riverside Lodge. He referred to the applicant changing rooms at one stage. He said that the applicant gave him both Sobrani Black Russian cigarettes and the coloured cigarettes. He too was asked whether he may have unwittingly attributed to the applicant acts which other people had performed on him. His reply was, "Absolutely not." He said, in referring to the applicant: "George used to call me Buzzy Wuzzy with his accent." He was then cross-examined on the basis he tried to suppress the memories and had a wrong recall. It was put to him that he had never been in a room with the applicant and the witness replied that Scott was then working as a brick paver and not as a porter. The witness said:

"At no time had he taken me to the Riverside Lodge other than to see George Porebski."

65 The last of the complainants to give evidence was LC, the complainant in the first three counts. He was born in Wales on 6 July 1964. He met Scott when he was 12 years old. He said that in the beginning he thought he was just a friend interested in music. He said that he then "did sexual things to me." He said Scott introduced him to the applicant and to Ellery. He was introduced to the applicant at a house in which Scott then was living in Blake Street, North Perth. The witness lived two doors down. He was twelve and a half years old at the time of this introduction. He said that the applicant gave him Black Russian Sobrani cigarettes to smoke. He then said without indicating to what he was referring, "I'm not sure whether it was gold or silver." When asked about the applicant the witness said that something happened to him first of all at Gardiner Street, East Perth and subsequently at the Riverside Hotel. This was also a house at which Scott lived, I assume at a later time. The complainant said that what happened at Gardiner Street was that the applicant penetrated his anus with both his tongue and penis. He said he thought it only happened once at Gardiner Street. He said that Scott was in another room. He said also that the applicant told him that he would kill him if the witness ever told anybody. He then said there was an incident at the Riverside Hotel. He had been there several times. Scott took him to the Riverside Hotel. Sometimes he would take him in his mother's motor car and sometimes on the back of a motor cycle. He could not recall how many times he went there, but said it was more than once. He said that the procedure was that Scott went to see the applicant and then would come back with a key or with the applicant himself and they would go up to the applicant's hotel room. He said the applicant would then have sex with Scott and that the applicant sucked his penis while he was there on one occasion. He said the applicant went back to finish his shift and later came back with a bottle of champagne and they drank champagne and smoked cigarettes. The applicant sucked the witness's penis after they had had a few drinks. He said every time he went to the applicant's place he was given alcohol. He described, in evidence, his schizophrenia. At the end of the evidence in chief his Honour repeated the following warning: (AB441)

"Members of the jury, as I told you in relation to the other evidence you have heard, the evidence that you have heard in relation to other sexual conduct which LC has referred to has been put before you solely to establish the matter of relationship, and even if you accept his evidence in relation to that then you can't use it to prove the commission of the three offences which are on the indictment, and similarly you cannot reason that because he may have been engaged in other sexual conduct, therefore he must have engaged in the three counts of sexual conduct which are contained in the indictment.

Or in relation to the other men - and that goes for each of these people. You look at each of them and I will tell you more about this in detail when I talk to you at the end of the trial, but each person gives evidence about their own matters and each of those matters is looked at in isolation because you have got nine trials going on at the same time. You look at the evidence in relation to each of those separate offences separately. I will say more about it later."

66 He was cross-examined about a number of convictions he had, including convictions for dishonesty. He had been at the Graylands Hospital and Heathcote. He spoke about becoming disorientated. When the defence had closed its case his Honour, in the absence of the jury said to counsel: (AB586)

"The jury have now left. In case it's of any assistance in counsel's addressing, what I would at this stage be intending to deal with in my charge to the jury - and I'm not going to go through all the warnings that I would have to give, but simply in relation to the issues of similar fact and how that is to be dealt with - and I will put this briefly: in my view I will be restricting the similar fact evidence to the issue of identification and the commission of the offences at a particular place.

Now, I'm talking about those offences which occurred at the Riverside Lodge, not the one offence which occurred elsewhere. So it can only be related to the offences of Riverside Lodge and to the identification of the accused as being the offender at that location, and that's the only purpose the jury can use that similar fact evidence for.

In relation to whether or not he committed the individual offences against each of the complainants, each of the complainants has to be looked at separately and each count in relation to each complainant has to be looked at separately, and they can only use the evidence of the individual complainant in relation to whether or not they're satisfied beyond reasonable doubt that the particular count has been proved."

67 It is accepted that his Honour gave correct directions to the jury in his summing up on the law relating to similar fact evidence. I shall refer to them as they have a bearing as to the extent the evidence was admissible. His Honour dealt firstly with evidence of sexual activity with the applicant that was not the subject of charges. He said that this was limited to the question of relationship and as part of the context in explaining how the offences were alleged to have occurred and explained that the evidence could not be used to prove the commission of the particular offences by referring to that conduct. His Honour told the jury that the issue of identification was common to each of the offences that he had described to the jury. He said the Crown were required to prove that the person on trial was the person who committed each of the offences. His Honour then said: (AB722)

"Now, sometimes there may be such striking similarity between different acts that you as a jury may be satisfied beyond reasonable doubt that the person who committed one set of acts must have committed the other set of acts.

A person may be said sometimes - it's sometimes put that they put a certain stamp upon the offences, and that could not be so if the offences could be explained by matters of coincidence or by matters of some other innocent explanation as to why the people making these allegations would have alleged that the person did it in the particular circumstances alleged, and here, when we're talking about this matter of there being similar circumstances, we're only talking about the seven offences which occurred at the Riverside Lodge. We're not talking about the two offences against Chapman which are alleged to have occurred at Scott's place in East Perth because they're not part of - the circumstances there are not the same as the circumstances which the crown relies upon for proof of identity in relation to the offences at the Riverside Lodge.

Now, I told you yesterday afternoon after Mr Tavener had addressed you that I did not agree with what he told you about similar fact evidence because he was referring to other activities being used as similar fact evidence which you cannot use. The similar fact evidence which you can use as to the question of identity are these and these alone: that each of the three boys was introduced to Mr Von Porebski by Scott, according to what they said; that the seven offences - not the two at East Perth - but the seven offences occurred at the Riverside Lodge; and that in the room that Mr Von Porebski had at the Riverside Lodge were - each of them was given alcohol and there were cigarettes of a distinctive type. Now, they mentioned different types of alcohol, they mentioned different types of cigarettes, but the commonality was the bottom line of the cigarettes and the alcohol.

Now, that is the evidence that you can rely upon despite what the crown says because they cast it wider than that and you must disregard other circumstances that the crown referred to, but looking at those three matters, what you have to decide is it so unlikely that those three people independently could have talked about those three matters in relation to Mr Von Porebski - that someone else committed the offences against them at the Riverside Lodge or somewhere else."

68 The question I shall now examine is whether the evidence led in the trial was significantly different from the evidence considered by Judge Blaxell when he refused to order separate trials. If it were and if his Honour's ruling were otherwise correct the question could arise as to whether the conviction is safe by reason of inadmissible and prejudicial evidence being led. The first difference to which I shall refer is the fact that at the time the first ruling was made, it was thought that each of the three acts alleged in respect of LC occurred at the Riverside Lodge. The indictment was subsequently amended to allege that the second and third act involving LC took place in Scott's residence at East Perth. LC, in evidence, said that the first act took place at Gardiner Street and he then described the two offences corresponding to the second and third counts. He then described an act at the Riverside Lodge. I do not consider that this in any way affects the pattern. Scott introduced this complainant to the applicant. It makes no difference that it was at his house and not the hotel. Scott subsequently took him to the hotel.

69 The next difference to which I shall refer is the extent to which other complainants witnessed acts. I shall repeat my earlier reference to the reasons of Judge Blaxell:

"His Honour referred to evidence which was before him in the depositions as to the complainants witnessing sexual acts involving other complainants. LC stated that he saw the applicant and the complainant AC involved in sexual activity and the complainant TL outlined an occasion when he and the complainant LC were involved in group sex activity with Scott and the applicant."

70 In respect of this latter proposition, TL outlined to the jury an occasion when AC and a number of friends present and he saw the applicant sucking AC's penis. The fact that he did not refer to LC would be of no significance. LC did not say that that he saw the applicant and AC involved in sexual activity but AC referred to times when LC and TL were present. There was, therefore evidence of the type of combinations referred to by his Honour although they did not involve the actual persons mentioned by him. The next difference is that Judge Blaxell said that the complainant LC and TL both referred to urination as part of the group sex activities. TL was the only complainant to refer to this so urination cannot be regarded as part of the pattern.

71 It was submitted by Mr McCusker that there was nothing unusual in respect of the acts themselves. He referred to the fact that in Scott's trial the presiding judge said the acts could not be used on the basis of similar fact evidence as there was nothing unusual in the acts themselves. It was submitted that other men had engaged in the same activities in substantially the same way. It could be said that the acts themselves are the type of acts which could be expected to take place no matter who were the participants. However I am satisfied that when the acts themselves are combined with the surrounding circumstances they reveal a pattern of activity such that, if accepted, bears no reasonable explanation other than the inculpation of the applicant in the offences charged. I would refer particularly to the fact that each complainant had made contact with Scott before meeting the applicant. It was Scott who introduced them and who in some cases took part in what occurred. The first and second complainant each referred to the fact that the applicant interrupted his shift to come into the bedroom. The third complainant's evidence was consistent with that. Two of them spoke of the change of bedrooms. In the cases where Scott himself did not go, he made arrangements for the third complainant to reach that destination in a way somewhat similar. The next peculiar feature, common to the three complainants is the availability of a key to enter the assistant managers private bedroom. The complainants had been involved with similar activity with many other men but this took place at other places It was not suggested that the acts with the other men took place at Riverside Lodge in the absence of the applicant. The facts and pattern relating to Riverside Lodge are peculiar to the applicant and support the fact that the complainants were not wrong or mistaken when they each identified the applicant.

72 The next area of similarity is for each boy to be testifying as to cigarettes with unusual and noticeable features being offered to him. The cigarettes particularly reveal a pattern of striking similarity. They were of an unusual kind which attracted notice and were given to boys in primary school. They could be seen to be of a type to interest schoolboys. It could be expected that the complainants would have some difficulty in properly describing them. Cigarettes of the type described were not a feature of the acts performed with the other men. The next area is that young schoolboys were given alcohol to drink prior to the activity taking place. In summary there was a similarity of ages, of entry into the bedroom, of group activity and the use of alcohol and cigarettes. I consider these features, independently of the act of urination, are sufficient to give the evidence the quality I have described.

73 I consider the combination has a high probative force which well outweighs its otherwise prejudicial effect. This otherwise prejudicial effect is lessened by the fact that some of the evidence where one complainant witnessed acts against the other would have been admissible in any event either as direct evidence to prove the act or as evidence to prove relationship. The decisions made to refuse to order separate trials were correct and remain correct after considering the evidence before the jury which was substantially similar. Nothing arises to bring into question the safety of the conviction.

74 I do not consider that it could be said that his Honour, by giving the directions he did, had some doubt on the correctness of the earlier rulings and was endeavouring to retrieve the situation. His Honour first gave the direction at the conclusion of the evidence in chief of the first witness and it would not then have been possible to form a different judgment on the question previously decided. His Honour, at that stage, was speaking more of the evidence going to prove relationship inasmuch as he was referring to acts of a similar nature performed against that particular witness and which were not charged in the indictment. His Honour's main aim, at that stage, was to ensure that the jury were not using this evidence as direct evidence to establish the offence. The position was the same in respect of the direction he gave at the conclusion of the evidence-in-chief of the next complainant. The direction related primarily to relationship and to make the point that the evidence could not be used to show that because he engaged in other sexual conduct, therefore he must have engaged in the particular offence with which he was charged. His Honour's direction at the end of the evidence-in-chief of the third complainant went to both relationship and evidence of other complainants that might establish a pattern. His Honour was again saying what the evidence could not be used for. He said he would later give a direction as to how it was to be used. When the defence had closed its case his Honour, in the absence of the jury then indicated the limited purpose which he considered the evidence could be used. He was restricting it to the issue of identification and the commission of the offences at a particular place. By this stage of the trial this was the main issue. The object of preventing the jury from using the evidence for impermissible purposes could no doubt be best achieved by limiting it to the live issue. It could not be said that his Honour ruled this way because he had some doubt as to the earlier rulings. I would dismiss the first ground.

75 The second ground claims that the trial Judge failed adequately to correct the wrong impression given by the Crown Prosecutor to the jury with respect to the use that the jury could make of similar fact evidence. The learned Crown Prosecutor, in his final speech to the jury, outlined how the similar fact evidence could be used. In so doing he went beyond the restricted use as to identification which had been indicated by his Honour. It may well be arguable that, had there been no such restriction, counsel did not wrongly state how, at law, similar fact evidence may be used. That is not to the point. His Honour had indicated a restricted use and counsel for the Crown was required to keep within that restriction. At the conclusion of his address, counsel for the defence submitted to his Honour, in the absence of the jury, that the way the learned Crown Prosecutor dealt with the similar fact evidence was directly contrary to the trial Judge's ruling. His Honour said that he would address in the way he had earlier indicated. His Honour then brought the jury back and told them that he took a different view from the Crown Prosecutor. He would address them the following day and would instruct them on the law 76 relating to similar fact evidence. His Honour's words, at that stage, were: (AB603)

"In relation to the issue of there being what is called similar fact evidence - and we're talking here about the introduction by Scott, we're talking about the cigarettes, we're talking about the alcohol at the Riverside Lodge, I will tell you in what way that evidence can be used and my telling you about that won't agree with what Mr Tavener told you about how you could use that evidence, so I flag that."

77 His Honour summed up to the jury on the following day. He gave what was accepted to be a correct direction on the question of similar fact. I have already set portion of it out. His Honour repeated the fact that he did not agree with what the Crown Prosecutor had told them about similar fact evidence "because he was referring to other activities being used as similar fact evidence which you cannot use". His Honour then described how it could be used and confined it to the question of identity. The learned Judge made it quite clear to the jury that they were to act on the law as he outlined it and they were to disregard what the Prosecutor said. In addition, it had been said repeatedly throughout the trial that the jury were to take the law from his Honour. In the terms of the second ground his Honour did adequately correct a wrong impression given by the Crown Prosecutor to the Jury with respect to the use that the Jury could make of the similar fact evidence. He did this by instructing them to disregard what the Prosecutor said and then gave a correct direction as to how the jury were to proceed.

78 I would grant leave to appeal but I would dismiss the appeal.

79 IPP J: I have read the reasons to be published by Malcolm CJ and Pidgeon J. I am in agreement with those reasons and have nothing further to add.