34 In MacKenzie v The Queen all Justices of the High Court held that the verdicts were not so inconsistent to render the conviction unsafe and unsatisfactory for that reason alone. However, the conviction was set aside on a separate ground, namely that there had been a miscarriage of justice as a result of inadequate direction to the jury.
35 In the present appeal it was not suggested that there was some inconsistency between the case that was left to the jury and the way in which the Crown had conducted the case, as for instance in King v The Queen (1986) 161 CLR 423 and in Alister v The Queen (1984) 154 CLR 404. Further, since the submissions on behalf of the appellant on this ground did not descend to particularity, it is not necessary to refer to the whole of the evidence.
36 In general terms, it was submitted that, having regard to the findings of not guilty on counts one, two, four and five, the jury must have treated the evidence of SA and MM as generally unreliable. However, this is to state the position too broadly. Clearly, the jury considered the evidence of those two witnesses insufficiently reliable to sustain a finding of guilt on counts one, two, four and five. Neither was able to fix accurately or even reasonably approximately the dates of the incidents at Pommey's Beach. The events of the evening as recounted by SA in relation to count one were very similar to those recounted by MM in relation to count five, although neither saw the other being assaulted. Similarly, the events of the day or evening when the girls were diving off the boat ramp as described by SA in relation to count two and by MM in relation to count four were very similar. Although MM claimed to have seen SA come out of the water shaking and upset, neither witness observed the assault on the other or observed any conduct of the appellant consistent with an assault in the water on the other. MM said that the assault at Pommey's Beach was on the evening of the same day as that of the assault in the water. SA was unable to remember.
37 The two daughters of the appellant gave evidence in the defence case. DL was 22 years old when she gave evidence and recalled camping at Pommey's Beach once when she was in early high school. LR recalled being at Pommey's Beach when she was about nine or ten. They both recalled taking their clothes off and swimming in the water that night and later sitting and talking around the camp fire. Otherwise they noticed nothing unusual and nothing consistent with an assault on either of the complainants by the appellant.
38 However, in relation to counts three, six, seven and eight where it was alleged that the offences had occurred in the appellant's shop or house, the situation was quite different. On neither version of the complainants did anything occur in the presence of the other or anyone else. The possibility of joint concoction was not put to the jury on behalf of the appellant or suggested to either of the witnesses in cross-examination and it was not submitted on the appeal that his Honour should have raised that matter with the jury. Moreover, the evidence on these counts wore a striking common feature. Each complainant said that the offence committed on her occurred when the appellant set up a projector in the shop, or a TV and video in the house, began to show pornographic movies and exposed his erect penis. That evidence, if not concocted by the two girls together, was capable of being accepted by the jury as not having been fabricated or imagined by each girl independently. Whereas the jury were prepared to entertain a doubt about events on the beach and in the water they did not entertain doubts as to the allegations about what happened in the shop and at the house. Nor was the jury obliged to entertain such a doubt. The verdicts were capable of being sustained on a rational basis.
39 Moreover, the evidence in relation to the ninth count contained a further item lacking in the evidence on the other counts. The complainant claimed to be able to remember with some precision the date on which the offence occurred although it was some 16 years previously. She had what the jury were entitled to accept as an acceptable basis for having such a recollection. The appellant, according to the complainant, invited her, within a very short space of time after the alleged assault, to return and watch some X-rated movies with him. Moreover, despite the absence of any allegation about pornographic movies, the complainant described a method of approach on the part of the appellant which was similar to that alleged in relation to the other offences in the shop.
40 Something was sought to be made, in this context, of the apparent inconsistency and the failure to agree on count seven (causing digital penetration of the vagina) as compared with the conviction on count eight concerning the immediately following alleged digital penetration of the anus. The evidence was, however, that the complainant did not include in her statement to the police the assertion which she made in evidence that the appellant made her vagina bleed. There was no such inconsistency in relation to the count eight evidence. If it matters, this could very well explain a lack of agreement on count seven.
41 There was no inconsistency between the verdicts of guilty and the verdicts of acquittal.
JOINDER OF COUNTS AND CROSS ADMISSIBILITY
42 After hearing evidence on the voir dire Higgins J gave a lengthy and considered decision on the question of joinder on 14 September 2000. It is not clear on the material in the appeal exactly what the appellant's counsel asked for in relation to the proposed 18 counts involving seven complainants. It appears that they were set out in the document variously described in the transcript as a "draft" or "original" indictment. The exact nature of that document is not clear. It was not available in the appeal. Be that as it may, the trial judge ruled that nine of the proposed counts should be "severed" and that the remaining nine be joined in the same indictment. His Honour's reasons may be summarised thus:
(a) The evidence as to the several swimming incidents was cross-admissible, that is, as to each incident in relation to every other, as part of the "res gestae";
(b) The evidence as to the several pornographic material incidents was cross-admissible, as to each incident in relation to every other, as "similar fact" evidence;
(c) Evidence of (a) and (b) was also cross-admissible, that is, the evidence of (a) was admissible to prove (b) and the evidence of (b) was admissible to prove (a).
43 I agree with the submissions on behalf of the appellant that (a) and (b) were not cross-admissible on a "res gestae" basis or on a strikingly similar fact basis. The Evidence Act 1995 (Cth) (the Evidence Act) does not propound either basis as a test for admissibility.
44 Nevertheless, in my view, (a) was relevant to (b) and vice versa. The fact, if proved that the appellant engaged in the sexual abuse of two young girls in his employ by touching them inappropriately and by exposing his penis on some occasions, affected the likelihood or otherwise of the hypothesis that he showed them (and a third) pornographic material on video or film on other occasions, and conversely. Therefore the evidence as a whole passes
the first and most important test of admissibility and the various elements of that evidence are "cross-admissible".
45 Higgins J considered that the evidence as to (a) and (b) as a whole was tendency evidence under s 97 of the Evidence Act and that to be admissible it had to pass the stringent test of significant probative value imposed by s 101. It appears that his Honour also considered that the evidence as to (a) and (b) as a whole was subject to the coincidence rule imposed by s 98 and hence subject also to the significant probative value test imposed by s 101.
46 However, I think it is necessary to say that the evidence as to the swimming incidents and as to the pornographic materials evidence taken as a whole was not tendered by the prosecution as tendency evidence under s 97. No tendency notice was given. On the other hand it has to be borne in mind that the relevance of the swimming incidents to each other and of the pornographic material incidents to each other, and the evidence of both series of incidents taken as a whole, lay in the very improbability (as the jury might see it) of the incidents occurring coincidentally. If the various incidents were "related events" under s 98, it followed that the coincidence rule imposed by s 98 applied, and a coincidence notice should have been given (it was not).
47 In either event, whether under s 97 or s 98, the test of significant probative value under s 101 would have remained the same. His Honour took the view that the significant probative test was an aggregation of the "no reasonable hypothesis" test which his Honour thought was made necessary as a result of the decision of the High Court in Pfennig v The Queen (1994-95) 182 CLR 461 and, in the circumstances, the further test of "no possibility of concoction" which his Honour considered was necessary as a result of the High Court decision in Hoch v The Queen (1988) 165 CLR 292.
48 It may be desirable to elaborate a little here. McHugh J stated in Pfennig at 529 that if the evidence does no more than to prove a mere propensity or tendency to commit crime of the kind in question, it will never have sufficient probative value to make it admissible. However, with respect, there may be cases in which the probative value does have that character. Evidence which shows nothing more than propensity might conceivably go to rebut a positive assertion by the accused of previous good character. Another example might be evidence of the possession by an accused of materials depicting children in pornographic acts where the accused is charged with a sexual offence against a child (an example which is close to the situation in the present case). Indeed it seems to me that sometimes evidence of what at common law is called "strikingly similar facts" may prove no more than tendency, and thus raise considerable risk of unfair prejudice. However such evidence is commonly admitted because of the "striking" nature of the similarity, which is what is said to give the evidence strong probative value.
49 On the other hand, evidence which goes to negate coincidence may be of considerable probative value and involve little risk of unfair prejudice. McHugh J acknowledged at 529 that evidence which is relevant on other than tendency basis might also go to show tendency, and concluded that evidence of that nature does not have to reach such a high standard of probative value as that which goes only to show tendency or propensity. (The terms seem to be used interchangeably in cases confined to the common law.) Although his Honour was speaking of the position at common law it seems to me that the Evidence Act requires a similar approach. Evidence which shows tendency but which is not tendered for that purpose may be relevant because it tends to negate coincidence and may be tendered for the latter purpose only. In that case it will fall outside s 97. It will not be tendency evidence for the purposes of the Evidence Act, because although it is evidence which has the effect of showing tendency, it is not tendered for that purpose but for the purpose of negating coincidence.
50 If evidence of "related events" is tendered for the purpose of negating coincidence, the high standard set by s 101 must nevertheless be applied. If the evidence negating coincidence is also capable of showing tendency, then the jury must be warned that they must not treat it as evidence of tendency and must not indulge in reasoning based on tendency.
51 McHugh J in Pfennig at 528 pointed out that there is an incongruity between weighing up probative value, which goes to proof of an issue, against prejudicial effect, which goes to the fairness of a trial, and that what a trial judge is required to do is to make a value judgment and not a mathematical calculation, so that the tendency evidence will be allowed only if "fair minded people think that the public interest in adducing all the relevant evidence of guilt must have priority over the risk of an unfair trial".
52 In my view, it is inevitable that the nature of such a value judgment means that different judicial minds will differ in the making, and reasonably so. In the present case it is consistent with the reasoning of the trial judge that he considered that the evidence of the swimming incidents made it more likely that the alleged pornographic materials incidents were not simply a coincidence and, or alternatively, that evidence of the pornographic materials incidents made it more likely that the alleged swimming incidents were likewise not simply a coincidence. If that is how his Honour approached it, I would agree with him, allowing that others might reasonably disagree. The important thing is that in making such a judgment his Honour has not been shown to be in error.
53 Returning to the application of Pfennig and Hoch, my view is that the decision in neither case governs completely a question of admissibility of evidence which is subject to the Evidence Act. There is nothing in the Evidence Act that says that for the purpose of deciding pursuant to s 101 whether probative value substantially outweighs likely prejudice, the trial judge must be convinced beyond reasonable doubt as a matter of fact that, if the challenged evidence is accepted, there is no reasonable hypothesis consistent with innocence. The dissenting judgment of McHugh J in Pfennig at 530-532 provides strong reasons for not reading that implication into the Evidence Act. Furthermore, whilst it is true that tendency evidence under s 97, and evidence subject to the coincidence rule under s 98 is circumstantial evidence, it is now well established that not every item in the circumstantial evidence chain which goes to prove guilt must itself be proved beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573. It would be strange if a judge was required to find a fact established beyond reasonable doubt for the purpose of admissibility when the jury might take the same fact into consideration for the purpose of guilt even when it had not been proved to that standard.
54 Nor, in my view, is there anything in the Evidence Act that provides for what is believed to be the effect of the decision in Hoch, namely that where several complainants make accusation of separate offences of a sexual nature against the same accused, their evidence is not admissible unless the trial judge is satisfied beyond reasonable doubt that there is no possibility of concoction on the part of the complainants.
55 I would add that this gloss that appears to have been placed on Hoch leads in practice to a presumption that complaints by several complainants are presumed to be concocted unless the trial judge is convinced beyond reasonable doubt, as a matter of fact, that the evidence, if accepted, proves the accused guilty. It would be surprising if the common law had developed to give rise to such a startling proposition. It is certain that there is no such provision in the Evidence Act.
56 As in my view the evidence was not tendered as tendency evidence and was not evidence of "related events" it follows, that his Honour set too high a barrier for the cross-admissibility of the evidence of the swimming incidents and the pornographic material incidents. However, his Honour having found that the evidence overcame that barrier, the appellant cannot be heard to complain that his Honour fell into appellable error. Further, having seen and heard the witnesses on the voir dire his Honour found that their evidence was clear and compelling. There was therefore a firm basis for his Honour's ruling that the probative effect of the evidence substantially outweighed the danger of likely prejudicial effect. I do not see any basis on which it is appropriate for this Court to interfere with that ruling.
57 I should acknowledge that my own view appears to conflict with two decisions in New South Wales.
58 In R v Locke (unreported, New South Wales Supreme Court, 25 March 1997), Hunt CJ at CL said at 12 that, even where evidence has significant probative value, it still has to pass the test posed by s 101 of substantially outweighing the prejudicial effect it would have on the accused. That, according to Hunt CJ at CL, was the exercise discussed by the High Court in Pfennig in which it was said that, in considering the admissibility of coincidence evidence (and not just the exercise of discretion to exclude), the trial judge must ask whether there is a rational (meaning "reasonable") view of the similar fact evidence which is consistent with innocence, and that only if there is no such view available can a conclusion safely be reached that the probative force of the evidence outweighs its prejudicial effect. Such a high test of admissibility was required, because the prejudicial effect of tendency evidence (sic) is that "the ordinary person naturally thinks that a person who has an established propensity whenever a particular opportunity arises will therefore have yielded to that propensity in the circumstances of the particular case," a principle which Hunt CJ at CL took to be laid down by the High Court in Pfennig at CLR 482-3 and 528. So expressed, the principle appears to attribute to the individual trial judge a fact-finding capacity naturally lacking in a group of twelve ordinary persons, again a principle which is at odds with the long held assumptions and values of the criminal justice system.
59 In Foley v R (unreported, NSW Court of Criminal Appeal, 5 June 1997) evidence of other acts of a sexual nature were tendered at trial in order to prove "guilty passion" directed towards the complainant. On appeal the point was taken that the evidence was tendency evidence under s 97. Stein JA said that under s 101 "tendency evidence (if that is what the evidence was in this case) cannot be used unless its probative value substantially outweighs any prejudicial effect: see Pfennig v R and unless there is no rational or reasonable view of the tendency evidence which is consistent with the innocence of the accused: see R v Locke." (emphasis added).
60 In my respectful opinion it should be observed that s 101 does not provide the double test as suggested by Stein JA in Foley and that Hunt CJ at CL did not hold to that effect in Locke. For my own reading of what was said in Pfennig, that case was concerned with similar fact evidence at common law (which for the purpose of the case appears to have been equated with "propensity" evidence at common law). The omission from the Evidence Act of any reference to similar facts as a basis of admissibility of tendency evidence under s 97 and s 101 suggests that this area of the common law was intended to be avoided. Moreover, the coincidence rule section, s 98, does not govern the admissibility of all evidence which tends to negate coincidence. The section applies only to evidence of "related events" which the prosecution seeks to rely upon to prove a relevant fact. "Related events" according to s 98(2) must be "substantially and relevantly similar" and the circumstances in which they occurred must be "substantially similar". Otherwise such events are not caught by s 98. The view of the textwriters eg. Bellamy and Meibusch, Commonwealth Evidence Law (2nd ed) par 98.1 supported by the Report of the Australian Law Reform Commission (ALRC 26, pars 810 - 816) is that Part 3.6 which includes s 97 and s 98 is directed at similar fact evidence as it was regarded before the Evidence Act. Since the concept of similar fact evidence in criminal cases derived essentially from the perceived danger of juries viewing it as proof of tendency, which is dealt with under s 97 not s 98, the view is not very helpful. Moreover, as Bellamy and Meibusch observe at par 98.8, s 98 does not require that evidence adduced for coincidence reasoning purposes be evidence of similar facts (or evidence of "related events") for the purpose of admissibility. If it is not, s 98 does not apply. In the present case the trial judge appears to have considered that the swimming incidents and the pornographic materials incidents were "related events" and thus had to satisfy s 101. The possibility that they might not be "related events" as defined by s 98(2) and therefore outside the restrictions of s 101 does not appear to have been considered. The less strict requirements of s 137 would have applied.
61 Since it appears that Higgins J applied too stringent a test for allowing the evidence as to the swimming incidents on the one hand and the pornographic materials incidents on the other hand as cross-admissible, it is likely that the application of the less stringent test under s 137 would have led to the same result. In any event his Honour went on to express himself in the language of s 101. After applying the finding that the evidence satisfied both the no reasonable hypothesis test of Pfennig and the rebuttal of the presumption of concoction of Hoch, his Honour said that there was nothing in the complaints or in their terms, even granted the considerable delay, that would support the view that the evidence was lacking in significant probative value. Clearly his Honour was of the further view that the significant probative value substantially outweighed the likely prejudice. It is sometimes overlooked that the greater the probative weight the greater the prejudice, in a sense. What is in issue is not prejudice in the general sense, but unfair prejudice. No potential unfairness is demonstrated, in my view, which was not to be dealt with in directions. In this respect it must be remembered that his Honour had the advantage of seeing and hearing the complainants give evidence over an extensive voir dire hearing and again in the trial. The assessment of probative value, as distinct from relevance, is, at least sometimes, better left to the judge who sees and hears the witnesses. His Honour's view as to the persuasiveness of the prosecution case and the probative value of the evidence of the three complainants in support of it deserves respect of a positive and not token kind. Whilst there may be a substantial retreat at the present time from the once generally held view that a judge or magistrate who sees and hears witnesses always has an advantage over an appeal court, this is surely a case in which the advantage cannot be denied.
62 Further, the directions to the jury had to include a general direction that it was for the jury to decide whether they accepted or rejected any part of the evidence, and a particular direction that they could use evidence of the swimming incidents for the purpose of proving the pornographic materials incidents and vice versa only if they found that evidence acceptable. In my view, the directions were sufficient on both aspects. Further, the jury's verdicts indicate that the jury did not accept, to the certainty necessary to establish guilt, the evidence of the swimming incidents. In coming to that conclusion consistently with the directions, they would have had to have considered the evidence of the pornographic materials incidents. It is impossible to know what weight they put on the evidence of the latter for the purpose of proving the former but that is of no practical significance because they returned a verdict of not guilty on the former. The possibility that they used the evidence of the swimming incidents in some unacceptable way to support a finding of guilt on the pornographic materials incidents is so remote as to be of no significance. I repeat that not every fact of which evidence is given has to be proved beyond reasonable doubt. The theoretical possibility of the evidence of the swimming incidents being used as some illegitimate but undiscovered way to support the verdict of guilty on the pornographic materials incidents does not lead to a conclusion, as I see it, that the accused was denied a fair trial or a fair chance of acquittal or that the verdicts were somehow unsafe or unsatisfactory.
63 I would dismiss the appeal.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.