Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Indictment joining several charges of a sexual nature - Trial Judge refusing separate trial - Whether adequate reasons given - Admissibility of propensity evidence - Whether prejudice would arise

Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA), s 4

Criminal Procedure Act 2004 (WA), s 133

Evidence Act 1906 (WA), s 31A

1 STEYTLER P: The circumstances giving rise to the appeal are fully set out in the judgment of Pullin JA, which I have had the advantage of reading. In a nutshell, they are that the appellant has been charged with sexual offences alleged to have been committed against two different complainants (referred to by Pullin JA as "complainant 1" and "complainant 2"). The appellant is a self-employed masseur. The offences were allegedly committed at his clinic, in the course of massages being administered by him. The offence committed against complainant 1 is said to have been committed on 28 August 2002. Those committed against complainant 2 are said to have been committed on 22 May 2004. The prosecutor, when charging the appellant, joined the charges concerning complainant 1 and complainant 2 in the same indictment. The appellant applied to the District Court, relying on s 585(4) of the Criminal Code (WA), for an order that his trial on the charges concerning complainant 1 and complainant 2 be had separately. The primary Judge dismissed that application. The appellant appeals against the dismissal.

2 It is not in dispute that the prosecutor was able to join all charges against the appellant in the same indictment. That is because s 585(2) of the Code, as that section read at the material time (it has since been abolished and replaced by s 133 of the Criminal Procedure Act 2004 (WA)), provides that, when several distinct indictable offences form or are part of a series of offences of the same or a similar character, charges of such distinct offences may be joined in the same indictment against the same person.

3 However, by s 585(4), if charges are joined under s 585(2), and it appears to the Court that the accused person is likely to be prejudiced by the joinder, the Court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately. This, as I have said, was the provision which was relied upon by the appellant before the primary Judge.

4 Sections 585(5), (6) and (7), as they stood at the material time (as Pullin JA points out, they had been added by s 4 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA)), gave guidance as regards the exercise of the power conferred by s 585(4). So, s 585(5) provided that the Court might decide that any likelihood of prejudice arising from the joinder could be guarded against by a direction to the jury, irrespective of the nature of the offences charged and even if evidence on one of the charges is inadmissible on another. Section 585(6) required the Court, in considering any likelihood of prejudice arising from the joinder of charges of a sexual nature, to have no regard to the possibility that similar fact evidence, the probative value of which outweighed its potentially prejudicial effect, might be the result of collusion or suggestion. Importantly, s 585(7) provided that, despite anything in s 585 and any rule of law to the contrary, if charges of offences of a sexual nature were joined under s 585(2) "it shall be presumed that those charges are triable together" and that the "presumption is not rebutted merely because evidence on one charge is inadmissible on another charge". The common law background to, and evident purpose of, these provisions has been discussed by Pullin JA and I will not repeat what he has said in that regard.

5 The primary Judge found, first, that the appellant bore the onus of rebutting the presumption provided for by s 585(7). This had been common cause between the parties.

6 Next, he said that there had been no indication of the nature of the defence to any of the acts charged (which he found to be of a similar character) and that he could consequently not look to the effect of joinder on possible alternative lines of defence. However, he said that the position of the State was stronger if evidence on the charge or charges involving one complainant was admissible on that or those against the other. He referred, in this respect, to s 31A of the Evidence Act 1906 (WA). Sub-section (1) thereof defines "propensity evidence" as meaning:

"(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;"

Sections 31A(2) and (3) provide that:

(2) Propensity evidence ... is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."

7 The primary Judge found, as regards s 31A, that the evidence concerning the alleged offences against complainant 1 and complainant 2 was not similar fact evidence but that it was, nevertheless, "propensity evidence" as defined in s 31A being, in each case, evidence of the "conduct of the accused" which had "significant probative value for the reasons put forward by the State". He had earlier identified those reasons as having been "that the unlikelihood that the complainants would have made up an allegation of sexual assault in therapy in similar circumstances to each other raises the objective improbability of that evidence bearing an explanation consistent with the accused's innocence and that the evidence discloses a preparedness by the accused to sexually assault a mature female patient in a therapy situation". He expressed the opinion that s 31A(2)(b) required the admission of the evidence.

8 There are four grounds of appeal. These are fully set out in the judgment of Pullin JA. Ground 1 challenges the adequacy of the primary Judge's reasons in three identified respects. Ground 2 challenges what is described as the "finding" that possible defences available to the appellant could not be considered in deciding whether to order separate trials. Ground 3 contends that the primary Judge erred in assessing the probative value of the propensity evidence "by taking into account the possibility that the evidence may be the result of concoction". Ground 4 (which it is necessary to quote in full) is that:

"[h]aving found that the evidence relating to either complainant was not similar fact evidence [the primary Judge] found that the evidence was, 'other evidence of the conduct of the accused person', under Section 31A(1) of the Evidence Act".

10 The first of the three respects in which the adequacy of the primary Judge's reasons is challenged is that he is said to have failed to make any or any adequate findings as regards the question whether the likelihood of the appellant being prejudiced by the joinder could be guarded against by a direction to the jury.

11 While the reasoning of the primary Judge is very briefly expressed, it seems to me, from what he said, that the gravamen of his finding was that, because there was, in the circumstances known to him, insufficient to suggest that the evidence of what was said to have been done to either complainant would be inadmissible in respect of the charge concerning the other, the appellant had not discharged the burden which he bore of establishing prejudice sufficient to justify separate trials.

12 As appears from the judgment of Pullin JA, the primary Judge was not asked to, and was not able to, make any final determination on the question of admissibility, that being a matter for determination at the trial when all of the relevant circumstances are known, including, perhaps, the nature of the defence or defences advanced. All that his Honour could do, and in my opinion did do, was to express a provisional view based upon the facts and circumstances known to him in circumstances in which, as he said, he had been given no indication of the nature of the defence to any of the acts charged.

13 Once the primary Judge had accepted, necessarily on a prima facie basis in the circumstances then known to him, that the evidence as regards what had been done to either complainant was likely to be admissible in respect of the charge concerning the other, it necessarily followed that no prejudice sufficient to rebut the presumption provided for by s 585(7) had been pointed to by the appellant. There was, in these circumstances, no need for the primary Judge to go any further and to make any finding as regards the nature or quality of any directions which might have to be given to the jury in order to guard against prejudice.

14 The second respect in which the adequacy of the reasons is challenged relates to the primary Judge's finding that s 31A(2)(b) required the admission of the evidence to which I have referred. It is true that the primary Judge asserted that s 31A(2)(b) required the admission of the evidence, without going on to say why this was so. However, on a fair reading of the whole of his Honour's judgment, it is apparent from what he said that he considered that the evidence had, as he put it, "significant probative value" for the reasons earlier given and that he must necessarily have considered that its probative value, when compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. While, in my respectful opinion, it would have been preferable if the trial Judge had further advanced his analysis in this respect, I am prepared to find that what was said was sufficient in the circumstances, given that his Honour had identified what he considered to be the probative value of the evidence and, on the face of it, considered this in the context of the possible prejudice which that evidence might generate.

15 I should add, before leaving this ground, that counsel for the appellant contended, in the course of submissions before us, that no reasons were given for the conclusion that the evidence in question was propensity evidence. In my opinion, there is no substance to this contention. The primary Judge said (correctly in my respectful opinion) that the evidence in question was relevant "evidence of the conduct of the accused person" within the meaning of the definition in s 31A(1). The conduct was plainly of a kind suggesting a propensity and, indeed, it is for that very reason that the evidence is said by counsel for the appellant to be prejudicial.

16 The third respect in which the reasons are said to be inadequate is that they did not disclose the basis for the conclusion that the evidence in respect of each complainant was relevant in the case concerning the other, in circumstances in which the sentencing Judge had found that it was not similar fact evidence. I have already said that the primary Judge identified the basis for his conclusion that the evidence had, as he put it, "significant probative value". That, of course, was the basis upon which he considered the evidence to be relevant and, in my opinion, nothing more was required from him in that respect.

18 Like Pullin JA, I have some difficulty in understanding ground 2. I take it to mean that, notwithstanding that there had been no indication of the defence or defences which might be raised on behalf of the appellant, the primary Judge should have speculated what they might be in considering what, if any, prejudice arose from the joinder. I am unable to accept that contention. It was for the appellant to rebut the presumption provided for by s 585(7). Counsel for the appellant acknowledged that there would be no relevant prejudice if the evidence of each complainant should be admissible as regards the charge or charges concerning the other. In that circumstance, and having regard for the fact that nothing cogent was advanced before the primary Judge, or before us, to suggest that that evidence would not be so admissible, the presumption was not rebutted and, indeed, could not be rebutted, in my respectful opinion, merely by resort to speculation on the form which any defence or defences might take. As matters stand, the prosecutor is obliged to assume that, given the bare fact of the pleas of not guilty, the appellant might, in the case of each complainant, deny that he has ever done an act of the kind or kinds charged. The prosecutor is consequently required to prove that the act or acts was or were done by the appellant in each case and, as the primary Judge found, if nothing changes, the propensity evidence is likely to be admissible for that purpose.

19 Ground 3 is also difficult to understand. The primary Judge is said to have erred because he assessed the probative value of the propensity evidence in question by taking into account the possibility that it might have been concocted. As Pullin JA has pointed out, the primary Judge said that there was no suggestion of concoction or collusion in this case and, hence, that s 585(6) appeared to him to be irrelevant for present purposes. While he also referred to the State's contention that it was unlikely that the complainants would have made up "an allegation of sexual assault in therapy in similar circumstances to each other", he did so only for the purpose of rejecting the prospect of concoction. There is nothing in s 585 of the Code or in s 31A of the Evidence Act which precluded him from doing so.

21 Ground 4, too, is difficult to understand. The gravamen of the complaint seems to be that there was no basis for a finding that the evidence in question was propensity evidence as defined in s 31A(1). I have already said that, in my respectful opinion, the primary Judge rightly found that the evidence of the conduct of the accused was propensity evidence for the purposes of the definition. Indeed, it is difficult to see how he could have found otherwise.

24 ROBERTS-SMITH JA: I have read the draft reasons prepared by Steytler P and Pullin JA. I agree with both of their reasons and have nothing to add.

25 PULLIN JA: This is an appeal against the decision of H H Jackson DCJ on 15 April 2005, dismissing the appellant's application under s 611A of the Criminal Code (WA) (now repealed) for the trial of count 1 in the indictment to be separated from the trial of counts 2 - 7.

"(1) On 28 August 2002 at Wembley ANTHONY TERRANCE WOOD sexually penetrated [COMPLAINANT 1], by penetrating her vagina with his finger, without her consent.

(2) AND FURTHER THAT on 22 May 2004 at Wembley ANTHONY TERRANCE WOOD unlawfully and indecently assaulted [COMPLAINANT 2] by sucking her nipple.

(3) AND FURTHER THAT on the same date and at the same place as in Count (2) ANTHONY TERRANCE WOOD sexually penetrated [COMPLAINANT 2], by engaging in cunnilingus, without her consent.

(4) AND FURTHER THAT on the same date and at the same place as in Count (2) ANTHONY TERRANCE WOOD sexually penetrated [COMPLAINANT 2], by penetrating her anus with his finger, without her consent.

(5) AND FURTHER THAT on the same date and at the same place as in Count (2) ANTHONY TERRANCE WOOD sexually penetrated [COMPLAINANT 2], by penetrating her anus with his fingers, without her consent.

(6) AND FURTHER THAT on the same date and at the same place as in Count (2) ANTHONY TERRANCE WOOD sexually penetrated [COMPLAINANT 2], by penetrating her vagina with his finger, without her consent.

(7) AND FURTHER THAT on the same date and at the same place as in Count (2) ANTHONY TERRANCE WOOD sexually penetrated [COMPLAINANT 2], by penetrating her vagina with his fingers, without her consent."

27 On the application, the Judge had before him the prosecution brief.

28 The statement of material facts sufficiently outlines the nature of the evidence revealed by the prosecution brief. It reads:

"COUNT 1: Sexual Penetration without Consent 325 Criminal Code

The accused in this matter is a self-employed masseuse ... The complainant is a 41 year old woman who has been attending the accused's massage clinic as part of her recovery from a serious car accident in ... 2000.

On the 28th of August 2002 the complainant attended at the massage clinic for a pre-arranged appointment. During the course of the massage he accused told the complainant to roll onto her back so that he could rub oil into her stomach scars that she had suffered as a result of the vehicle accident.

After a short period of time the accused placed his hands down the complainant's knickers and touched the top of her vagina area. He then inserted a finger inside her vagina.

The accused then removed his hand from the complainant's knickers before taking a step back and looking at her.

COUNT 2: Indecent Assault 323 Criminal Code

The complainant in this matter is a 47 year old female who has been attending the accused's massage clinic since 1998 after injuring her neck ...

On the 22nd May 2004 the complainant attended at the clinic for a pre-arranged appointment.

During the course of the massage the complainant was asked by the accused to remove her knickers. The complainant was lying on her back and the accused was massaging her shoulders.

After a short time the accused became relaxed and fell into a relaxed state.

The complainant then woke to the accused sucking on both of her nipples.

COUNT 3: Sexual Penetration without Consent 325 Criminal Code

The accused then moved down the complainant's vagina area. He was standing at the complainants [sic] waist with his back facing towards her before he started performing oral sex on her.

COUNT 4: Sexual Penetration without Consent 325 Criminal Code

The accused then then [sic] inserted a finger into the complainant's anus before withdrawing it.

COUNT 5: Sexual Penetration without Consent 326 Criminal Code

The accused then inserted two fingers into the complainant's anus before withdrawing them.

COUNT 6: Sexual Penetration without Consent 325 Criminal Code

The accused then inserted one finger into the complainant's vagina before withdrawing it.

COUNT 7: Sexual Penetration without Consent 325 Criminal Code

The accused then inserted two fingers into the complainant's vagina before sliding them in and out on several occasions.

The accused then asked the complainant if she wanted to have intercourse to which she declined. The accused then left the room.

The complainant got dressed and left the clinic.

On the 18th June 2004 the accused attended at the Wembley Detectives Office at the request of police. He declined to participate in a Video Record of Interview.

The accused was arrested and the present charges were preferred."

29 The relevant provision of the Criminal Code (WA) which permits joinder of counts in an indictment is s 585. The section read at the time his Honour heard the application:

"(1) Except as hereinafter stated, an indictment must charge one offence only, and not two or more offences.

(2) When several distinct indictable offences form or are part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or admitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.

...

(4) But, if charges are joined under subsection (2) and it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may, in proceedings under s 611A, require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.

(5) A court may decide that any likelihood of the accused person being prejudiced by the joinder of charges of offences can be guarded against by a direction to the jury.

(a) irrespective of the nature of the offences charged; and

(b) even if evidence on one of the charges is inadmissible on another.

(6) In considering any likelihood of the accused person being prejudiced by the joinder of charges of offences of a sexual nature, a court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.

(7) Despite anything in this section and any rule of law to the contrary, if charges of offences of a sexual nature are joined under subsection (2), it shall be presumed that those charges are triable together.

That presumption is not rebutted merely because evidence on one charge is inadmissible on another charge."

30 Subsections (5), (6) and (7) were added by s 4 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA) which came into force on 1 January 2005. I will refer to s 585 as it existed after 1 January 2005 as the "amended s 585". Section 13 of the latter Act also amended the Evidence Act 1906 by introducing a new s 31A which reads:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."

31 In the Second Reading Speech to the Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004, the Attorney General said:

"First, the Bill amends the law relating to joinder. The Criminal Code currently provides that an indictment must charge one offence except if the charges are part of a series of offences of the same or a similar character. If several charges are joined, the accused is then entitled to separate consideration of each charge and to a separate verdict from the jury on each charge. If the trial judge foresees the danger of an unfair trial from the joinder, the court retains the discretion to order separate trials. In some cases, a jury direction is sufficient to overcome any prejudice to the accused. However, in the case of multiple sexual offences, the High Court held in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 that when evidence on one joined charge is inadmissible on another, a jury direction is insufficient to overcome the prejudice to the accused. In this instance, the charges must be severed and separate trials ordered. This means that children who may be a complainant in one case and a witness to another may be required to give evidence more than once. Further, juries hear the evidence of each complainant in a vacuum, unaware that the alleged offender has also been charged with offences against other complainants. Though the nature of offending against children often means that victims have a common connection, such as being from the same family or same social group, courts will generally rule that there is a possibility of collusion or concoction of evidence and order that separate trials be held.

The Bill will therefore amend the Criminal Code and the Evidence Act so that if a defendant is accused of committing multiple offences, the prosecution may more readily be able to join the charges to be dealt with under the one indictment. An accused person will have a right to appeal against such joinder of offences. At the same time, the proposed amendments will provide the courts with greater capacity to admit propensity and relationship evidence. The court will still need to be satisfied that the evidence has a significant probative value and that the probative value outweighs the risk of an unfair trial. These changes reflect recommendations 271, 272, 275 and 276 of the Law Reform Commission of Western Australia's report titled, 'Review of the Criminal and Civil Justice System in Western Australia'."

32 About two months later, the Criminal Procedure Bill 2004 was introduced into Parliament. Clause 133 which became s 133 in the Criminal Procedure Act 2004 (WA) contained a new set of provisions, setting out the powers of the Court to order separate trials. It is similar to the amended s 585 but it does not contain a provision equivalent to the amended s 585(7). Nothing was said about cl 133 in the Second Reading Speech by the Attorney General but the Explanatory Memorandum said this:

"133 Separate trials, court may order

Provides that where an accused is charged with more than one offence or has a co-accused in relation to a charge, the court can, in certain circumstances, order the prosecutor to amend the charge, or order that the accused be tried separately from his or her co-accused, or order that the accused's multiple charges be tried separately.

This provision is based on sections 585 and 624 of The Criminal Code and addresses in part The Murray Report recommendation in relation to those sections."

33 The Criminal Procedure Act 2004 (WA) came into effect on 2 May 2005.

34 At the time the Criminal Procedure Bill was being debated, legislation was also introduced into Parliament which was to have the effect of repealing the amended s 585. This Bill was the Criminal Procedure and Appeals (Consequential and Other Provisions) Bill 2004. This Bill was passed and the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 came into operation on the day the Criminal Procedure Act 2004 came into operation, ie 2 May 2005.

35 From this history it may therefore be observed that the amended s 585 had a short life. It existed in that form only from 1 January 2005 until 2 May 2005. It existed when his Honour made the order which is under appeal.

36 I will now refer to the case law which forms the background to the amended s 585. In Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 541, Brennan J said:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offence. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

37 In De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 two points were made. First, if evidence on one count is inadmissible on another count, then the charges ought to be tried separately and a direction to the jury would not overcome the prejudice to the accused in having both charges heard together. Secondly, and this was explained by Gibbs CJ at 3 that "Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard."

38 In Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 there were charges of sexual offences against three boys heard together. Two of the boys were brothers and the third was a friend of one of the brothers and they lived together in a boys' home, where the accused was employed. There was evidence the boys had an antipathy to the accused which may have been unrelated to any sexual act. The High Court affirmed in Hoch the two points made in De Jesus (supra) and Mason CJ, Wilson and Gaudron JJ (at 296) went on to explain that if evidence was similar fact evidence and admissible, then it served two functions. Its first function was as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function was 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, had probative value only if it bore no reasonable explanation other than the happening of the events in question. Finally their Honours held that where there was the "possibility" of joint concoction, there was another rational view of the evidence. That rational view - viz joint concoction - would be inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroyed the probative value of the evidence which was a condition precedent to its admissibility. In consequence, the evidence being inadmissible on each count, it was not admissible on the other counts and as a result, based on the authority of De Jesus, separate trials should have been ordered.

39 Finally, in the case law I refer to Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. Mason CJ, Deane and Dawson JJ in Pfennig reviewed the case law of England, New Zealand, Canada and Australia. They affirmed the long-established rule that evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged, but held that evidence is admissible if it is relevant in some other way, that is, if it tends to show that the accused 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 order to be admissible in that way, propensity evidence must possess a strong degree of probative force and in determining whether this is so 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" (483). McHugh J discussed the distinction between proof and prejudicial effect. He said at 528:

"... the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term 'outweigh' suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurable. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial."

His Honour then discussed this at 528 in the following terms:

"In criminal trials the prejudicial effect of evidence is not concerned with the cogency of its proof but with a risk that the jury will use the evidence or be affected by it in a way that the law does not permit ... In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs it prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced." (Footnote omitted)

40 His Honour then discussed the task confronting a trial Judge. His Honour said at 528:

"If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial".

41 With that background, I now refer to the amended s 585. It is clear that subs (6) of the amended s 585 (and s 31A(3) of the Evidence Act) was designed to overcome the effect of the decision in Hoch. Subsection (5) of the amended s 585 is designed to overcome the two points made in De Jesus and which I have set out above and subs (7) is designed to overcome the second point made in De Jesus. Section 31A(2) of the Evidence Act is a statutory adoption of what was said by McHugh J in Pfennig (and set out above).

42 It is important to bear in mind that the application that was made to his Honour was an application for separate trials under the amended s 585. It was not an application for a pre-trial ruling about the admissibility of evidence under s 31A. Having said that, it is clear that if the Judge was of the opinion that evidence in relation to count 1 could be held to be admissible under s 31A of the Evidence Act on the other counts and vice versa, then this would be a relevant and powerful factor in deciding whether there is any prejudice in allowing the charges to be heard together. (In saying this, I do not ignore the fact that if evidence in relation to the offences concerning one complainant were in fact inadmissible on the other counts, the Court could still allow a joint trial if any prejudice could be guarded against by a direction to the jury.) Any view expressed by the Judge about the admissibility of evidence would be an expression of a preliminary opinion only; but if that were his preliminary opinion, then there would be nothing to rebut the presumption in the amended s 585(7).

43 His Honour had before him the indictment and the prosecution brief, but no information was given to him by the appellant about the nature of the defences which might be advanced at trial.

44 I now turn to the Judge's reasons for declining to order separate trials. His Honour made several findings.

(a) The amended s 585(7) means that an onus is placed on the accused to show that separate trials are required; this significantly alters the position which had developed in respect of sexual offences as a result of cases such as De Jesus.

(b) There was no suggestion of concoction or collusion which meant that the amended s 585(6) and s 31A(3) were irrelevant in this case.

(c) The charges formed a "series of offences of similar character" within the meaning of the amended s 585(2).

(d) His Honour doubted that joinder would have been allowed under the law in force before the new provisions came into force.

(e) Section 31A of the Evidence Act defines propensity evidence to include not only similar fact evidence but "other evidence of the conduct of the accused person".

(f) The evidence would not come within the "technical" meaning of similar fact evidence but, having reached that view, his Honour concluded that in light of s 31A, that was not the "end of the matter": the evidence of the "conduct of the accused" relating to the other complainant, if not properly "similar fact" evidence, was such as to be admissible in the case of each complainant.

(g) The evidence had "significant probative value" and that in consequence the charges were properly joined.

45 His Honour did not expressly hold that there was no prejudice or no prejudice which could not be guarded against by a direction to the jury.

"The learned Judge erred [in] law and/or fact in:

1. failing to give adequate reasons for dismissing the application

1. The learned Judge failed make any or any adequate findings as to whether any likelihood of the Appellant being prejudiced by the joinder of charges of offences could be guarded against by a direction to the jury.
2. The learned Judge failed make any or any adequate findings as to why Section 31A(2)(b) of the Evidence Act required the admission of other evidence of the conduct of the accused.

1. Having found that the evidence relating to either complainant was not similar fact evidence the learned Judge failed make any or any adequate findings as to why under Section 31A(2)(b) of the Evidence Act that evidence would be considered to be relevant evidence.

1. finding that possible defences available to the Appellant could not be considered in deciding whether separate trial should be ordered.
2. assessing the probative value of propensity evidence as defined by section 31A of the Evidence Act 1906 by taking into account the possibility that the evidence may be the result of concoction.

1. the learned Judge found that evidence of the conduct of the accused has significant probative value for the reasons put forward by the State.
2. The reasons put forward by the State were amongst other things, '...the unlikelihood that the complainants would make up an allegation of sexual assault...'

1. having found that evidence relating to either complainant was not similar fact evidence found that evidence was, 'other evidence of the conduct of the accused person', under Section 31A(1) of the Evidence Act."

47 The appellant submits that his Honour found that the appellant would be likely to be prejudiced if separate trials were not ordered. The appellant says that this appears from p 4 of his Honour's reasons where he said:

"[Counsel for the prosecution] argued that joinder would have been allowed under the law in force prior to the new provisions coming into force.

I rather doubt that on the facts in the present case given the differences pointed to by Mr Stubbs between the two cases and the position concerning the avoidance of prejudice to the accused."

48 As mentioned above, I believe that this is a reference to the comment in De Jesus by Gibbs CJ where he expressed the view that sexual cases are likely to arouse prejudice against which a direction to the jury is unlikely to guard. It can therefore be accepted that his Honour was saying that if it were not for the amended s 585 and s 31A of the Evidence Act, that he would have been obliged to find that there was prejudice requiring the ordering of separate trials. However, his Honour was dealing with the situation in the light of the amended s 585 and s 31A of the Evidence Act. The effect of the amended s 585(7) is to overturn the view that Gibbs CJ expressed in De Jesus. The amended s 585(7) states that despite any rule of law to the contrary, charges of offences of a sexual nature are presumed to be triable together. Furthermore, the presumption is not to be rebutted "merely because" evidence on one charge is inadmissible on another charge. The Court was obliged by the amended s 585 to proceed on the assumption stated and was obliged to consider whether there was likely to be any prejudice and if so whether this could be guarded against by a direction to the jury.

49 In my opinion it has not been articulated by the appellant what the prejudice might be. "Prejudice" as McHugh J explained in Pfennig is a reference to prejudice to the fairness of the trial. I can readily understand that if evidence in relation to the charges concerning one complainant would be inadmissible in relation to the counts concerning the other complainant, that prejudice is likely to arise and that the Court would then have to give consideration to whether that prejudice could be guarded against by a direction to the jury. However, if in the opinion of the Judge the evidence on the charge concerning one complainant is likely to be held to be admissible in relation to the charges concerning the other complainant, then it will be a rare case where a conclusion will be reached that the accused person will be prejudiced by the joinder of charges.

50 In this case, if the evidence in relation to complainant 1 is relevant as propensity evidence in relation to the counts concerning the other complainant, then I do not see how any prejudice can arise. His Honour expressed the opinion that the evidence had "significant probative value", noted that s 31A(2)(b) required the admission of the evidence and said that "those conclusions lead back to the conclusion that the charges are properly joined". His Honour then added:

"Had it not been for the various amendments, it may well be that severance would be ordered but I do not agree with Mr Stubbs that section 585(5) is insignificant in that regard."

51 It is clear therefore that his Honour was of the opinion that the evidence in relation to one complainant was likely to be held to be admissible in relation to the charges against the other complainant. That being so, I do not see what prejudice would have to be guarded against other than the usual prejudice which has to be guarded against in any trial involving more than one count and where the jury must be directed to consider the evidence in relation to each count.

52 It would have been desirable for his Honour to have expressly stated that, having formed the opinion that the evidence on count 1 was admissible on the others and vice versa, there would be no prejudice or no prejudice which could not be guarded against by a direction to the jury. I think however, that this is what his Honour meant. Furthermore, in answer to questions from the Bench, counsel for the appellant agreed that if the evidence on one count was admissible on the others, then he could not suggest any other matters which might give rise to prejudice.

53 The next part of ground 1 is that the Judge failed to make any or any adequate findings as to why s 31A(2)(b) of the Evidence Act required the admission of other evidence of the conduct of the accused. If there is "other evidence of the conduct of the accused person" of the relevant kind, then it will be propensity evidence. Propensity evidence will be admissible if the Court considers that it would have the value referred to in s 31A(2)(a) and if the Court makes the judgment referred to in s 31A(2)(b).

54 The appellant complains that no reasons have been given for reaching the conclusion that it was propensity evidence. This complaint cannot be sustained. His Honour concluded that the evidence would have "significant probative value" for the reasons put forward by the State. This is a reference to an earlier paragraph where his Honour said:

"The State argues that the unlikelihood that the complainants would make up an allegation of sexual assault in therapy in similar circumstances to each other raises the objective improbability of that evidence bearing an explanation consistent with the accused innocence and that the evidence discloses a preparedness by the accused to sexually assault a mature female patient in a therapy situation."

55 Contrary to the appellant's submissions, his Honour's reasoning is therefore discernible from those reasons. In my opinion, properly understood, his Honour concluded that the evidence on count 1 was conduct of the appellant likely to be ruled admissible on the counts relating to the other complainant and vice versa if the prosecution was left to prove that the acts occurred. I agree with his Honour's conclusion. In those circumstances there is nothing before the Court at that stage to rebut the presumption in the amended s 585(7). The consequence was that the application for separate trials had to be dismissed.

57 I have difficulty in understanding ground 2. During the course of his reasons his Honour said that:

"Both the law and the facts should be taken into account in deciding whether the offences are similar in character. Series connotes some connection between the offences. The facts to be taken into account are those alleged by the State referring to the depositions and proofs or other evidence which the State proposes to tender. See Brennan J in Sutton v R [1984] HCA 5; (1984) 152 CLR 528. Mr Stone argues that at least in the absence of indication as to the nature of the defence in the particular case the court should not speculate thereon or as to consequences therefore ... In the light of the way the relevant terms have been formulated in the past that seems to be the law."

58 Although I do not understand the last sentence in this passage, there can be no doubt that his Honour was correct to say that the application has to be judged by reference to the facts available to the Court. In this case, all that his Honour had before him was the prosecution brief. There was no indication of the defences which might be advanced by the appellant. Because nothing was known about the case other than the information in the prosecution brief, the prosecution had to proceed on the basis that it would have to prove the acts occurred. I agree with his Honour that the Court should not "speculate" on the defences which might be advanced. The plea of not guilty meant that the appellant denied the acts occurred, in which case the propensity evidence would serve the two functions referred to in Hoch which I have set out above. That leads me to repeat that the presumption in the amended s 585(7) had not been rebutted.

60 I would dismiss ground 3. His Honour did not take into account the possibility of concoction of evidence. There is nothing to suggest that these two complainants knew each other. His Honour said that he regarded the amended s 585(6) to be irrelevant and I agree with him. That subsection only has something to say if there be any argument that the complainants knew each other and that there was a possibility of concoction of evidence.

61 The argument in relation to ground 4 was addressed in relation to ground 1. My reasons in relation to ground 1 mean that ground 4 must also be dismissed.