Zammit v R

Grounds of appeal

1. The grounds on which the applicant seeks leave to appeal, as set out in the annexure to his amended notice of appeal or application for leave to appeal filed on 21 November 2016, are as follows: i. His honour erred in the assessment of the probative value of the tendency evidence relating to CP and in the prejudicial effect of that evidence on the applicant. ii. His honour erred in assessment of the context evidence relating to CP. iii. His honour erred in the assessment of the probative value of the tendency evidence relating to MS and in the prejudicial effect of that evidence on the applicant. iv. His honour erred in assessment of the context evidence relating to MS. v. His honour erred in the assessment of the probative value of the tendency evidence relating to JM and in the prejudicial effect of that evidence on the applicant. vi. His honour erred in assessment of the context evidence relating to JM. vii. His honour erred in the assessment of the probative value of the tendency evidence relating to LZ and in the prejudicial effect of that evidence on the applicant. viii. His honour erred in assessment of the context evidence relating to LZ. ix. His honour erred in allowing the tendency and context evidence relating to CP, MS, JM and LZ on the basis of cross admissibility as the reason not to sever the counts on the indictment. x. The refusal to grant the applicant a separate trial was unreasonable.
2. As is immediately apparent from the above grounds of appeal, the applicant's complaint as to the refusal to sever count 8 from counts 1-7 on the indictment is in substance one as to the cross-admissibility on those respective counts of the tendency/context evidence sought to be led by the Crown from the four daughters. Counsel for the applicant explained in oral submissions that the potential prejudice to the applicant of the counts being heard together arose out of the "child sex" and "adult sex" acts being "lumped together".
3. Although grounds (i)-(viii) assert error on the part of the trial judge in assessing the probative weight and prejudicial effect of the tendency evidence relating to each of CP, MS, LZ and JM, and in the assessment of the context evidence relating to each, there is no challenge to the rulings made as to the admissibility of the tendency/context evidence per se. No doubt that is because rulings on evidence in advance, or in the course, of a trial are recognised as not being an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act (see R v Steffan (1993) 30 NSWLR 633 at 639G; A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244 per RA Hulme J, Beazley P and Bellew J agreeing; Turnbull v R [2016] NSWCCA 109 per RA Hulme J, Garling and Wilson JJ agreeing). As the Crown points out in its submissions, an advance ruling on evidence is not a judgment or order (citing R v Edelsten (1989) 18 NSWLR 213 at 220 per Lee CJ at CL, Newman and Loveday JJ agreeing; Gall v R [2016] NSWCCA 82 at [24] per Simpson JA, Johnson and Davies JJ agreeing) and such a ruling may be revisited at the trial (and, it may be added, as observed by the Court in Steffan at 639, on appeal to this Court after conviction). Grounds (i)-(viii) therefore are probably more properly seen as particulars to ground (x). Similarly, insofar as ground (ix) can be read as asserting an error on the part of the trial judge in making the finding of cross-admissibility of the evidence (as opposed to a contention that the trial judge erred in refusing to sever the counts "by reason of" the cross-admissibility of the evidence), it appears to involve a challenge to the evidentiary rulings which is not within the purview of s 5F of the Criminal Appeal Act.
4. By contrast, there is no dispute that the refusal of an application for separate trials is an interlocutory judgment or order for which leave to appeal may be given (R v Saunders (1994) 72 A Crim R 347; R v Georgiou [1999] NSWCCA 125).
5. The premise of ground (x), as explained in oral submissions, appears to be an acceptance of the ruling as to the admissibility of the tendency/context evidence in respect of the counts relating both to CP and MS. In other words, the unreasonableness of the decision not to sever the respective counts on the indictment appears to be put squarely on the basis of the prejudice it is submitted the applicant will suffer if evidence of both the "child sex" allegations and the "adult sex" allegations is led in the same trial.
6. For the reasons set out below, leave should be granted for the appeal against the refusal to order separate trials in respect of the complaints made by CP and MS respectively, but that appeal should be dismissed.

Conduct the subject of the indictment

1. As noted already, the first seven counts on the indictment relate to CP and are alleged to have occurred during the period when she was between 4 years and 13 years old.
2. The first three counts relate to the one incident which allegedly occurred between 1 October 1979 and 28 February 1980 in the attic of the then family home in Bondi. The timing of the incident is placed by CP as being shortly before she commenced kindergarten. In her statement of 13 November 2013, CP says that she and her sisters were watching television with the applicant on his bed; that after rubbing her stomach the applicant told her to come with him and took her through to the attic; and that the applicant then took off her dress and underwear and told her to lay down on the bed. She says that he licked and sucked her breasts (count 1) and that as he was doing this he rubbed her vagina (count 2). She says that the applicant then lay on top of her and rubbed his body up and down on her body and that his erect penis rubbed on the top of her vagina as he was doing so (count 3). She says that the applicant then lay down next to her and appeared to masturbate.
3. Count 4 is also said to have occurred in the attic at the Bondi home. CP places this incident as occurring just after she started school in 1980. She says the applicant again took her to the attic; and that he told her to take off her clothes and sit on the bed. CP says that the applicant took her hand and placed it on his penis and that he said "you can move your hand you know" and she did so but only for a while.
4. Count 5 concerns another incident said to have occurred at the Bondi home. CP says that while she was playing on a poker machine that had been purchased by the applicant, he stood behind her and thrust his erect penis up against her body.
5. Count 6 again alleges that the applicant sucked and licked CP's breasts. The incident is alleged to have occurred between 1 May 1987 and 31 May 1988, at which time CP was 12 years old and the family was living in Bexley. CP alleges that the applicant took her to a granny flat downstairs; that he got her to take her clothes off; was sucking and licking her breasts (which were now formed); and that he lay on top of her pushing himself on top of her in a back and forth motion against her body and masturbated.
6. Count 7 relates to an occasion when CP was 13. She says the applicant took her to his bedroom; that she was lying on her right side in front of him and that he was pushing his erect penis into her back and swaying back and forth against her lower back. She says she was dressed at the time and that he did not make her touch him.
7. The sole count on the indictment relating to MS (count 8) relates to an incident that is alleged to have occurred at Huskisson on the South Coast when MS was about 16 years old. In her statement of 12 December 2013, MS recounts that on one occasion when she went to Huskisson to visit her then boyfriend, the applicant drove her there and that she and the applicant shared a double bed at the hotel where they stayed the night. MS says that during the course of the night she heard noises and noticed movements similar to that of a male masturbating himself. She says the applicant attempted to place his arm around her a number of times before she curled into a ball to stop him doing so. She says that after a while the applicant stopped moving around and then she felt "something that was quite firm that was passed over my vagina and up my backside". She is certain that what the applicant had passed up her backside was his erect penis.

Tendency evidence

1. The tendency evidence in respect of which his Honour made the ruling on 7 October (and about which the applicant complains) may be summarised as: 1. evidence from CP as to a general course of conduct on the part of the applicant (some of which she described as a routine) when her father took her to the attic and forced her to undress, then thrust himself on top of her and would "relieve himself" - see [37]-[38] of her 13 November 2013 statement), as well as the evidence the subject of counts 1-7 on the indictment; 2. evidence from CP (in her 22 August 2014 statement at [12]) about a hide and seek game in which she says the applicant exposed his penis to her and others of her siblings; 3. evidence from MS to the effect that the applicant "used to always get us to sleep in his bed with him" and that on one of the occasions when she was in bed with him he was naked ([8] of her statement of 12 December 2013); 4. evidence from MS as to an incident when she was about 3 and went to join two of her siblings in the bath with the applicant when she noticed what she now realises was his erect penis ([19]-[20] of her 12 December 2013 statement); 5. MS' evidence as to the Huskisson incident the subject of count 8 on the indictment; 6. MS' evidence of complaints made by MS to her siblings and to her mother; her statement that she knew her father had touched JM on her "boobs" and lower back and would always massage her; as well as hearsay evidence that JM said the applicant was trying to touch her when he massaged her and that LZ had said her father watched her in the shower ([7]-[15] of MS' 18 July 2015 statement); 7. evidence from JM that her father always used to have day naps and would bring one of the children with him and would sleep naked; and that on one occasion when he did so with her he told her to lock the door behind him ([6] of JM's 30 October 2014 statement); 8. evidence from JM as to the complaints made by CP about her father's conduct ([10]-[11]); 9. evidence by JM about an incident when she was about 13-15 years old and heard noises coming from the exhaust fan above the shower and that she knew her father gained access to the roof and watched her and everyone else through the exhaust fan ([12]); 10. evidence from JM as to an incident when she was 20 years old and living at Bexley to the effect that the applicant massaged her upper back and along the side of her breasts (she said she discovered he had used a sex lubricant to massage her) ([13]-[14]); 11. evidence from LZ as to the location of the granny flat at Bexley; and an incident when the applicant insisted she have a shower and she could hear loud breathing and panting coming from the roof above the shower (and as to her belief that her father had accessed the opening above the shower) ([5]-[9]).

Evidentiary rulings by trial judge

1. In the trial judge's reasons, his Honour noted that the common denominator was the allegation that all the instances occurred in circumstances where the applicant had authority, in the sense of parental dominance over the complainants, including JM when she was 20, and that this was the circumstantial background to each of the offences (reasons p 3).
2. His Honour first turned to the tendency evidence sought to be adduced from CP. He considered that some of that evidence was capable of being tendency evidence, there referring to the "manhole incident" (i.e., the practice of the applicant to visit the manhole area above the exhaust fan above the shower and make observations from there) and the incidents referred to at [51]-[52] of CP's first statement (as to the applicant lying behind CP in the granny flat and pushing his erect penis against her, as well as incidents in the caravan when he was licking and sucking her breasts) (reasons p 4).
3. His Honour did not consider the complaint about the applicant's hand being on CP's stomach for 20 minutes to have sufficient probative value for any use even as context evidence. However, he did consider that the evidence in relation to "routines" in the attic (CP's first statement at [37]) and in the granny flat ([42]-[43]), the applicant getting into bed with the complainants when the mother was away ([48]) and the hide and seek incident when the penis was exposed (CP's second statement at [17]) were relevant and admissible, and probative as context evidence. In particular, his Honour considered that such evidence made explicable the reactions and lack of reactions of the complainant (CP) and served to remove the artificiality that would otherwise appear to the jury (if the allegations the subject of the charges were not put in context).
4. His Honour then referred to ss 135 and 137 of the Evidence Act 1995 (NSW). He concluded that the probative value of the evidence was not substantially outweighed by the risk of the jury misusing the evidence.
5. His Honour accepted that the timing of the acts was a relevant consideration but did not accept that the fact that the acts were uncharged was particularly significant.
6. As to JM's evidence, his Honour considered the exhaust fan evidence to be part of the circumstantial evidence (though noting that the hearsay aspect of that evidence would have to be excluded). His Honour accepted that the age of JM at the time of the massage incident (20 years) was a significant and relevant matter but said that it was a question of looking at the totality of the evidence and considering admissibility on the basis of the combination of the evidence.
7. His Honour considered that a highly relevant circumstance in the present case was that a willingness of the applicant to act upon a sexual interest in his daughters was said to come about in circumstances where the particular child was under the authority or parental dominance of the applicant. His Honour said: In my view if it were established that the accused had a sexual interest in his daughters, whilst a daughter was under his authority, that is logically irrelevant [sic] to the plausibility of a particular incident as asserted by the complainant, actually taking place. Seeking to gratify himself, to gratify a sexual appetite upon a daughter would ordinarily present as quite preposterous and incongruous. The relevance of an ongoing - even if interrupted - sexual interest in daughters under authority, regardless of their precise manifestation, presents as highly relevant.
8. His Honour accepted that there was a risk that any direction given to the jury would not necessarily extinguish the risk of prejudice in the sense of misuse of the evidence by the jury but considered that, in circumstances where a jury would be reluctant to accept that any father would sexually interfere with or have a sexual interest in a daughter, the evidence had powerful probative value in its capacity to enhance the veracity of the particular complainant as to the counts on the indictment regardless of there being a lack of temporal connection and regardless of the age of that particular daughter (reasons p 8).
9. His Honour concluded that the context evidence referable to CP was admissible and that the jury could have regard to the tendency evidence in relation to the conduct of the applicant towards MS and JM on the question whether the particular incidents alleged by CP actually took place.
10. In considering the position in relation to MS, his Honour concluded that the jury could have regard to the tendency evidence in relation to the conduct of CP and JM but only on the question whether the incidents took place, not on the question of consent.
11. His Honour did not make any express ruling as to the use that might be made of MS' evidence as to the erect penis in the bath incident.
12. It was after the rulings made on the tendency evidence that his Honour turned to the question of the separate trial application. His Honour disposed of that very shortly by reference to the fact that "cross admissibility is obviously important".

Submissions on behalf of the applicant

1. The applicant refers to the decision of Hunt J (as his Honour then was) in R v Middis (Supreme Court (NSW), 27 March 1991, unrep). There his Honour said that it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would, if it arises, result in positive injustice to the applicant in a joint trial. His Honour identified three circumstances in which he considered that a separate trial would usually be ordered.
2. First, where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with the applicant. Second, where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against the applicant. Third, where there is a real risk that a weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material.
3. The applicant places emphasis on the recognition that sexual cases are particularly likely to arouse prejudice against which a direction to the jury is unlikely to guard (see De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375 at 378). In that case, Gibbs CJ observed that as a general rule sexual offences form a special class of offences which should be tried separately except where the evidence of a count is admissible upon other counts. The applicant argues that the exception to which his Honour there referred does not mean that the "mere fact" that there is cross-admissibility leads to the conclusion that the charges must run together.
4. As already noted, the nub of the applicant's submission in relation to the separate trial issue is that there is substantial prejudice to the applicant if the "child indecent assault counts" (i.e., the counts relating to CP) are tried together with the "adult type indecent assault" (i.e., the sole count involving MS). In that regard, in oral submissions counsel for the applicant accepted that, although referred to in submissions as an "adult sex type" assault, the alleged incident the subject of count 8 did not take place when MS was an adult. However, the distinction there drawn is that it allegedly occurred when MS was 16 (implicitly because she was then over the age of consent).
5. In the written submissions, the applicant groups the uncharged acts into the following four categories.

Exhibitionism

1. First, the allegation by CP as to the exposure by the applicant of his penis during the hide and seek game (said to have occurred when CP was about 7 and about which no other sibling makes reference) and the allegation by MS as to the erect penis in the bath (said to have occurred when MS was about 7 and about which again no other sibling makes reference). (The applicant points out that the other two siblings MS remembers as being in the bath at that time would have been 10 and 8 at the time, suggesting that the bath would have been crowded. Whether or not the evidence is reliable or what weight should be given to it is not, of course, the issue.)
2. The applicant characterises both these allegations as amounting to a description of exhibitionism allegedly done in the presence of at least some of the children, whereas the counts on the indictment all relate to alleged acts where the applicant is alone with the particular child. The applicant concedes that the evidence is probative but maintains that it is not "significantly probative" and says that it is highly prejudicial. It is not, however, suggested that the prejudice is any greater than any allegation of sexual misconduct would be.
3. The applicant relies on what was said by Hoeben CJ at CL in Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 at [44], namely that: The flaw in the Crown case in support of the admission of the tendency evidence was that it failed to have regard to the fact that the evidence only had probative value if it increased the probability that the appellant committed the offence of indecently assaulting the complainant. In assessing the extent of the probative value of the evidence, the focus had to be on the fact in issue to which the evidence was said to logically relate. In that context, it was an error to generalise the conduct said to constitute the alleged offence in a way which removed the elements that made up the offence. In this case, the focus of the prosecution was on generalised sexual activity, which involved neither an assault nor a child. The focus of the tendency evidence should have been on the logical link to the elements of the offence charged, in this case involving both an assault and a child victim. The question was whether the evidence had "significant probative value" to prove the offence charged, ie indecently assaulting a young girl.
4. The applicant notes that in Sokolowskyj the unfair prejudice was said to be that: the jury would use the evidence in the way that they were directed not to use it (to show that the appellant was a sexual deviant who, as a result, was the sort of person who was likely to have committed the offence alleged against him); that the jury would be so emotionally affected by the evidence that they would disregard the appellant's account (in his police interview) and disregard the directions to assess the evidence in an emotional manner; and that the jury might be disinclined to give the appellant the benefit of any reasonable doubt (see [48]).
5. The applicant further notes that in Sokolowskyj criticism was made that the trial judge did not carry out the weighing exercise required by s 101 of the Evidence Act, because, although considering the question of probative value, the trial judge did not consider the essential question required under s 97(1)(b) of whether the probative value of the tendency was significant; and there was no attempt to assess the prejudicial effect of the tendency evidence and to balance that against the probative value (rather, there was an assumption that the judicial direction to the jury designed to minimise the risk of unfair prejudice would be completely effective, without any assessment of the risk of unfair prejudice).
6. Pausing there, the evidence erroneously admitted by the trial judge in Sokolowskyj was evidence concerning the accused's three prior convictions for exposing his penis to adult women in public places at his trial on a charge of indecently assaulting an 8 year old child in a shopping centre parents' room. The criticism there made of the trial judge must be considered in the context of the lack of any connection between the conduct with which the applicant was there charged and the conduct the subject of the evidence of which complaint was made. As Beech-Jones J observed in BC v R [2015] NSWCCA 327 at [80], a risk that the jury might reason that because the applicant in Sokolowskyj was the "sort" of person who would expose himself to adult women in a public place he was more likely to have assaulted a child was truly a form of prejudice. The same cannot be said in this case, where the conduct the subject of both the charges and of the tendency evidence relates to indecent assaults of a sexual nature on the applicant's biological children, in circumstances where the particular child was under the parental dominance or authority of the applicant at the time.
7. The applicant also refers to Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [80] where McClellan CJ at CL (with whom Howie and Latham JJ agreed) said that prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, would inevitably be prejudicial. Reference is also made to DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, which involved evidence of uncharged acts of child abuse, where McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said: The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted.
8. It is submitted that, in the present case, his Honour erred because, while he considered the probative value of the evidence (of exhibitionism), he did not consider whether it was significant and then failed to consider the prejudicial effect on the applicant.

Applicant naked in bed with a child

1. The second category of evidence to which the applicant refers in this context is as to his practice of having one of the children in bed with him at home (while he was naked) (see JM statement of January 2014, p 6; MS statement of 12 December 2013, pp 8 and 29-31 (count 8 on indictment); and CP statement of 13 November 2013, p 48).
2. The applicant notes that the allegations by JM and MS are of when they were young and that they do not suggest any action on the part of the applicant whereas CP's statement (admitted as context evidence) refers to an uncharged act where the applicant is in bed with her when she is 13 years old and thrusts his erect penis against her. The applicant notes that counts 5 and 7 also involve the applicant thrusting his erect penis into CP's back.
3. The applicant argues that the probative value of the "applicant in bed" uncharged acts is not significant because the jury would be asked to reason that the applicant did not do anything to JM/MS in that situation when they were young but would then be asked to put that evidence in support of the later allegations against CP and MS (counts 5, 7 and 8).
4. As to MS, it is submitted that the evidence of both MS and JM being in bed with the applicant when they were young (and when nothing happened) could not be used to support the allegation that MS makes as to the incident when she was older (16-17) at Huskisson.
5. The applicant complains that in assessing this evidence his Honour erred as he considered the probative value but did not go on to assess whether it was significant and how it could be used to bolster the counts brought by CP and MS.

Exhaust fan incidents at Bexley

1. Third, the applicant refers to the statements by LZ, JM and CP as to the applicant observing them through the exhaust fan in the bathroom while they showered or when they were going to have a shower: LZ (19 March 2014, pp 6-7) referring to an incident when she was 16, about which MS makes no complaint, admitted as tendency evidence; JM (30 January 2014, p 12), based on someone else telling her that it was the applicant who made the noises she heard when she was 13-15; CP (13 November 2013, p 11) about an incident when she was about 13 years old and in which she says the applicant would be looking at them through the exhaust fan and that, the day after she realised she should put on the fan to prevent this, the fan was broken.
2. The applicant notes that the statements all contain an element of hearsay and are suggestive of contamination of memory.
3. The applicant submits that since the actual counts on the indictment relate to the applicant being with either CP or MS on her own and the alleged viewing by the applicant through the exhaust fan amounts to a form of voyeurism, the latter would have limited probative value to the offences charged.
4. It is submitted that the trial judge erred in not considering whether the evidence had significant probative value and how that evidence would be used when the jury came to consider the counts on the indictment, as well as the prejudicial effect of the evidence on the applicant.

"Adult sex" type offences

1. Fourth, the applicant refers to the evidence sought to be adduced by the Crown as to the JM massage incident (JM, 30 January 2014, pp 3 and 14) and the evidence of MS as to count 8 on the indictment; compared with the evidence of CP as to the charged and uncharged acts. On JM's account the massage incident occurred when she was 20 years old. The evidence was ruled admissible as part of the circumstantial case and as tendency. The MS allegation was when she was 16 or 17.
2. The applicant characterises the JM and MS incidents as relating to "adult type sex", whereas he characterises the allegations by CP as to incidents when she was 4-13 as "child type indecent assaults". The applicant submits that his Honour erred in failing to consider the probative value of the evidence of "child type indecent assaults" of CP (aged 4-13) with the "adult type indecent assaults" against MS and the uncharged acts alleged by JM and CP. It is noted that all of the counts 1-7 (excluding count 5) were admitted as context evidence.
3. The applicant accepts that the uncharged acts as alleged by CP (aged 13) and JM (aged 20) are probative in considering the allegation by MS in count 8 but says that they are not significantly probative because one relates to child type indecent assaults (CP) and the other relates to adult type indecent assaults (JM). It is submitted that on that basis the trial judge erred in not considering the prejudicial effect against the applicant in having CP and MS in the same trial.

Crown submissions

1. The Crown points out that all of the trial judge's evidentiary rulings could, in theory, be reversed at trial. The Crown argues that where a ruling on the admissibility of evidence is a central issue in respect of an order refusing separate trials this is a strong consideration against the grant of leave (citing DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 per Spigelman CJ at [16], and referring to Allsop P, as his Honour then was, at [106] and Simpson J, as her Honour then was, at [208]).
2. Insofar as counsel for the applicant submitted to the trial judge that the difference in ages and places where the offences were alleged to have occurred, and the lack of similarity between the allegations of CP and MS, meant that there should be separate trials, the Crown argues that this fails to take into account the description of the way tendency evidence operates in Hughes v R [2015] NSWCCA 330. There, it was said (at [160]-[161]): It needs to be understood at the outset that evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject of the charge or charges: see Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 at [124] per Simpson J. This was explained in Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359]: "The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning." In FB v R; R v FB [2011] NSWCCA 217 Whealy JA (Buddin and Harrison JJ agreeing) observed, at [23], that: "The section proceeds on the basis of inferential reasoning that people behave consistently in similar situations. The evidence is used to provide a foundation for an inference to that effect."
3. The Crown submits that, although similarity of conduct is a relevant consideration as to whether the tendency evidence has significant probative value, there is no requirement for similarity or for "underlying unity", "a modus operandi" or a "pattern of conduct" (referring to Hughes at [166]). In Hughes the Court said (at [182]): Thus, in summary, the law in this State is that whether the Court thinks that evidence has significant probative value for the purposes of s 97 involves an assessment by the Court as to whether a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate explanation consistent with innocence.
4. In Hughes, the Court made clear that, in making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence but that this was a different thing from requiring that the conduct bear similarities to the conduct with which the person is charged (as emphasised by Basten JA in Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [44]). The Court noted that tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which the accused is charged; rather there need only to be a "tendency ... to act in a particular way" (s 97(1)) relevant to the conduct subject of the charge (relevance being determined by reference to s 55 of the Evidence Act, namely whether the evidence, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding).
5. It is submitted by the Crown that the assessment by the trial judge of significant probative value was open to his Honour and does not display any error in principle. It is said that his Honour did not overlook any matter that was raised by the applicant in submissions nor is his Honour's assessment plainly unreasonable. As to the trial judge's consideration of the prejudicial effect of the tendency evidence, the Crown submits that his Honour weighed the probative value and the prejudicial effect of the tendency evidence; and that no error was shown in his assessment that the probative value of the evidence was powerful and substantially outweighed its prejudicial effect. The Crown notes that the applicant did not point to any particular prejudice in this regard.
6. The Crown submits that the reluctance of a jury to accept that any father would sexually interfere with or have a sexual interest in his daughter was a highly relevant consideration and it strengthened his Honour's conclusion.
7. As to the uncharged acts, the Crown notes that the trial judge accepted that evidence from a complainant of an uncharged act would not have significant probative value with respect to the charged acts relating to the same complainant (there referring to IMM v The Queen [2016] HCA 14; (2016) 90 ALJR 529 at [62]-[63] per French CJ, Kiefel, Bell and Keane JJ). It is submitted that that would not prohibit evidence from CP being admissible as tendency evidence to prove the applicant committed the offence charged under count 8 against MS. It is submitted that, in admitting the uncharged acts at [50]-[51] of CP's first statement, his Honour did not err.
8. Finally, the Crown submits that the rulings on context evidence, and on the admissibility of the evidence of LZ and JM as tendency, do not affect the cross-admissibility of the evidence of CP and MS. The Crown accepts that it might be said that a stronger case with respect to CP's allegations would prejudice a weaker case involving only MS' allegations but submits that here that is not the case since the Crown case on count 8 has the advantage of a recent complaint to another witness (her boyfriend at the time, MW), which is absent with respect to counts 1-7.
9. Insofar as the applicant has submitted that there is no link between the complainants' allegations except for the fact that they are sisters, the Crown argues that this ignores the cross-admissibility of their evidence. The Crown submits that there will always be a sufficient nexus between offences if the evidence of one offence is admissible on the trial of another offence (referring to Ludlow v Metropolitan Police Commissioner [1971] AC 29 per Lord Pearson at 39; and De Jesus per Gibbs CJ at 3 and Dawson J at 16).

Determination

1. Insofar as the complaint is as to the exercise of the discretion whether to sever the counts against the respective respondents, and the evaluative exercise to be carried out in that context, the applicant must show error warranting appellate intervention in the House v The King sense (House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504 to 505).
2. Had the question been as to the admissibility of the tendency evidence per se (and for the reasons outlined above it was not open for those rulings to be challenged at this stage), again it would be necessary for the applicant to establish error in the House v The King sense (both when considering whether the tendency evidence had significant probative value for the purposes of s 97(2) of the Evidence Act and when applying the test in s 101 of the Evidence Act (see DAO v R at [177] per Spigelman CJ at [70]; per Allsop P (Kirby J agreeing) at [74]-[79], [100]; [104]; and per Simpson J (Schmidt J agreeing) at [156], [166]-[177]).
3. It is not appropriate to comment on grounds (i)-(viii), other than to note that insofar as there is complaint that the trial judge did not expressly address the "erect penis in the bath" incident when reviewing the evidence sought to be adduced as tendency it would be open to the applicant to seek a ruling on that at the trial itself (as it would be for the applicant to ask the trial judge to revisit other rulings as to evidence at the trial itself).
4. That said, it is not fair to the trial judge to suggest that his Honour did not consider how particular parts of the tendency evidence could be used to bolster the counts brought in relation to CP and MS. It is clear from his Honour's reasons that he considered that a tendency of the applicant not only to have a sexual interest in his daughters but also to act on it must have significant probative value in a trial in which he is charged with sexual offences against two of his daughters; and that the tendency evidence, if accepted, supported the respective counts.
5. As to ground (ix), once the tendency evidence was found to be cross-admissible, this provided a strong reason for the trial judge not to sever the counts (as recognised in DAO - see [57] above). The evidence sought to be adduced from CP and MS displays similarities that support the trial judge's conclusion that the evidence had significant probative value with respect to each other's counts: each, for example, recounts the applicant rubbing his penis against them, and each recounts the applicant masturbating in her presence. Not to sever the counts would, on the present evidentiary rulings, mean the prospect of the same or much the same evidence being adduced in two separate trials.
6. This is not a case which falls into any of the three sets of circumstances considered in Middis. The first two instances to which Hunt J there referred do not arise in view of the conclusion the trial judge reached as to cross-admissibility; as to the third, the tendency evidence equally supports the sole count in relation to MS (which is also supported by the evidence of contemporaneous complaint to the boyfriend MW).
7. Ground (ix) is not made good.
8. As to the final ground (x), which was the gravamen of the challenge to his Honour's decision not to sever the counts, it must be noted that, despite the case being one involving sexual offences in relation to different complainants and at different times and places with differing degrees of similarity, there is no reason to assume that a jury properly directed will not be able to assess the evidence properly (and not misuse it).
9. The complaint as to "child sex type" and "adult sex type" allegations being "lumped together" fails to take into account that some of the conduct that is alleged to have occurred across the period from when CP was at least around 7-13 years to when MS was 16 relates to the father allegedly seeking gratification from rubbing his penis against his daughters and masturbating in their presence. When that is taken into account the distinction between "child sex" and "adult sex" type allegations becomes rather artificial. The case is in my opinion significantly different to the situation which was considered in Sokolowskyj.

Conclusion

1. The matter has been fully argued. Leave to appeal should be granted. The appeal should be dismissed. Grounds (i)-(viii) are not properly the subject of challenge at this stage and, even if treated as particulars of grounds (ix)-(x), there was no evident House v The King error in the trial judge's consideration of the probative value and prejudicial effect of the evidence the subject of the tendency notices.
2. The trial judge did not err in the exercise of the discretion whether to sever count 8 from counts 1-7 of the indictment. The cross-admissibility of the evidence of CP and MS in relation to the counts involving each other, and of the other tendency evidence, and the lack of any prejudice other than that which would ordinarily attend the admission of evidence of this kind, means that it cannot be said that the trial judge's decision was unreasonable.
3. BELLEW J: I agree with Ward JA.
4. HIDDEN AJ: I agree with Ward JA.

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