AJ v The State of Western Australia
[2007] WASCA 228
•31 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AJ -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 228
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 7 AUGUST 2007
DELIVERED : 31 OCTOBER 2007
FILE NO/S: CACR 9 of 2007
BETWEEN: AJ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MCCANN DCJ
Citation :THE STATE OF WESTERN AUSTRALIA -v- "A J" [2007] WADC 5
File No :IND 451 of 2006
Catchwords:
Criminal law - Joinder of offences - Accused charged with multiple sexual offences against two complainants - Application to sever counts on the indictment - Criminal Procedure Act 2004 (WA), s 133 - Whether evidence of each complainant had significant probative value in relation to other complainant - Risk of an unfair trial - Whether direction to jury could guard against prejudice - Evidence Act 1906 (WA), s 31A
Legislation:
Criminal Procedure Act 2004 (WA), s 23(2)(b), s 133, sch 1(cl 2(3), cl 7(3))
Evidence Act 1906 (WA), s 31A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr J A Davies & Mr F C Voon
Respondent: Ms J D Whitbread
Solicitors:
Appellant: S C Nigam & Co
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
The State of Western Australia v GBT [2006] WASCA 75
The State of Western Australia v Osborne [2007] WASCA 183
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wood v The State of Western Australia [2005] WASCA 179
WHEELER JA: I agree with Buss JA.
PULLIN JA: The appellant faced six charges in an indictment. The details are set out in the reasons of Buss JA. As Buss JA recites, the trial judge, on 1 December 2006, heard the appellant's application that the indictment 'be severed' to provide a separate trial for each complainant. The only issue before this court was whether or not an order for a separate trial should have been made pursuant to s 133 of the Criminal Procedure Act 2004 (WA) (CPA).
When an indictment is presented which contains more than one charge, or which charges more than two accused, there are several statutory provisions which may have to be considered. They are as follows:
(a)Clause 2(2) of the first schedule of the CPA states the general rule that an indictment must relate to one accused only.
(b)Clause 2(3) of the first schedule of the CPA states the general rule that an indictment must contain one charge only.
(c)However, these two general rules are subject to the exceptions contained within cl 7 of the first schedule which permits:
(i)two persons to be charged in one indictment in certain circumstances;
(ii)two or more charges to be included in certain circumstances.
There was no issue before this court - although there may have been an issue in the District Court - about whether all the charges should have been contained in the one indictment.
(d)If two or more persons are permissibly charged, or more than one charge is permissibly contained within an indictment, then the court is given the power under s 133 of the CPA to order that the accused be tried separately on one or more of the charges or that one or more of the accused be tried separately from others charged in the indictment.
The issue which the court has to consider when deciding whether to exercise the power to order separate trials, is whether an accused 'is likely to be prejudiced'.
In deciding whether to make an order for a separate trial, Parliament has expressly stated in s 133(5) of the CPA that it is open to the court to decide that any likelihood of the accused being
prejudiced 'can be guarded against by a direction to the jury', to so decide, irrespective of the nature of the offences or the offences charged and to so decide even if 'the evidence on one of the charges is inadmissible on another'.
(e)There is a further section which may be considered, although there is no express legislative requirement that it be considered when deciding whether to exercise the power in s 133 in the CPA. It is s 31A of the Evidence Act 1906 (WA) and it may be observed that it has been taken into account in applications for separate trials in other cases. See for example VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [18]; Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [78], Wood v The State of Western Australia [2005] WASCA 179[42]. The reason why s 31A of the Evidence Act may be considered is because, in deciding under s 133 of the CPA whether the accused is 'likely to be prejudiced', it is necessary to look at the case which is likely to be presented against the accused. Usually this is done by examining the prosecution brief. In expressing an opinion about whether evidence in relation to one charge might be admissible in relation to another charge by reason of s 31A of the Evidence Act, I expressed the opinion in Wood that this would be 'an expression of a preliminary opinion only'. See [42]. Of course, if there were an express application for a ruling about the admissibility of the evidence, then the ruling could be made at the same time.
Although s 31A of the Evidence Act may be considered when the court decides whether to exercise the power under s 133 of the CPA, a preliminary view about admissibility under s 31A will not be determinative.
If the preliminary view of the judge is that evidence in relation to the facts alleged in one count will be admissible in relation to proof of the facts alleged in another count because it is either relationship evidence or propensity evidence having 'significant probative value', then the question still remains under s 133 about whether or not the accused is likely to be prejudiced for some other reason. There will not be many circumstances which would warrant separate trials if evidence in proof of one charge is admissible on the other. However, there will be some. For example, an extraordinary number of charges in the one indictment may result in an order under s 133 for separate trials. On the other hand, if the preliminary view of the trial judge is that evidence to prove the facts on one count would not be admissible to prove the facts on another charge in the indictment, then that will not be determinative either. This is because of the provision that I have already mentioned, namely s 133(5)(a). This requires the trial judge to decide whether or not the likelihood of the accused being prejudiced by reason of the jury hearing evidence admissible on one count but inadmissible on another, can be guarded against by a direction to the jury.
In this case the trial judge decided that the evidence on each count is 'mutually admissible on all the others pursuant to s 31A(2) of the Evidence Act'. In my opinion that was an error. His Honour approached the matter in a general way and concluded that the tendency revealed by the evidence was a tendency to deal with the two children 'in a sexual way rather than an innocent … way' and that that 'each count was not an isolated incident'.
The word 'probative' in s 31A, in its ordinary meaning, means 'affording proof or evidence'. Evidence which affords proof or evidence of the commission of an offence must be admissible evidence. If evidence is to be admissible, then it must be relevant. The word 'relevant' means 'that any two facts to which it is applied are so related to each other that according to the common course of events one taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non‑existence of the other': Stephens, Digest of the Law of Evidence, 12th ed, art 1, pt 1; Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [55] and Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 at [31].
Turning to this case, count 5 may be taken as an example. It alleges as a fact that the appellant performed cunnilingus upon the female complainant. The question then to be asked is whether the evidence in relation to the fact alleged in count 2 is relevant to the fact alleged in count 5. Does the fact in count 2 prove or render probable that fact that the appellant performed cunnilingus on the female complainant. Count 2 alleges that on one occasion about a year before, or perhaps two or three years before the offence alleged in count 5, the appellant touched the male complainant's penis. Evidence of that fact does not prove or tend to prove what was done to the female complainant. Nor does what was done to the female complainant prove, or render probable, what was done to the male complainant one, two or three years earlier.
It is true that evidence concerning charges involving offences against two girls or even against children of different sexes may be admissible in relation to all the charges in one indictment. For example, if two children are present in a room and remain there while the offender commits offences against one and then against the other, then the evidence of one complainant will be probative of the offences against the other and vice versa. However, if the offences against two complainants are not in any way related, then the evidence of one complainant cannot be probative of an offence against the other. In my opinion s 31A of the Evidence Act cannot be employed by a process of over‑generalisation. Thus, speaking generally, it can legitimately be said that sexual offences against the female complainant prove that the appellant had an unnatural or unhealthy sexual interest in his de facto child. However, it is not legitimate to reason that because the male complainant is his de facto child, that the interest that the appellant showed in the female complainant is probative of the offence against the male complainant - or vice versa. The evidence in relation to all the offences against the female complainant may be 'propensity' or 'relationship' evidence within the meaning of s 31A, but it is not evidence of 'significant' or any probative value in relation to the male complainant which means that it is not admissible pursuant to s 31A(2). Similarly, the opportunistic and incidental nature of the offence against the male complainant, lead me to the conclusion that the evidence in relation to count 2, concerning what was done to the male complainant, was not probative (and certainly not 'significantly' probative) of the offences against the female complainant. I add by way of clarification, that the evidence of the male complainant about the appellant drilling a hole in the toilet wall could be given in relation to the charges concerning the female complainant because it shows that the appellant had a sexual interest in the female complainant. However, the evidence about what followed when the appellant touched the male complainant's penis would not be relevant to, or probative of, the offences against the female complainant.
It is for those reasons that I conclude that the trial judge erred when he decided in his reasons that the evidence in relation to all charges was admissible in relation to all other charges. That error led the trial judge to immediately conclude that there was unlikely to be any prejudice.
I do note that earlier in his reasons his Honour concluded that other potential prejudice could be guarded against by a direction. His Honour mentioned, for example, that the jurors would be instructed that, simply because the accused committed other offences or discreditable acts, they must not reason that he was the kind of person likely to have committed each of the alleged offences. However, the error which I have referred to above, meant that due consideration was not given to the circumstances where the evidence in relation to count 2 was not probative at all of any of the other offences and the acts constituting other offences were not probative at all of the act constituting count 2. Having decided that there was error in relation to the judge's conclusion about likely admissibility of evidence under s 31A, it is then necessary for me to consider whether a direction would overcome the prejudicial effect of the inadmissible evidence.
It is true that it is very common for a trial judge to give a direction to ensure that the jury does not take into account evidence which it may have heard which is inadmissible on one charge or against one accused. Take, for example, the common case of two persons jointly charged with robbery in one indictment. An admission by accused number one to the police that accused number one and accused number two committed the offence is not admissible against accused number two and a direction to the jury is usually sufficient to overcome any prejudice that might be suffered by accused number two as a result of the jury hearing evidence about the admissions made by accused number one.
This, however, is a different type of case. It is a type of case where the courts and Parliament have over many years struggled to balance out the interests of the accused person and the victim. For example, for a time juries were warned that they should not convict on uncorroborated evidence of a complainant. This kind of direction was then prohibited by legislative direction. See for example s 36BE of the Evidence Act. See also the changes in the law about evidence or lack of directions to be given concerning evidence of recent complaint. The changes were in turn balanced by the High Court in Longman holding that it is still necessary in appropriate cases to warn juries about circumstances which may lead to a miscarriage of justice, the circumstances being those cases where an accused might have difficulty in defending a charge laid many years after the offences were alleged to have occurred.
The reason for this ebb and flow of attitudes, resulting in the need for different warnings at different times, is because of the awareness that on the one hand, sexual offences committed by parents, family members or de facto family members on children, will usually have a devastating effect on the victim, while on the other hand recognising the devastating effect on an innocent person of a conviction for sexual offences which that person did not commit.
In this case, the alleged offences occurred when the female complainant was about 10 or 11 and the alleged offence against the boy was when he was about five, six or seven. The female complainant is now over 30 years of age and the male complainant is now over 26 years old. These offences are therefore offences alleged to have occurred about 20 years ago.
The male complainant had not made any complaint about the one incident concerning him until about 17 years after the alleged offence. He recounted the incident for the first time to his brother at the pub when reminiscing about his childhood. His evidence will be that before then he 'hadn't really thought about it'. Given that evidence, it is not surprising that his deposition reveals that his memory of the incident is incomplete.
The illegal conduct concerning the male complainant (this being the only incident concerning him) appears to have been opportunistic and incidental behaviour. It was not part of a pattern of conduct against the male complainant. The appellant's sexual conduct against the female complainant, on the other, hand was part of a pattern of conduct occurring over a lengthy period of time. His conduct occurred so often that the female complainant had trouble remembering specific occasions.
In my opinion there will be a substantial risk of an unfair trial if the charge concerning the male complainant, count 2, is tried at the same time as the trial of the offences against the female complainant. The risk arises not just because of the inadmissible evidence which will be heard by the jury, but also because of the passage of time between the date of the alleged single offence against the male complainant and the date when the male complainant recounted the circumstances of the alleged offence against him, 17 years later. As Gaudron, Gummow and Hayne JJ said in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, at [5], whatever a person may believe and no matter how earnestly that person may try to be accurate, experience does show that memory of events does change as time passes. This problem is aggravated when an adult tries to recount what happened to them as a child in a single incident. The problem is manifest in the deposition of the male complainant in this case. The case concerning count 2 is therefore likely to be much weaker than the case concerning the offences against the female complainant who will not be recalling and giving evidence of a single incident, but recalling and giving evidence of an extended pattern of behaviour. The evidence concerning the offences against the female complainant will prejudicially bolster the case concerning count 2, and in my opinion no direction will overcome the prejudice.
I would therefore uphold ground (a) and (e), allow the appeal, set aside the order made by the trial judge and order that there be a separate trial in relation to count 2.
BUSS JA: The appellant has been charged on an indictment dated 4 April 2006 which alleges six counts of sexual offences against two complainants, CM and CE. Counts 1 and 3 ‑ 6 relate to CM (a girl), and count 2 relates to CE (a boy). CM and CE are sister and brother. The counts read, relevantly:
(1)On a date between 10 February 1985 and 1 January 1986, at Bassendean, the appellant indecently dealt with CM, a girl under the age of 13 years, by kissing her on her mouth.
(2)On a date between 4 February 1985 and 19 June 1987, at Bassendean, the appellant indecently dealt with CE, a child under the age of 14 years, by touching his penis.
(3)On or about 19 June 1987, at Bassendean, the appellant indecently dealt with CM, a girl under the age of 13 years, by touching her breasts.
(4)On or about 27 April 1988, at Bassendean, the appellant indecently assaulted CM by touching her breasts. CM was under the age of 16 years.
(5)On the same date and at the same place as count 4, the appellant sexually penetrated CM without her consent, by performing cunnilingus on her. CM was under the age of 16 years.
(6)On the same date and at the same place as count 4, the appellant sexually penetrated CM without her consent, by penetrating her vagina with his penis. CM was under the age of 16 years.
The appellant has pleaded not guilty to each count. The nature of his defence is not apparent. Also, it has not been suggested that he has made any relevant admissions. The respondent must therefore prove beyond reasonable doubt every element of the alleged offences, and exclude any defence which might arise.
On 1 December 2006, McCann DCJ heard the appellant's application for an order that the indictment be severed to provide a separate trial for each complainant, pursuant to s 133 of the Criminal Procedure Act 2004 (WA). On 31 January 2007, his Honour dismissed the application. The appellant appeals against that decision.
Circumstances of the offences
The circumstances of the offences are set out conveniently in the learned judge's reasons. No complaint was made about his Honour's summary which I reproduce:
The State relies, inter alia, on statements provided by [CM], [CE] and their mother. For the purposes of this application, and in particular in determining the admissibility of the evidence I have just mentioned, I am required to take the evidence that the State proposes to lead at its highest. That is to say, I am to assume that the witnesses will come up to proof and will not be shaken in cross‑examination (see Donaldson v Western Australia (2005) 31 WAR 122 per Roberts‑Smith JA at [125] and [153]).
According to her witness statement dated 11 May 2005, [CM] will testify that she was born on 21 November 1974. She is the sister of [CE]. Their mother began a relationship with the accused when [CM] was eight years of age. In late 1984 or early 1985 (when she was approximately 10 years of age) the complainants' mother and the accused purchased a house in Bassendean and began living at that property together with the complainants. She states that she was in year six of primary school that year. (Education Department records disclose that [CM] was enrolled at the Bassendean Primary School on 11 February 1985.) [CM] states that the accused began occasionally touching her in an inappropriate way after the family moved into the Bassendean property. This involved him touching her vagina over her clothes whilst she was carrying out domestic tasks such as washing dishes. The same year, namely 1985, the accused began entering her bedroom at night. On the second occasion he kissed her on the mouth despite her objections and struggles. As I understand it, count 1 on the indictment is based on this event. [CM] states that the accused continued to deal with her in this way on a nightly basis on Sundays to Thursdays for some period of time. She did not reside in the Bassendean home on Fridays and Saturdays because on those nights she resided with her father.
[CM] further states that at some point the accused began questioning her as to whether her natural father was sexually abusing her and attempted to find out the particulars of such abuse. [CM] states that there was in fact some foundation for such questions but she did not know how the accused knew she was being sexually abused and she always denied it to him. [CM] states that in June 1987 (when she was 11 years of age) the accused told her mother that he believed [CM]'s father was sexually abusing her. [CM]'s mother questioned [CM] about this and she admitted that her father had been touching her inappropriately. Shortly afterwards [CM] was medically examined at Princess Margaret Hospital. [CM] states that the accused came into her room on the night of her attendance at Princess Margaret Hospital whilst she was asleep and tried to kiss her. She says that at the same time the accused rubbed her breast on top of the blanket with his hands. She struggled and managed to get out of bed. As she walked out of the room the accused said to her:
'You let your dad and you let the doctors do it, why won't you let me?'
The State relies on this alleged incident as the basis for count 3 on the indictment. [CM] states that around this time she went to the toilet one day and noticed that a hole had been made in the toilet wall which enabled a person in the toilet to see into the bedroom which she and her brother were then using.
[CM] states that for a period of time the accused did not come into her room and deal with her. She says that at that time she and her brother were sharing the same bedroom and using bunk beds. At some point her mother took the bunk beds out and she and her brother slept on two single beds. She states that from this time onwards the accused resumed his practice of coming into the room at night and attempting to kiss her. She states that he told her that he loved her and was in love with her. She states that she cried and objected to his activities and tried to hide from him, but to no avail. She states that the accused 'continued to tell me that I should let him touch me because I let my father do it'. She states that this 'really upset' her because she never actually allowed her father to touch her [in]appropriately.
[CM] states that she recalls that the events giving rise to counts 4, 5 and 6 occurred on 27 April 1988 because the following day her mother, her brother, and a family friend left the Bassendean home and went to live in Queensland, that is, they separated from the accused. [CM] states that on the evening of 27 April the accused came into her bedroom whilst she was asleep. She was alone in the room at the time. She states that the accused placed his hand under her night clothes and rubbed her breasts. He then performed cunnilingus upon her and then had intercourse with her. She states that all of these events occurred without her consent.
In a supplementary statement, [CM] has stated that certain photographic slides which have come into the State's possession depict her lying in her bed at the Bassendean home. The State contends that these pictures were taken by the accused.
I turn now to the evidence of [CE]. In his statement dated 14 April 2005 [CE] states that he was born on 7 March 1980. He has the same mother and father as [CM]. He states that ever since he can remember his mother and the accused lived together, although he stayed with his father every weekend. He refers to an incident which occurred 'one evening in 1986 or 1987' when he was six or seven years old. The family was living at the Bassendean property at the time and he had started school, being in either year one or year two. He states that the incident occurred before his mother 'found out that my dad was abusing me, which was in June 1987'. He states that one day at 'dusk' whilst his mother and sister were out, the accused drilled a hole in the wall between the toilet and [his] and [CM]'s bedroom. [CE] states that whilst the accused was drilling this hole he told him that he had to run to his bedroom and look through the hole and watch whenever he saw someone going to the toilet. He states that after the accused finished drilling the hole, the pair walked through the kitchen to put the accused's tools back in his toolbox. The witness statement continues as follows in relation to count 2 on the indictment:
'As [the accused] put his drill away, he grabbed a piece of red electrical wire from his toolbox.
We were standing between the kitchen and the dining room.
[The accused] took his penis out of his clothing. I could see his penis. He then wanked himself a bit. By wanked himself I mean he rubbed his penis back and forward with his hand and he got an erection.
He then measured the circumference of his penis with the electrical wire.
[The accused] told me to take my penis out. I took my penis out and he wanked me off a bit. By that I mean he held my penis in his hand and moved his hand back and forth until my penis became erect.
…
He still had one end of the wire bent to the circumference of his penis, he grabbed the other end of the wire and wrapped it around my penis to measure the circumference of my penis.
He compared the two sizes. I think he may have said something about it.
I remember him doing something strange with the wire but I can't remember what he did.
[The accused] was very casual when he was doing this and he made it seem a very normal thing to do.
After this I told [the accused] my father had done the same thing to me. At the time I didn't think [the accused] was doing anything wrong. I was just telling him about a similar occasion with my father.
[The accused] didn't say anything.
After [the accused] drilled the hole, every time someone in the family went to the toilet he would tell me to run into my room and look through the hole.
It pretty much happened every day.
As far as I know my sister didn't know about the hole.'
[CE]'s statement continues in relation to him using the hole in the toilet wall. He then states that he can remember the accused was always in his and [CM]'s bedroom at night. He recalls that the accused was always standing near the foot of the bunks near [CM]. He then states as follows:
'A few weeks after [the accused] drilled the hole in the toilet [we] were alone in the house again. I can't remember what happened but something happened sexually again, it had something to do with my sister.
I'm not sure if it was just conversation. I know something happened because it caused me to tell [the accused] again that my father was abusing me.
The next day [the accused] told my mother that my father was abusing me.
After then [the accused] stopped telling me to look through the hole in the toilet.'
The complainants' mother states, inter alia, in her statement that on 18 June 1987 she discovered that [CM] and [CE] had been abused by their father. She states that she reported this to the police on 19 June 1987 and took [CM] and [CE] to Princess Margaret Hospital to be medically examined. Records produced by that hospital disclose that an examination of [CM] occurred on 19 June 1987.
Although count 2 alleges that the offence occurred between 4 February 1985 and 19 June 1987, in my view it is possible to infer (placing the evidence I have outlined at its highest) that count 2 occurred a few weeks prior to 18 June 1987, since that is the time period that [CE] says elapsed between the occasion when the accused drilled the hole in the toilet wall and touched him and the occasion when the allegations of abuse by the father were reported to the mother, which it can be inferred occurred on or about 18 June 1987. It can thus be seen that counts 2 and 3 are alleged to have occurred only a few weeks apart. Further, based on the evidence of [CM], during the same period of a few weeks, uncharged acts or acts of a discreditable nature also took place whereby the accused either forcefully kissed [CM] in her bed at night or attempted to do so [3] ‑ [13].
The learned judge's reasons
The learned judge set out his findings:
The similarities, or unifying elements between the allegations involving [CM] on the one hand, and the allegations involving [CE] on the other, are as follows. First, counts 2 and 3 occurred over approximately the same period, namely a few weeks up to and including 19 June 1987. Second, the two complainants are siblings and were the de facto stepchildren of the accused. Third, the alleged offences occurred in the family home. Fourth, there is some evidence that the accused was aware of the fact that the complainants' father may have been abusing both complainants (and as to the specific nature of the abuse in [CE]'s case) and sought to exploit that knowledge. Fifth, some of the allegations of sexual misconduct, particularly counts 2, 4, 5 and 6 are of an extremely serious kind and involve serious forms of sexual activity. Although count 2 simply alleges that the accused 'touched' [CE]'s penis, the alleged facts are of a more serious kind, involving the accused masturbating himself in the presence of the complainant, and then masturbating the complainant, in addition to other matters. Sixth, the accused encouraged [CE] to spy on the females in the family when they were using the toilet. That is, he drew [CE] into a form of 'pact' between them in which [CE] became compliant in what was in effect a form of abuse of [CM].
The dissimilarities between the various allegations are clear, namely different acts were involved in each count and the age and gender of the complainants was different. Having said that, it goes without saying that the nature of the sexual acts alleged to have occurred with [CM] and [CE] were different given their different genders. It seems to me that the seriousness of the manner in which they were both sexually dealt with (ie the fifth point above) tends to dilute the significance of the dissimilarity in the manner in which they were dealt with.
The meaning of the expression 'similar fact evidence' in s 31A of the Evidence Act was considered by Mazza DCJ at first instance in Donaldson and cited without criticism by Roberts‑Smith JA at [81] as follows:
'[It] encompasses a number of different types of evidence, classically being evidence of behaviour which is strikingly similar to that said to constitute the offence or offences before the court…. [It] could also be evidence which shows unusual features, underlying unity, system or pattern, citing Pfennig v The Queen (1995) 182 CLR 461 and Hoch v The Queen (1988) 165 CLR 292… [E]vidence of prior similar conduct may also be led to rebut a defence raised by an accused or to establish that an act was intended and not accidental, referring to Makin v Attorney General (NSW) [1894] AC 57 and Harriman v The Queen (1989) 167 CLR 590.'
In Pfennig v The Queen (1995) 182 CLR 461 and in Hochv The Queen (1988) 165 CLR 292 the High Court stated that the probative force of similar fact evidence is that it raises, as a matter of common sense and experience, the objective improbability of the alleged offences having occurred other than as alleged by the prosecution (see Hoch at 295 per Mason CJ, Wilson and Gaudron JJ and Pfennig at 481‑2 per Mason CJ, Deane and Dawson JJ).
In my view the evidence in relation to each count is not mutually admissible as similar fact evidence in the sense that I have just set out. Although there are similarities between the circumstances upon which each count is based, there are also dissimilarities. In my view there is no striking similarity, or sufficient pattern or system of underlying unity of conduct alleged. Moreover, the identity of the alleged offender is not a contentious issue and the evidence could not have significant probative value on that basis.
Notwithstanding the absence of any striking similarity between the two sets of charges, I am satisfied that there is sufficient similarity and connection between all of the offences, and a sufficient proximity to each other in time and place, to find that they formed part of a series of offences of the same or a similar character within the meaning of cl 7(3)(a) of Sch 1 of the Criminal Procedure Act. Therefore, in my view the counts were properly joined in the one indictment and the accused's application for severance falls to be considered under s 133(3), namely whether he is 'likely to be prejudiced' at his trial by the joinder.
Notwithstanding the evidence on the two sets of charges is not similar fact evidence, in my view it is propensity evidence within the statutory definition of that term in the sense that it is evidence of the conduct of the accused, or of a tendency that he had, which has probative value. In my view, the evidence is also relationship evidence within the statutory definition, in the sense that it is evidence of the attitude or conduct of the accused towards a class of persons over a period of time, namely the two complainants over the period 1985 to 1988.
What is the relevance of the accused's tendency, attitude or conduct? In my view the evidence is relevant as it tends to show that the accused had a sexual interest in the complainants and/or that he had a tendency to deal with them in a sexual way rather than an innocent (ie properly parental) way. I would be less inclined to that view if the facts and circumstances of count 2 had no connection with the other counts, for instance, if the two complainants were strangers to each other and count 2 occurred at an unrelated time and place to counts 1, 3, 4, 5 and 6. However, the connecting elements, or similarities, between the evidence of each count which I have referred to above go beyond establishing simply that the accused committed some other sexual offence involving a child, and tend to establish his attitude towards, and sexual interest in, his own de facto step-children. In my opinion the evidence in respect of all six counts tends to establish that each of the offences and the uncharged acts actually took place as alleged. Furthermore, in my opinion, the evidence tends to negate potential defences which may arise at trial, for instance that any contact or conduct of the accused was innocent in nature. The accused's plea of not guilty puts the prosecution to proof of every element of each offence charged and this requires the State to exclude any defence which might arise (see Donaldson at [181]).
I have had regard to the circumstance that there was a reasonably lengthy interval between the occasions when counts 1, 2 and 3 on the one hand, and counts 4, 5 and 6 on the other, were allegedly committed. In particular, I have considered whether events which occurred at one period in time could bear upon the attitude or tendency of the accused at a later period, or earlier period, as the case may be. In my view this is essentially a matter of weight for the jury (see di Lena at [90] to [92]). In that regard it is relevant to bear in mind that based upon [CM]'s evidence count 1 is effectively a representative count in nature. Her evidence of uncharged acts which are similar to count 1 will effectively establish a link between her evidence in relation to count 1 and the evidence in relation to counts 3 to 6. Further, in my view [CM]'s evidence in relation to counts 1 and 3, and the evidence of uncharged acts, is relevant to establishing the attitude of the accused towards [CM] in April 1988. It shows his 'guilty passion' towards her (if I may employ terminology which is somewhat archaic but nevertheless quite pertinent to this matter). Finally, in my view, the evidence of the events of April 1988 is relevant to the earlier events, and vice versa, in that it will show that each particular count was not an isolated incident, that is to say, each count is placed in context.
In my view, the evidence in respect of each charge is important evidence in the overall scheme of the State's case. Therefore, in my view it has significant probative value in relation to each of the others.
I turn now to consider the risk of an unfair trial, bearing in mind the nature of that risk as explained by Roberts‑Smith JA in Donaldson and di Lena, namely the risk that the jury might uncritically overvalue the probative effect of the evidence and conclude that the accused is guilty of a charge just or simply because he committed other charges or discreditable acts and is therefore the kind of person likely to have committed the offence, without using the evidence as part of a process of dispassionate, logical reasoning. In my view, there is a risk of an unfair trial in this case, in that the possibility cannot be ruled out that the jury will uncritically proceed on the impermissible basis. However, the jury will be clearly directed by the trial Judge as to a number of matters which will in my view greatly minimise the risk and should exclude it. So, the jury will be directed as to the relevance and appropriate uses to which the propensity and relationship evidence can be put (if the jury accept the evidence). It will be up to the trial judge to determine whether or not a propensity warning should be given, but it may not be required (see Noto v The State of Western Australia [2006] WASCA 278 at [27]). Such a direction would be to the effect that the jury should not employ any form of reasoning to the effect that just because or simply because the accused committed other offences or discreditable acts he is the kind of person likely to have committed each of the alleged offences. The jury will also receive a direction in relation to 'separate trials' and be directed as to the need to examine the evidence of each complainant and be satisfied as to its truth before acting upon it. Thus, the jury's attention will be focused on the correct path and form of reasoning. In my view the accused's submission that the risk of prejudice is not usually curable by a direction to the jury should not be accepted. In my view the State correctly submitted that the legislative scheme which altered the common law rules should prevail and the tests therein must be applied according to their terms (see di Lena at [56]).
In all the circumstances I am satisfied that the evidence on each count has significant probative value in relation to each of the others, and that when such probative value is weighed against the risk of an unfair trial (bearing in mind the directions which the jury will receive) 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. Accordingly, in my view the evidence on each count is mutually admissible on all of the others pursuant to s 31A(2) of the Evidence Act. In arriving at this finding I have not taken into account the possibility that the evidence of the two complainants may be the result of collusion, concoction or suggestion. That is a matter of weight for the jury to consider and is precluded from forming part of my deliberations.
In view of my finding that the evidence on all of the charges is mutually admissible and bearing in mind the directions which the jury will be given by the trial judge, I find that it is not likely that the accused will be prejudiced at his trial by the joinder of the six counts in the one indictment. Accordingly, the accused's application for severance of the charges should be dismissed [23] ‑ [35].
In summary, the learned judge's findings were:
(a)The evidence in relation to each count was not mutually admissible as similar fact evidence, but the offences were nevertheless part of a series of offences of the same or a similar character which enabled them properly to be joined in the indictment.
(b)The evidence in relation to each count was propensity evidence (as evidence of the conduct of the appellant, or of a tendency he had) and relationship evidence (as evidence of the attitude or conduct of the appellant towards a class of persons over a period of time) within s 31A of the Evidence Act 1906 (WA).
(c)The evidence in relation to each count tended to show that the appellant had a sexual interest in the complainants or had a tendency to deal with the complainants in a sexual way rather than an innocent (properly parental) way.
(d)The evidence in relation to each count was important in the overall scheme of the prosecution case, and therefore had significant probative value in relation to the other counts.
(e)There was a risk of an unfair trial in that the jury might reason in an impermissible way. However, a direction guarding against this outcome would greatly minimise the risk or exclude it.
(f)When the probative value of the evidence in relation to each count was weighed against the risk of an unfair trial (bearing in mind the directions the jury would receive), 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.
(g)Bearing in mind the directions the jury would receive, it was not likely that the appellant would be prejudiced at his trial by the joinder.
The learned judge's opinion in relation to admissibility must be understood as a provisional view based on the facts and circumstances then known to his Honour. See Wood v The State of Western Australia [2005] WASCA 179 [12] ‑ [13] (Steytler P), [42] (Pullin JA). I also deal with the issue of admissibility on a provisional basis.
Grounds of appeal
The grounds of appeal are:
(1) The learned judge erred in failing to grant separate trials of the counts relating to each complainant:
(a)The learned judge erred in finding that the evidence of one complainant was relevant to the proof of the charges involving the other complainant and vice versa.
(b)...
(c)The learned judge erred in holding that the risk of an unfair trial could be cured by an appropriate direction to the jury.
(d)The learned judge erred in holding that a fair minded person would think that the public interest in advising all relevant evidence of guilt should in the present case have priority over the risk of an unfair trial.
(e)The learned judge erred in holding that the evidence of one complainant was cross-admissible in its totality in the case involving the second complainant and vice versa.
The appellant abandoned ground (b), and conceded that ground (e) was, in effect, a repetition of ground (a).
The appellant does not contend that the offences were improperly joined pursuant to cl 7(3)(a) of Sch 1 to the Criminal Procedure Act (ts 9). Neither does he contend that the evidence was improperly characterised as propensity evidence and relationship evidence (ts 27 ‑ 28). The appellant's arguments are confined, in essence, to whether the learned judge erred in finding that:
(a)the evidence of each complainant had significant probative value in relation to the count or counts involving the other complainant;
(b)any likelihood of the appellant being prejudiced could be guarded against by a direction to the jury; and
(c)the probative value of the evidence, 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.
Relevant legislation
Section 23(2)(b) of the Criminal Procedure Act provides that a prosecution notice must comply with Sch 1, Div 2 of that Act. Clause 2(3) of Sch 1 provides that a prosecution notice or indictment must contain one charge only, unless cl 7 or another written law permits otherwise. Clause 7(3) provides:
A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)form or are a part of a series of offences of the same or a similar character;
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
By s 133 of the Criminal Procedure Act, relevantly:
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
...
(5)In deciding whether to make an order under subsection (3) ... in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
(6)In considering, for the purposes of this section, the likelihood of an accused being prejudiced in the trial by a jury of an indictment that contains 2 or more charges of a sexual nature, the 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.
Section 31A of the Evidence Act provides:
(1)In this section -
'propensity evidence' means -
(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.
Relevant authorities
In Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, the appellant applied for separate trials where sexual offences against four complainants were joined in one indictment. This court refused to order separate trials. Roberts‑Smith JA made these comments on the relevant legislative provisions:
The starting point is the proposition in s 133(3) of the [Criminal Procedure Act] that if the court is satisfied there is likely to be prejudice to an accused by the joinder of two or more charges, the court may order separate trials.
In considering the likelihood of an accused being so prejudiced in the trial of an indictment containing two or more charges of a sexual nature, the 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 (s 133(6)).
It is self‑evident that a court cannot make a severance order under s 133(3) unless satisfied there would be a likelihood of prejudice to the accused.
But satisfaction that there is such a likelihood does not mean an order for severance must be made. In deciding whether or not to make such an order, it is open to the court to conclude that such likelihood can be guarded against by direction to the jury (s 133(5)(a)).
There is a question whether the words 'to so decide' in s 133(5)(b) and (c) refer to the decision to make an order under subs (1) or to the decision that the likelihood of prejudice may be guarded against by a direction to the jury, under subs (5)(a).
Senior counsel for the appellant submitted the words 'to so decide' in subs (5)(b) and (c), must be a reference to the decision referred to in subs (5)(a). Counsel for the respondent agreed. I accept that submission. The only alternative construction would be that it is a reference to the opening words of subs (5), being the decision whether to make an order under subs (3). The latter construction does not make sense; the former does. There would be nothing left upon which (b) and (c) could sensibly operate once the court had decided that likely prejudice to the accused could (or could not) be guarded against by a direction to the jury.
The central test for the making of a decision under [s 133(3)] is whether the court is satisfied the accused is likely to be prejudiced because the indictment contains two or more charges. If there is not such a likelihood, the order cannot be made. If there is, the court may nonetheless refuse to order severance if satisfied that the likelihood can be guarded against by a direction to the jury.
The way in which these provisions logically fall to be determined, in practical terms, therefore seems to me to be as follows:
(1)If the court is satisfied the accused is likely to be prejudiced by the joinder of two or more charges on an indictment, the court may order separate trials.
(2)If the court is not so satisfied, the order cannot be made.
(3)In cases involving sexual charges, in considering the likelihood of prejudice from the joinder, the 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.
(4)Notwithstanding the court is satisfied there is a likelihood of prejudice from the joinder, then
- irrespective of the nature of the offences (subs (5)(b)); and
- even if the evidence on one count is not admissible on another (subs (5)(c)),
it is open to the court to decide the likelihood of prejudice to the accused can be guarded against by a direction to the jury (subs (5)(a)), so that an order for severance need not be made [92] ‑ [99].
In Donaldson, Roberts-Smith JA said, in relation to s 31A of the Evidence Act:
The threshold test for admissibility of any evidence is relevance (Smith v The Queen (2001) 206 CLR 650, [6]). Evidence is relevant if it tends to prove a fact in issue or a fact relevant to a fact in issue. The probative value of relevant evidence is the extent of the tendency of the evidence to do that. Other than similar fact evidence, propensity evidence as defined in s 31A is clearly now admissible precisely because it shows the propensity of an accused to commit offences of the kind charged (in the sense that he or she is a person who has committed other offences). It is a matter of degree. Such evidence will not be admissible if its probative value is less than 'significant', nor unless its (significant) probative value, weighed against the risk of an unfair trial, is such that fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The expression 'relevant evidence of guilt' is tautologous because it is only relevant if it is evidence of guilt. Nonetheless, the expression shows the legislature was concerned here with evidence of guilt of the offence(s) charged, rather than, for example, inclination or mere bad character [118].
His Honour recorded, at [119] ‑ [124], the passage of English law in reformulating the 'similar fact' evidence test so as to focus on sufficient probative value to justify admission notwithstanding its prejudicial effect, and said:
In Director of Public Prosecutions v P [[1991] 2 AC 447] and R v H [[1995] 2 AC 596], the House of Lords has come to the same position on the issue of admissibility and the possibility of concoction, in substance at least, as the legislature has statutorily mandated in this State in s 31A of the Evidence Act. The admissibility of any evidence (including similar fact or relationship evidence) which tends to show an accused has committed other offences or been guilty of other discreditable conduct, is to be determined by weighing its probative value against its prejudicial effect - and in making that determination, the Judge is to assume the witnesses will come up to proof and will not be shaken in cross-examination. That being so, the possibility of concoction does not arise at that stage, but is ultimately a matter for the jury (R v H per the Lord Chancellor at 604 - 605, 609, 611 - 612; Lord Griffiths at 613 - 614; Lord Mustill at 621 - 622; Lord Lloyd of Berwick at 624 and Lord Nichols of Birkenhead at 627). The test, now decisively stated in Director of Public Prosecutions v P, is that evidence which discloses the accused has committed other crimes or engaged in other discreditable conduct will be admissible if so probative of the crime charged, that fairness and common-sense demand that it be admitted [125].
In Donaldson, Roberts‑Smith JA then turned from the issue of the probative nature of the evidence in relation to s 31A, to the remaining consideration in that section of the risk of an unfair trial:
The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning.
In R v H, Lord Griffiths spoke (supra, 613) of judicial fears that convictions might be based on "emotion or prejudice rather than a fair evaluation of the facts of the case …".
The notion of what prejudice is sought to be guarded against in this context was identified by Callaway JA (Phillips CJ and Buchanan JA concurring) in R v Best [1998] 4 VR 603 at 614 - 616. As his Honour there made clear, it is the first of the two principles enunciated by Lord Herschell LC in Makin v Attorney General for New South Wales (supra) at 65, that evidence which shows that the accused has been guilty of criminal acts other than those charged cannot be relied upon for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offences charged - that is to say, that the accused is the kind of person likely to have done so. His Honour went on to say (at 615):
'Even if the view be accepted that some propensity evidence is admissible as such because of its high degree of relevance or cogency (Harriman v R at 598-9; Pfennig's case at 484-5), the tribunal of fact must not reason that just because the accused engaged in misconduct on a previous occasion, he is the kind of person who is likely to have committed the offence charged. It is such simple, but beguiling, reasoning against which a propensity warning is directed. Such a warning is not confined to sexual offences: …' (Emphasis in original)
In my opinion, the unfairness with which s 31A of the Evidence Act and the risk of prejudice with which s 133 of the [Criminal Procedure Act] are concerned, is the use of probative propensity evidence in this impermissible way. The term 'propensity reasoning' is apt to describe that process of reasoning which infringes the first of Lord Herschell's principles in Makin, to distinguish it from the process whereby, whether because coincidence or fortuitousness could not otherwise explain it, the subject evidence tends directly to prove the accused's guilt of the offences charged [127]-[130].
As to applications for separate trials where an accused is jointly charged with sexual offences against two or more complainants, also see Wood; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; The State of Western Australia v GBT [2006] WASCA 75; The State of Western Australia v Osborne [2007] WASCA 183. As to s 31A of the Evidence Act, also see Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [21] ‑ [28].
Finally, I note that the appellant relies on Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303. That decision is not, however, in point in that the High Court was not concerned with the express statutory alteration effected by s 31A of the Evidence Act. See Osborne [24] (Wheeler JA), [50] (Pullin JA).
Merits of the appeals: grounds (a) and (e)
In my opinion, the learned judge did not err in finding that the evidence of CM was admissible in relation to the count involving CE, or in finding that the evidence of CE was admissible in relation to the counts involving CM.
The learned judge decided, correctly, that the evidence on each count is 'propensity evidence', as defined in s 31A of the Evidence Act, in that it is evidence of the appellant's conduct or of a tendency that he had; in particular, conduct of a kind suggesting a propensity. His Honour also decided, correctly, that the evidence on each count is 'relationship evidence', within s 31A, in that it is evidence of the appellant's attitude or conduct towards a class of persons; namely, the appellant's de facto step‑children.
The evidence of each complainant has significant probative value in relation to the occurrence of the alleged offences in the context of the facts, taken together, that the complainants were sister and brother, and young children; they were the appellant's de facto step‑children; the offences occurred at the family home; count 2 relating to CE occurred during the period when the counts relating to CM occurred and, at least, in close temporal proximity to count 3; the appellant appears to have known that the complainants' natural father was sexually abusing them and that before 18 June 1987 the complainants had not disclosed that abuse to anyone else, and the appellant appears to have used that information to his advantage; the appellant drilled the hole in the wall between the toilet and the complainants' bedroom in the presence of CE, and he persistently encouraged CE to spy on others (which, obviously, included CM) using the toilet; CM later noticed the hole in the toilet wall and covered it because she feared the appellant would watch her through it; and CE recalls seeing the appellant enter the bedroom at night and stand by the bed occupied by CM.
Any dissimilarity between the complainants and their evidence, such as the different types of conduct involved, and the difference in age and gender of the complainants, pales in significance in the context of the facts I have recounted at [37] above, and does not materially reduce the probative force of the evidence.
The alleged sexual assault on CE, and its probative force in relation to the counts involving CM, must be evaluated in the context of the facts set out at [37] above, and also in a more specific context which demonstrates a particular connection between the appellant's conduct concerning CM and CE. First, the appellant allegedly contemporaneously drilled the hole in the wall between the bathroom and the complainants' bedroom in CE's presence, masturbated himself and CE, compared the circumference of his penis with the circumference of CE's penis, and suggested to CE that he use the hole in the wall to spy on others (which, obviously, included CM). Secondly, for a few weeks after drilling the hole, whenever a family member entered the toilet the appellant allegedly urged CE to run to his bedroom and look through the hole. By all of this conduct, taken together, the appellant apparently sought to encourage CE's premature and unhealthy sexualisation, including attempting to foster a shared sexual interest in relation to, relevantly, CM.
The alleged sexual assaults on CM, and their probative force in relation to the count involving CE, must also be evaluated in the context of the facts set out at [37] above and, in addition, the more specific context referred to at [39] above.
In my opinion, the appellant's conduct, tendency or attitude has significant probative value in that it tends to establish that he had a distorted view of appropriate behaviour concerning children, and had dealt with the complainants in a manner that was not innocent or properly parental. Also, the similarities between the evidence on each count do not merely tend to prove that the appellant committed some other sexual offence involving a child, but also tend to prove his attitude towards his own de facto step‑children (in particular, as I have mentioned, the appellant's sexual interest in CM, and his encouragement of CE's premature and unhealthy sexualisation including in relation to CM).
The learned judge concluded, correctly, that the evidence in respect of each count tends to establish that all of the counts and the uncharged acts actually occurred as alleged, and tends to negate potential defences which may arise at trial including, for example, that the appellant's conduct towards the complainants was innocent in nature and that no sexual or related misconduct occurred.
Grounds (a) and (e) fail.
Merits of the appeal: grounds (c) and (d)
The learned judge did not err in finding that the risk of an unfair trial could be cured by a direction to the jury, or in finding that a fair-minded person would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In Donaldson, Roberts Smith JA said:
If the evidence on one count was admissible in respect of the others (and vice versa), there clearly could be no prejudice from the joinder. If there was no such likelihood of prejudice demonstrated, it was not open to his Honour to make a separate trials order [101].
His Honour said further, in this respect:
Once it is shown that the evidence is mutually admissible, it would be rare for the joinder to give rise to the prejudice of which s 133 speaks. Here, counsel for the appellant was unable to suggest any likelihood of prejudice arising otherwise than because the evidence was not mutually admissible. There was accordingly no other factor to be taken into account by his Honour [146]. (emphasis in original)
Also see GBT [49] ‑ [50] (Wheeler JA, Steytler P and Buss JA agreeing).
Although there is a risk that a jury might uncritically overvalue the probative effect of the evidence in question and conclude that the appellant must have committed the offences charged simply because he has committed other offences or has done other discreditable things, instead of confining the use of the evidence to a process of dispassionate, logical reasoning (see Donaldson [127]), the jury will be directed by the judge at trial as to the impermissibility of such reasoning and as to the relevance, and appropriate use, of such evidence. The direction should neutralise the risk.
As the risk of an unfair trial should be able to be neutralised, it was proper for the learned judge to conclude, in accordance with s 31A(2)(b) of the Evidence Act, that a fair-minded person would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, particularly having regard to the type of evidence to be adduced in, and the circumstances of, this case. The alternative scenario would be that two separate juries would consider the case in relation to each complainant without having a complete picture of the appellant's conduct. In such a situation, there is a real risk that the public interest would not be served.
Further, as to s 133(3), (5) and (6) of the Criminal Procedure Act, even if the judge at trial were to determine on a final (as distinct from a provisional) basis that any of the evidence in question is inadmissible on a particular count or counts, there is no reason to doubt that any prejudice to the appellant arising from the joint trial of the counts relating to CM and CE may be guarded against by appropriate directions to the jury.
Grounds (c) and (d) fail.
Conclusion
The learned judge did not err in failing to order separate trials. I would dismiss the appeal.
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