Buchanan (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0022

ALBERT BUCHANAN (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2022
DATE OF JUDGMENT:	30 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 130
JUDGMENT APPEALED FROM:	DPP v [Buchanan] (Ruling No 1) (Unreported County Court of Victoria, Judge Stuart, 11 August 2021) DPP v [Buchanan] (Ruling No 2) (Unreported, County Court of Victoria, Judge Stuart, 27 October 2021) DPP v [Buchanan] (Ruling No 3) (Unreported, County Court of Victoria, Judge Stuart, 22 February 2022)

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CRIMINAL LAW – Interlocutory Appeal – Sexual offences against teenage females – Five complainants – Offending in relation to four complainants alleged between 1985 and 1989 – Offending in relation to one complainant alleged between 2001 and 2002 – Whether judge erred in ruling complainants’ evidence was cross-admissible as tendency evidence – Whether probative value of tendency evidence substantially outweighed any prejudicial effect – Whether judge should have severed indictment – Evidence cross-admissible – No basis for severance – Leave to appeal refused – Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56; McPhillamy v The Queen (2018) 361 ALR 13 considered – Evidence Act 2008 ss 97, 101(2).

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Counsel
Applicant:		Mr G Casement and Ms L Andrews
Respondent:		Mr D Glynn and Mr P Pathmaraj
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
T FORREST JA:

Introduction

Pursuant to certification[2] granted by a judge of the County Court on 22 February 2022, the applicant seeks leave to appeal against three rulings (‘the rulings’ or ‘the interlocutory decisions’). The rulings – Ruling 1,[3] Ruling 2[4] and Ruling 3[5] – concern the admissibility of tendency evidence under the Evidence Act 2008 (‘the Act’) and severance. There are two principal issues. The applicant contends, first, that the judge was wrong to find that the evidence of five complainants concerning conduct founding charges in a 10 charge indictment was cross-admissible as tendency evidence; and, secondly, that the judge erred in failing to sever the indictment.
[2]See ss 295(3)(a) and (b) of the Criminal Procedure Act 2009 (‘CPA’).
[3]DPP v [Buchanan] (Ruling No 1) (Unreported, County Court of Victoria, Judge Stuart, 11 August 2021) (‘Ruling 1’).
[4]DPP v [Buchanan] (Ruling No 2) (Unreported, County Court of Victoria, Judge Stuart, 27 October 2021) (‘Ruling 2’).
[5]DPP v [Buchanan] (Ruling No 3) (Unreported, County Court of Victoria, Judge Stuart, 22 February 2022) (‘Ruling 3’).
As will appear, we consider that the judge’s decisions on both principal issues was open to him. We would thus refuse leave to appeal. Our reasons follow.

Background

The application for leave to appeal against the interlocutory decisions arose in the following way.
An indictment numbered K11817914 filed in the County Court (‘the first Indictment’) initially charged the applicant with 18 charges against five complainants: ‘SLS’, ‘SMBP’, ‘LMM’, ‘MET’ and ‘LJM’. Following Ruling 1, however, the prosecution filed a fresh indictment[6] numbered K11817914.2 (‘the second indictment’) containing 12 charges involving the same five complainants. The practical effect was that a number of charges concerning LMM effectively were abandoned.[7]
[6]See CPA, s 164.
[7]The charges from the first indictment that were not reproduced in the second indictment included a charge of buggery (charge 1) that allegedly occurred at the applicant’s mother’s house when LMM was aged seven years; a charge of rape (charge 5), which was said to have occurred following the alleged aggravated burglary (charge 1) now charged in Indictment 2B; and charges involving incidents that allegedly occurred at a local ‘lookout’ when LMM was 16, being indecent assault (charges 10 and 14) and penile-oral rape (charges 11 and 15).
Following Ruling 2, the prosecution filed two fresh indictments, numbered K11817914.2A (‘Indictment 2A’) and K11817914.2B (‘Indictment 2B’). The practical effect of that exercise was that charges 1 and 2, and 5 to 12, from the second indictment were reproduced in Indictment 2A as charges 1 to 10; and charges 3 and 4 from the second indictment were replicated in Indictment 2B as charges 1 and 2. Thus, as things then stood, it was contemplated that there would be separate trials on Indictments 2A and 2B.

As mentioned, Indictment 2A contains 10 charges. Of the 10 charges, one involves SLS (charge 1); one concerns SMBP (charge 2); three charges relate to MET (charges 3, 4 and 5); three charges concern LMM (charges 6, 7 and 8); and two charges involve LJM (charges 9 and 10). The conduct charged on the indictment embraces a period between July 1985 and February 2001, as follows:
·    Charge 1 – Indecent assault of SLS, between 2 July 1985 and 1 July 1987;
·    Charge 2 – Indecent assault of SMBP, between 10 March 1986 and 21 May 1988;
·    Charge 3 – Indecent assault of MET, between 18 November 1987 and 20 March 1988;
·    Charge 4 – Rape of MET, between 18 November 1987 and 20 March 1988;
·    Charge 5 – Sexual penetration of MET, a child aged between 10 and 16, between 18 November 1987 and 20 March 1988;
·    Charge 6 – Indecent assault of LMM, between 1 August 1988 and 3 July 1989;
·    Charge 7 – Indecent assault of LMM, between 1 August 1988 and 3 July 1989;
·    Charge 8 – Rape of LMM, between 1 August 1988 and 3 July 1989;
·    Charge 9 – Indecent assault of LJM, a child under 16 years, between 12 February 2001 and 11 February 2002; and
·    Charge 10 – Indecent assault of LJM, a child under 16 years, between 12 February 2001 and 11 February 2002.
Indictment 2B contains two charges that solely relate to conduct allegedly perpetrated against LMM on 31 January 1987:
· Charge 1 – Aggravated burglary of premises occupied by LMM; and
· Charge 2 – Sexual penetration of LMM, a child aged between 10 and 16.
Notwithstanding the de facto severance achieved by the filing of Indictments 2A and 2B on the heels of Ruling 2, counsel for the applicant sought further severance of Indictment 2A. In effect, counsel submitted that:
·    first, charges 1 to 5, involving SLS, SMBP and MET, should be tried together;
·    secondly, charges 6, 7 and 8, relating to LMM, should be the subject of a second trial; and
·    thirdly, charges 9 and 10, involving LJM, should be the subject of a third trial.
By Ruling 3, however, the judge refused severance, adopting the reasoning in his two earlier rulings, Ruling 1 and Ruling 2. (The judge did, however, grant certification with respect to those rulings pursuant to ss 295(3)(a) and (b) of the CPA.)

Grounds of appeal

By a notice dated 3 March 2022, the applicant seeks leave to appeal against the interlocutory decisions on six grounds[8] which contend that the judge erred –
[8]At the hearing of the present application the applicant was given leave to amend the notice by adding ground 2(A).
1.… in finding that the accused has a tendency to be ‘sexually attracted to teenage girls and a preparedness to act on that attraction’.
2.… in finding that the evidence of [LMM] is admissible as tendency evidence against the other four complainants, in particular:
(a) in finding that the evidence has significant probative value.
(b)in finding that the probative value of the tendency evidence is not substantially outweighed by the prejudicial effect on the [applicant].
2(A) … in finding that the evidence of [MET], [SLS], [SMBP] and [LJM] is admissible as tendency evidence against [sic] [LMM]:
(a) in finding that the evidence has significant probative value;
(b) in finding that the probative value of the tendency evidence is not substantially outweighed by the prejudicial effect on the [applicant].
3.… in finding that the evidence of [LJM] is admissible as tendency evidence against the other four complainants, in particular:
(a) in finding that the evidence has significant probative value.
(b)in finding that the probative value of the tendency evidence is not substantially outweighed by the prejudicial effect on the [applicant].
4. … by failing to sever the charges of [LMM] from the other complainants.
5.… by failing to sever the charges of [LJM] from the other complainants.

The prosecution case

So as to understand the issues raised in this application, it is necessary to summarise the prosecution case as set out in the Amended Summary of Prosecution Opening for Trial, dated 3 September 2021.
The applicant grew up in a central Victorian city, living with his mother and other relatives. LMM, his niece, lived with the family. As mentioned, the alleged offending against LMM is said to have occurred between late January 1987 and early July 1989 (Indictment 2A, charges 6, 7 and 8; Indictment 2B, charges 1 and 2), when she was aged between 14 and 16.
In around 1985, when he was aged 20 years,[9] the applicant formed a relationship with ‘KS’, then aged 16. He is alleged to have committed sexual offences against: KS’s friend, SLS, between 1985 and 1987, when SLS was aged 16 or 17 (Indictment 2A, charge 1); KS’s cousin, SMBP, between 1986 and 1988, when SMBP was aged 17 or 18 (Indictment 2A, charge 2); and against KS’s younger sister, MET, between 1987 and 1988, when MET was 14 (Indictment 2A, charges 3, 4 and 5).
[9]The applicant was born in October 1964.
Some years later, the applicant formed a relationship with ‘AS’, whose niece was LJM. The applicant is charged with sexual offending against LJM between 2001 and 2002, when she was aged 14, more than 11 years after the alleged offending against MET (Indictment 2A, charges 9 and 10).

Charge 1 (Indictment 2A) – SLS: indecent assault

It is alleged that, when SLS was aged 16 or 17, she was staying at KS’s house. They went to sleep in a double bed. SLS awoke to find the applicant on top of her. She could feel his erect penis between her legs, touching her skin close to her vagina. SLS jumped out a window and did not return to the house that night.

Charge 2 (Indictment 2A) – SMBP: indecent assault

On an occasion when she was aged 17 (but before her baby was born in May 1988), SMBP was visiting KS. SMBP went to sleep on the couch. When she awoke, the applicant sat on her leg and inserted his fingers into her vagina, pushing them in and out. The applicant stopped when SMBP told him to take his fingers out, and threatened to yell out.

Charges 3, 4 and 5 (Indictment 2A) – MET: indecent assault and rape (alternatively sexual penetration with person aged between 10 and 16)

In late 1987 or early 1988, MET, aged 14, visited her sister, KS, who was then living with the applicant. Before MET went to bed on the couch, the applicant said to her, ‘I’d like to see you on the end of my dick’. After she retired, she was roused by the applicant’s hand pressing her hip. The applicant took her hand and put it onto his erect penis (charge 3). He then said, ‘you’ve got to suck it, you’ve got to give me a bit of head’, then grabbed the back of MET’s head and pushed his penis into her mouth without her consent (charge 4, alternatively charge 5). The applicant desisted after she threatened to tell KS.

Charges 1 and 2 (Indictment 2B) – LMM: aggravated burglary and sexual penetration with a person aged between 10 and 16

As we have indicated, Indictment 2B was filed following Ruling 2. In order to provide context, however, it is convenient to note the conduct founding charges 1 and 2 (formerly charges 3 and 4 on the first Indictment).
On 31 January 1987, when LMM was aged 14, there was a sporting event followed by a function. At the function, the applicant and his sister bought LMM alcohol. After consuming the alcohol, LMM felt sick and vomited. The applicant’s sister took LMM to her home and put her to bed. It is alleged that sometime later the applicant broke into his sister’s house through a rear bedroom window with the intention of sexually assaulting LMM (charge 1). LMM woke up in a bedroom lying naked on a bed. The applicant was on top of her, having penile-vaginal intercourse (charge 2). LMM complained to the applicant’s sister the following day that the applicant had broken into the house and raped her.

Charges 6, 7 and 8 (Indictment 2A) – LMM: indecent assault (two charges) and rape

After the applicant and KS had separated, the applicant went back to live at his mother’s house, where LMM was residing. Between mid-1988 and mid-1989, LMM was folding laundry in the rumpus room at the back of the house. The applicant came into the room wearing a dressing gown and opened the gown. He was naked underneath. The applicant then grabbed LMM’s hand and put it on his penis, using her hand to masturbate himself (charge 6). He then took LMM to his bedroom, lay her on the bed, took her pants off and, without her consent, licked her vagina, penetrating it with his tongue (charge 7). On another occasion, after LMM had taken steps to prevent entry to her bedroom through the door, the applicant entered her bedroom through a window. He got into bed with her and, without her consent, inserted his penis into her vagina. He thrust his penis in and out of LMM, before removing it and ejaculating onto her stomach (charge 8).

Uncharged acts – LMM

The prosecution also seeks to rely on three uncharged acts relating to LMM, which are said to have occurred when LMM was aged about 16. It is alleged that the applicant started coming into her bedroom. On one occasion he came into her room while she was standing at her dressing table and kissed her passionately, inserting his tongue into her mouth. Not long afterwards he again came into LMM’s bedroom while she was lying in bed, and started taking his clothes off. He desisted and left when his mother unexpectedly came into the room. Thereafter, LMM began taking steps to lock her bedroom door, and devised a method of wedging the door closed with a knife. The applicant then started trying to enter her room through the window.

Charges 9 and 10 (Indictment 2A) – LJM: indecent act with child under 16 (two charges)

LJM was raised by the applicant’s sister, her foster mother, and was a good friend of the applicant’s son. In 2001, when she was aged 14, LJM spent the night at a house where the applicant lived with AS and his three children. After LJM had gone to bed alone in a front bedroom, the applicant came into the room, took her right hand and placed it on his penis, moving it back and forth (charge 9). The applicant used his other hand to touch LJM on the breasts and lower part of her body (charge 10). LJM pretended to be asleep throughout. When LJM jumped up and tried to run to the front door, the applicant prevented her from leaving.

Tendency notice

For the purposes of the first Indictment, the prosecution served two tendency notices pursuant to s 97(1)(a) of the Evidence Act 2008, both dated 2 August 2021. One was a ‘general’ notice – in Ruling 1 the judge described it as ‘the second amended tendency notice as it relates to all five complainants’ – which included the following:
2. The Prosecution seek to rely upon the tendencies of the [applicant] to:
2.1 Act in a particular way, namely;
(a)to attend upon and sexually assault females who were staying in the same home as him, at night-time and whilst they were in bed;

(b)to sexually assault teenage girls who were in his house when the opportunity presented;
(c)to sexually assault teenage girls who were in his house when the opportunity presented despite the presence of other people in the house.

…

4. The issues in the case to which Tendency Reasoning applies are:
4.1 Whether the acts constituting the alleged offences (‘the relevant acts’) occurred.

5.The tendency set out at paragraph 2 is relied upon in support of the following charges as making more likely the facts surrounding those charges.
[Paragraphs 5.1 to 5.11 are not reproduced]

Table A of the general notice sets out the evidence relied upon by the prosecution to establish the three ‘tendencies’ above. It is broken into three, self-explanatory columns: ‘Substance of Evidence Relied Upon to Support Tendency’; ‘Features of Evidence Establishing the Tendency’; and ‘Relevant Witnesses and Depositions Reference’. It refers to alleged conduct supporting charges 3, 4 and 5, involving MET;[10] conduct supporting present charges 6 and 7, involving LMM;[11] conduct supporting present charge 8, also involving LMM;[12] uncharged conduct involving LMM;[13] and conduct supporting what are now charges 9 and 10, involving LJM.[14]
[10]See [17] above.
[11]See [20] above.
[12]See [20] above.
[13]See [21] above.
[14]See [22] above.
The other tendency notice is specific to LMM. It includes the following:
2. The Prosecution seek to rely upon the tendency of the [applicant] to:
2.1 Have a particular state of mind, namely;
(a)To have a sexual interest in [LMM] and a willingness to act on it.
…
4. The issues in the case to which Tendency Reasoning applies are:
4.1 Whether the acts constituting the alleged offences (“the relevant acts”) occurred.
5.The tendency set out at paragraph 2 is relied upon in support of the following charges as making more likely the facts surrounding those charges.
[Paragraphs 5.1 to 5.9 are not reproduced, but they include references to charges now abandoned, including buggery (charge 1), rape (charges 5, 11 and 15) and indecent assault (charges 10 and 14) on the first indictment; and references to what are now charge 2 on Indictment 2B, and charges 6, 7 and 8 on Indictment 2A.]
Table A of the notice specific to LMM set out the evidence relied upon by the prosecution to establish the above tendency. It is also broken into three, self-explanatory columns: ‘Substance of Evidence Relied Upon to Support Tendency’; ‘Features of Evidence Establishing the Tendency’; and ‘Relevant Witnesses and Depositions Reference’. It refers to conduct founding several abandoned charges (buggery, charge 1; rape, charges 5, 11 and 15; and indecent assault, charges 10 and 14); conduct supporting what is now charge 2 on Indictment 2B (indecent assault);[15] conduct supporting charges 6 and 7 (indecent assault) and 8 (rape) on Indictment 2A;[16] and to the uncharged conduct also referred to in the general notice.[17]
[15]See [19] above.
[16]See [20] above.
[17]See [21] above.
We pause to note that counsel leading for the respondent made it clear in oral submissions that the tendency notice specific to LMM would not be used on joint trial of charges 1 to 10 on Indictment 2A. Counsel submitted unequivocally that the notice specific to LMM would only be used were there to be a single trial of all of the charges that relate to her.

Ruling 1

Turning first to Ruling 1, the judge noted that the ruling was ‘solely concerned with whether or not the requirements of s 97(1)(b) of [the Act] have been satisfied in relation to what became known as the second amended tendency notice as it relates to all five complainants’.
The judge said that the ‘defence position’ is that ‘all the [LMM] charges and uncharged acts relied on by the prosecution are not cross-admissible’, and similarly that ‘the [LJM] matters are not cross-admissible’, but that the evidence relating to SLS, SMBP and MET is ‘conceded as being cross-admissible’. Further, the judge noted that the prosecution had conceded that the charge of buggery involving LMM (charge 1 on the first indictment) ‘is incapable of establishing the relevant tendency’, and that the second tendency notice does not embrace the aggravated burglary[18] or the abandoned ‘lookout’ charges.[19]
[18]Now charge 1 on Indictment 2B.
[19]See n 7 above.

Next, the judge set out the text of s 97(1)(b) of the Act, and cited passages from Hughes,[20] Bauer[21] and McPhillamy,[22] noting that the disputed issue of fact was whether sexual activity occurred, the defence case being ‘that there was no sexual activity at all between the [applicant] and any of the complainants’.
[20]Hughes v The Queen (2017) 263 CLR 338, 348–9 [16], 361–2 [59]–[60] (Kiefel CJ, Bell, Keane and Edelman JJ) (‘Hughes’).
[21]R v Bauer (a pseudonym) (2018) 266 CLR 56, 82–3 [48]–[49] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Bauer’).
[22]McPhillamy v The Queen (2018) 361 ALR 13, 19 [26]–[27], 20 [31] (Kiefel CJ, Bell, Keane and Nettle JJ) (‘McPhillamy’).
The judge then summarised the relationship of the applicant to the five complainants; the respective ages of the applicant and the complainants; the locations where the alleged offending took place; and persons present in the vicinity of where the alleged offending took place; before referring to the more than 11-year gap between the other alleged offending and that alleged in relation to LJM in 2001. He then addressed what he described as ‘ordinary human behaviour’, before taking a ‘holistic’ view of the evidence, as follows:[23]
This evidence taken holistically, demonstrates that the accused has a tendency to be sexually attracted to teenage girls and was prepared to act on that attraction despite:
(1) the significant age discrepancy between him and the female complainants;
(2) the complainants each had a close relationship with others in the [applicant’s] life which did not present any barrier to him acting on that attraction;
(3) the acts against each complainant were brazen, occurring under the same roof with others generally present in the house despite the risk of discovery and/or later reporting by multiple complainants;
(4) the acts were opportunistic, particularly determined and occurred when the complainants had retired to their bed or couch in the quiet of the night;
(5) the first set of acts occurred during a relatively confined period of two and a half years with the ages of the complainants also confined to between 14 and 17 years of age;
(6) the fact that the same type of sexual activity occurs 11 and a half years later as that described by the other four complainants demonstrates that the accused indeed had an enduring sexual attraction to teenage girls which he was still prepared to act upon.
[23]Emphasis added.
Ultimately, the judge said he was ‘satisfied that the evidence contained in the second amended tendency notice, other than in relation to Charge 1 [buggery], does have significant probative value and that the requirements of s 97(1)(b) of the Act are satisfied’.

Ruling 2

Having found that the requirements of s 97(1)(b) of the Act were satisfied, in Ruling 2 the judge turned his attention to deciding ‘whether the prosecution has discharged the onus under s 101(2) of the Act’.
The judge set out the text of s 101(2), and cited passages from Bauer,[24] Aytugrul[25] and Hughes.[26] He repeated certain aspects of Ruling 1, and noted that the prosecution had filed a new indictment and an amended summary of prosecution opening. The new indictment, the judge noted, did not contain the buggery or ‘lookout’ charges.[27]
[24]Bauer, 93–4 [73] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[25]Aytugrul v The Queen (2012) 247 CLR 170, 185–6 [30] (French CJ, Hayne, Crennan and Bell JJ).
[26]Hughes, 349 [17]–[18] (Kiefel CJ, Bell, Keane and Edelman JJ).
[27]See n 7 above.
After further discussion, during which the judge cited passages from Destanovic,[28] he said:[29]
It is clear to me that the [applicant] cannot receive a fair trial on charges 3 and 4 if the jury also hear the tendency evidence in relation to the other four complainants. Thus, if the tendency evidence is so adduced, the probative value of the evidence does not substantially outweigh the prejudicial effect it may have on the [applicant] on his trial on charges 3 and 4.
Save for those charges, I am otherwise satisfied that the potent probative value of the evidence does substantially outweigh any prejudicial effect in circumstances where other than in relation to the trial of the [applicant] on charges 3 and 4, I cannot identify any real risk of prejudice to the [applicant].
[28]Destanovic v The Queen (2015) 49 VR 276, 307 [99]–[103] (Weinberg and Beach JJA).
[29]Emphasis added.
As we have indicated, following Ruling 2, Indictment 2B was filed, containing what had originally been charges 3 and 4.

Ruling 3

Ruling 3 was concerned with a defence application for severance of Indictment 2A. As part of that application, although the applicant’s counsel conceded that there should be a single trial on charges 1 to 5 involving the complainants SLS, SMBP and MET, he nonetheless contended that there should be a separate trial held in relation to charges 6 to 8 involving LMM, and a third trial of charges 9 and 10 involving LJM.
The judge refused severance, but, as we have indicated, granted certification under ss 295(3)(a) and (b) of the CPA.

Applicant’s submissions

In support of the application in this Court, counsel for the applicant submitted that tendency evidence under s 97(1)(b) of the Act can only be admitted where the court considers that the evidence will, either by itself or having regard to other evidence, have significant probative value. Evidence will have significant probative value ‘if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent’.[30]
[30]Hughes, 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ), citing IMM v The Queen (2016) 257 CLR 300, 314 [46] (French CJ, Kiefel, Bell and Keane JJ).
The applicant’s counsel submitted that, in cases where there are multiple complainants, the prosecution will need to point to ‘special, particular or unusual features’ in order to link the cases involving different complainants. Absent such a ‘special feature’ of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant.[31] Further in cases where there is a single complainant and a course of offending of generally similar sexual acts along with a series of uncharged acts is sought be relied on, a ‘broader rule’ of admissibility applies.[32]
[31]Bauer, 86–7 [56]–[58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[32]Ibid 82 [48]. See also ibid 87–8 [58]–[60].
In oral submissions, the applicant’s counsel conceded that the charges involving SLS, SMBP and MET (charges 1 to 5), were properly joined, and that the evidence on each charge involving those three complainants was cross-admissible vis-à-vis each other. Counsel submitted, however, that the same could not be said of the charges relating to LMM (charges 6 to 8) or LJM (charges 9 and 10).
Under cover of ground 1, counsel for the applicant submitted that the judge erred in holding that the six ‘holistic’ matters set out by the judge in Ruling 1 proved the existence of the alleged tendency.[33] Counsel submitted that the evidence does not support proof of a tendency having regard to the following matters:
·    first, the alleged conduct varies in both nature and gravity; in particular, the alleged rape of LMM (charge 8) is the sole allegation of penile-vaginal penetration, the remaining charges generally being dissimilar;
·    secondly, the alleged sexual offending was not opportunistic in nature, but was ‘predatory’, and emblematic of an ongoing sexual relationship;
·    thirdly, unlike the situation in Hughes, the general tendency notice does not allege that the conduct arose in circumstances where there was a risk of discovery, instead asserting simply that the alleged assaults occurred while other people were present in the respective houses;
·    fourthly, the alleged conduct against LJM is distinctly separated in time from the remainder of the alleged conduct, and there is no evidence that the applicant acted upon the alleged tendency in a similar manner and of a similar gravity in the intervening period;
·    fifthly, the incidents of conduct alleged against SLS, SMBP, MET and LJM are, unlike the repeated offending alleged against LMM, each ‘single isolated incidents’; and
·    sixthly, the evidence shows that the nature of the relationship between the applicant and the complainants is general, and merely shows that the applicant offended against people he knew (as opposed to strangers).
[33]See [31] above.
With respect to ground 2, counsel submitted that it was not reasonably open to the judge to find that the evidence of LMM is admissible as tendency evidence. The evidence relating to LMM’s alleged rape does not have significant probative value as tendency evidence concerning the other complainants given the different nature and gravity of the offending. Nor does the probative value of LMM’s evidence substantially outweigh the prejudicial effect of that evidence being relied upon to support the charges relating to complainants. Counsel submitted that the tendency evidence relating to LMM ‘will inevitably provoke an adverse emotional response and create the real danger that the jury will be disinclined to pay sufficient regard to the real questions of credibility and reliability that arise in respect to the other complainants’. The allegations are more serious than those in respect to the other complainants, and concern an unnatural, ongoing sexual association in a familial relationship. There is a real risk these allegations of LMM ‘will overwhelm the jury and disturb the burden of proof in respect of the other charges’. The prejudice that arises cannot be adequately addressed by directions.
So far as ground 2(A) was concerned, the applicant’s counsel submitted that the evidence of the applicant’s conduct toward SLS, SMBP, MET and LJM does not have significant probative value as tendency evidence with respect to the conduct founding the charges relating to LMM.[34] The alleged offending against the other four complainants is too dissimilar to that involving LMM to properly be viewed as having significant probative value.
[34]Ground 2(A) appears to respond to the following submission found in the respondent’s summary of contentions filed on 6 June 2022 (that is, before the applicant was permitted to add ground 2(A)):
12. It is noted that this ground is addressed to the question of whether the evidence of [LMM] is admissible in relation to the allegations made by the other complainants. Nothing has been advanced as to why the evidence of the other complainants is not admissible in relation to the allegations of [LMM]. … (Emphasis added.)
As to ground 3, counsel submitted that it was not reasonably open to the judge to find that the evidence of LJM is admissible as tendency evidence. The separation of over 11 years between the allegations, without evidence of intervening conduct of a similar nature and gravity, substantially diminishes the probative value of the evidence. Counsel submitted that there is a greater risk that a jury will give disproportionate weight to the evidence of such a tendency by assuming that the behavioural pattern was constant. Prejudice also arises from the quasi-familial relationship between the applicant and LJM, and the emotional impact her evidence would have on the jury.
Counsel for the applicant addressed grounds 4 and 5 together, and submitted that, if grounds 1, 2 or 3 succeed, severance should follow. The evidence relating to LMM and LJM is ‘isolated’, so that they will not be required to give additional evidence as a result of severance. Further, severance will not result in substantial inconvenience of witnesses or inefficient use of judicial resources. On the other hand, the risk of prejudice from a joint trial is unacceptable. There is a real risk that a properly instructed jury will have an emotional reaction to the nature and gravity of these allegations of sexual offending against children. This is especially so for the evidence of LMM, where the allegations are more serious than in the case of other complainants. The real risk that the jury could be overwhelmed by a series of allegations, of varying gravity, against the applicant in a single indictment, cannot sufficiently be mitigated by directions.

Respondent’s submissions

The respondent’s counsel submitted that, in its consideration of the application for leave to appeal, this Court was governed by House principles,[35] so that it was necessary for the applicant to either establish specific error or, absent specific error, that the relevant decision was not reasonably open to the primary judge.[36]
[35]House v The King (1936) CLR 499.
[36]DPP v Pearson (a pseudonym) [2021] VSCA 336, [46] (T Forrest and Walker JJA).
Counsel for the respondent submitted that whether the relevant evidence has significant probative value is to be judged according to the effect of the evidence in combination with other evidence in the case,[37] including other tendency evidence.[38] Thus, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence, which might reinforce it so that it does have, when considered together with all the evidence, significant probative value.[39] The probative value of the tendency evidence is to be judged according to the purpose for which it is introduced.[40]
[37]Hughes, 356 [40] (Kiefel CJ, Bell, Keane and Edelman JJ).
[38]Ibid 362 [61]–[62].
[39]Ibid.
[40]Ibid 356 [40].
With respect to ground 1, the respondent’s counsel submitted that the multiple features identified by the judge[41] were sufficient to establish the relevant tendency. Acknowledging that the alleged conduct ‘certainly does vary in both nature and gravity’, counsel nonetheless submitted that ‘this in no way detracts from the common features which are present’. There will always be differences between different alleged offences. The common feature need only be something of or about the offending which links the cases together.[42] As to LMM, the prosecution case is that the applicant periodically and opportunistically offended against her, with whom he resided. And like Hughes, the alleged offending did occur in circumstances where other persons were present in the house, and hence there was a risk of discovery. As counsel put it in oral submissions, the applicant’s offending against LMM was ‘opportunistic’ in that ‘he did it when he could’. Although the offending relating to LJM was separated in time from the other offending, ‘the conduct against her was so strikingly similar to the conduct against the other complainants that the probative value is very high’. Further, the complainants were all connected to the applicant through familial relationships (if that is taken to include a connection through his then partner, KS).
[41]See [31] above.
[42]Bauer, 87 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Counsel for the respondent submitted that the probative value of the proposed tendency evidence is to be determined by reference to the issues in the trial. In this case, the defence is one of complete denial of each and every allegation. When regard is had to that issue, the common features of the offending against the five complainants ‘is strongly probative of a tendency, which is in turn strongly probative of the offending’.
Addressing ground 2, the respondent’s counsel submitted that the evidence of LMM fits squarely within the tendency as identified by the judge, and is admissible for the reasons he advanced. Counsel submitted that in any collection of charges involving multiple complainants there will always be some allegations that are more serious than others. This cannot be a reason to exclude evidence that is otherwise admissible. The probative force of the tendency evidence is very high, and substantially outweighs any risk of unfair prejudice. Any risk of prejudice is curable by directions. In written submissions, counsel had noted that the applicant has not suggested that the evidence of the other complainants is not admissible in proof of the allegations involving LMM.[43] Following the addition of ground 2(A), however, in oral submissions counsel argued that the evidence of the applicant’s conduct towards the other complainants had significant probative value so far as the allegations involving LMM were concerned.
[43]See n 34 above.
As to ground 3, the respondent’s counsel submitted that the similarities between the alleged offending against LJM and the other complainants could be described as ‘striking’ (if such was required). Any prejudice arising from a joint trial of the charges can be addressed by directions.
Finally, with respect to grounds 4 and 5, the respondent’s counsel submitted that, even if any of the preceding grounds succeeded, severance did not automatically result, there being a legislative presumption in favour of a joint trial.[44] Significantly, counsel made it clear in oral submissions that the tendency notice specific to LMM would not be used on joint trial of charges 1 to 10 on Indictment 2A. Counsel agreed that the notice specific to LMM would only be used were there to be a single trial of all of the charges that relate to her.
[44]CPA, s 194.

Discussion

As we have said, the applicant accepts that there ought be a joint trial of the charges involving SLS, SMBP and MET (charges 1 to 5), but submits that Indictment 2A should be severed so that the charges involving LMM (charges 6, 7 and 8) and LJM (charges 9 and 10) should be tried separately from all other charges.
The four main contentions to be distilled from the applicant’s grounds of appeal are that the judge was wrong to find that:
·    first, the evidence was capable of establishing a tendency for the applicant to be ‘sexually attracted to teenage girls and a preparedness to act on that attraction’;
·    secondly, the evidence of LMM was admissible as tendency evidence in the cases of the other complainants;
·    thirdly, the evidence of the four other complainants was admissible as tendency evidence in the case of LMM; and
·    fourthly, the evidence of LJM was admissible as tendency evidence in the cases of the other complainants.
In support of these contentions, the applicant submitted that the evidence of LMM and of LJM is not admissible as tendency evidence in the case of the other complainants, and that the evidence of the other complainants is not admissible as tendency evidence in the case of LMM, because the evidence does not have significant probative value, and that any probative value it does possess is not substantially outweighed by its prejudicial effect.
We do not accept these submissions.
The starting point of any analysis is s 97(1)(b) of the Act, which provides that evidence of a tendency that a person has (or had) to act in a particular way, or to have a particular state of mind, is not admissible unless the evidence has significant probative value. It is in the following terms:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Where tendency evidence is sought to be relied upon by the prosecution in a criminal case, it is not enough for tendency evidence merely to have significant probative value. Thus, s 101(2) provides that tendency evidence cannot be used against an accused person unless the probative value of the evidence substantially outweighs any prejudicial effect it may have:
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
…
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
In Bauer, the High Court made it clear that, in a case involving a single complainant, proof of the accused’s commission of a sexual offence against the complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, if the two are not too far separated in time:[45]
Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.[46] In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[47]
[45]Bauer, 83 [50] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original).
[46]See [CPA], s 194.
[47]HML v The Queen (2008) 235 CLR 334 at 397–398 [168], 401–402 [181] per Hayne J.
The Court also made it clear in Bauer that, in cases such as the present which involve multiple complainants, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another, the logic of probability reasoning dictates there must be some feature of or about the offending which links the two together:[48]
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.[49] If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.[50] It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority[51] on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.
By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. …
[48]Bauer, 87–8 [58]–[60] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original; emphasis added).
[49]See HML v The Queen (2008) 235 CLR 334 at 354 [11]–[12] per Gleeson CJ; at 382–383 [105] per Hayne J (Gummow J and Kirby J agreeing at 362 [41], 370 [59]); GBF v The Queen [2010] VSCA 135 at [26]; BBH v The Queen (2012) 245 CLR 499 at 525 [70]–[71] per Hayne J (Gummow J agreeing at 522 [61]).
[50]See Hughes v The Queen (2017) 263 CLR 338 at 358-360 [44]–[54] per Kiefel CJ, Bell, Keane and Edelman JJ.
[51]Hughes v The Queen (2017) 263 CLR 338 at 361–362 [57]–[60] per Kiefel CJ, Bell, Keane and Edelman JJ.
In the present case, the general tendency notice relating to all five complainants in essence asserts a tendency on the applicant’s part to act in a particular way; that is, when the opportunity presented, to sexually assault teenage girls whilst they were in bed at night in the same house as him, despite the presence of other people in the house.[52] It is thus somewhat reminiscent of the situation in Hughes, in which the central issue was ‘whether proof that a man of mature years has a sexual interest in female children aged under 16 years (“underage girls”) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl’.[53]
[52]See [23] above.
[53]Hughes, 344 [2] (Kiefel CJ, Bell, Keane and Edelman JJ).
The majority in Hughes appears to have concluded that the tendency evidence relied upon in that case had significant probative value because it made probable that which would otherwise have been considered improbable; that is, that the appellant would engage in sexual conduct with underage girls in circumstances in which he ran a palpable risk of discovery by other adults. Absent that particular feature, the majority would not have concluded that the tendency evidence possessed significant probative value.
Unlike Hughes, not all of the complainants in the instant case were ‘underage’, the notice describing them as ‘teenage girls’. But like Hughes, it is alleged that the offending occurred when the opportunity arose, despite the appreciable risk of detection flowing from the fact that there were other people in the house; and, importantly, it is chiefly alleged – albeit there are exceptions[54] – that the offending occurred at night, when the complainants were in bed.
[54]See, eg, [20] above.
Hughes involved an 11 count indictment, alleging sexual offences committed against five underage girls, aged between six and 15 years. Notwithstanding that the acts charged in each count and the circumstances of their commission varied, the prosecution relied on a tendency notice that particularised differing forms of sexual conduct. An important feature of the alleged conduct was, however, that it occurred in the vicinity of other adults in circumstances in which the appellant was exposed to a real risk of detection by another adult. The charged conduct included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine-year-old girl; encouraging a 15-year-old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years.[55]
[55]The prosecution also sought to adduce tendency evidence from three women who described occasions when they had been at the appellant’s home as young girls and the appellant had either touched them in a sexual way or exposed his penis in their presence. And three other women who had worked with the appellant described occasions, when they were aged in their late teens or early twenties, when the appellant had inappropriately sexually touched them or exposed himself to them.
By way of comparison – and at the risk of repetition – the applicant faces a 10 charge indictment involving five complainants, whose ages were: MET and LJM, 14 years; LLM, 14 to 16 years; SLS, 16 or 17 years; and SMBP, 17 or 18 years. The applicant’s charged conduct includes: touching SLS’s skin close to her vagina with his penis; inserting his fingers into SMBP’s vagina; putting MET’s hand on his erect penis and placing it in her mouth; putting LMM”s hand on his penis, licking her vagina and penetrating her vagina with his penis; and putting LJM’s hand on his penis and touching her breasts and lower body. Significantly, the offending involving SLS (charge 1), SMBP (charge 2), MET (charges 3, 4 and 5), LMM (charge 8 only) and LJM (charges 9 and 10), is all alleged to have occurred in or on a bed or couch, after the particular complainant had retired for the night.
Returning to Hughes, the majority observed that: an inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience; evidence of such an inclination will often include evidence of grooming of potential victims so as to reveal a ‘pattern of conduct’ or a ‘modus operandi’; the particular tendency evidence in the case showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by (such level of disinhibited disregard of the risk of discovery by other adults being even more unusual as a matter of ordinary human experience); the defence case on each count was that the complainant had fabricated her account; and without the impugned tendency evidence, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults.[56]
[56]Hughes, 361 [57]–[58] (Kiefel CJ, Bell, Keane and Edelman JJ).
Having made those observations, the majority considered the evidence relating to one complainant, ‘JP’, who was assaulted in her bed when the appellant and his wife were dinner guests at her home. They said:[57]
Considered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP’s home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.
[57]Ibid 361–2 [59].
And they concluded:[58]
When considered together, all the tendency evidence provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.
The probative value of the evidence of each complainant and [other witnesses] lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.
The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. …
[58]Ibid 362–3 [62]–[64].
In the present case, the judge’s ‘holistic’ view was that the evidence demonstrated that the applicant ‘has a tendency to be sexually attracted to teenage girls and was prepared to act on that attraction’ despite age discrepancy and the complainants’ connection to others in the applicant’s life. Importantly, the applicant’s conduct was ‘opportunistic’ and ‘brazen’, occurring when there was a risk of discovery because of the presence of others under the same roof, and was perpetrated ‘when the complainants had retired to their bed or couch in the quiet of the night’.[59]
[59]See [31] above.
Authority dictates that an application such as the present – which concerns rulings on the admissibility of evidence and the concomitant exercise of discretion whether to sever the indictment – falls to be determined according to House principles.[60] It is therefore necessary for the applicant either to establish specific error or, absent specific error, that the relevant decision was not reasonably open to the primary judge. As we have indicated, the applicant’s counsel submitted that it was not reasonably open to the judge to determine that the impugned evidence was admissible as tendency evidence.
[60]House v The King (1936) 55 CLR 499. See Erickson (a pseudonym) v The Queen [2021] VSCA 234, [41]; Dun (a pseudonym) v The Queen [2021] VSCA 286, [33]; DPP vPearson (a pseudonym) [2021] VSCA 336, [46] (T Forrest and Walker JJA).
The applicant has failed to persuade us that it was not reasonably open to the judge to determine that the impugned evidence was admissible as tendency evidence.
As we have said, counsel for the applicant conceded that the evidence of SLS, SMBP and MET was cross-admissible as tendency evidence in a trial of the charges affecting them, but submitted that the evidence supporting those charges was inadmissible as tendency evidence in proof of the charges relating to LJM and LMM, and that the evidence supporting the charges relating to LJM and LMM (and, in LMM’s case, the evidence of uncharged acts) was not admissible as tendency evidence in the cases of the other complainants. With respect to LJM, counsel principally relied on the temporal gap of more than 11 years; and in the case of LMM, counsel principally relied on the asserted unfair prejudice flowing from the gravity of the conduct, and the family relationship.
In contending that the temporal hiatus of more than 11 years robbed the tendency evidence in LJM’s case of significant probative value, counsel relied heavily on McPhillamy. In that case, the appellant, a priest, was convicted at trial of six sexual offences against ‘A’, when A was an 11-year-old altar boy. The offences – which involved masturbation and oral sex – were alleged to have occurred on two separate occasions between November 1995 and March 1996, in the public toilets of a cathedral. At trial, ‘B’ and ‘C’ gave evidence of events in 1985 when they were aged 13. The appellant was the assistant housemaster at a college where B and C were homesick boarders. B gave evidence that on different occasions the appellant had touched his genitals and buttocks; and C gave evidence that on different occasions the appellant had touched his genitals (and gave evidence suggesting that the appellant had performed oral sex on him whilst he was asleep). The prosecution relied on the evidence of B and C as tendency evidence under s 97(1)(b) of the NSW equivalent of the Act.
All members of the High Court in McPhillamy held that the evidence of B and C did not possess significant probative value. In a joint judgment, Kiefel CJ, Bell, Keane and Nettle JJ observed:[61]
The scheme of the Evidence Act with respect to the admission of tendency evidence about a defendant adduced by the prosecution in a criminal proceeding is explained in Hughes v The Queen. Section 97(1) conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court’s assessment that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have ‘significant probative value’. Section 101(2) provides that, in a criminal proceeding, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant.
[61]McPhillamy, 17 [16] (footnote omitted).
Later in the joint judgment it was said:[62]
As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man’s sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of ‘B’ and ‘C’ was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to ‘B’’s and ‘C’’s evidence of events that occurred in 1985. As Meagher JA noted [in the judgment appealed from], there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against ‘A’.
[62]Ibid 19 [26]–[27] (footnote omitted; emphasis in original).

And finally:[63]
Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over ‘A’, an altar boy, when the two were at the Cathedral for services in 1995–1996. The evidence does not suggest that ‘A’ was vulnerable in the way that ‘B’ and ‘C’ were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with ‘A’’s account that the appellant followed him into a public toilet and molested him.
‘B’’s and ‘C’’s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against ‘A’ to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against ‘B’ and ‘C’ ten years before, in different circumstances, and without any evidence other than ‘A’’s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that ‘A’ alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. …
[63]Ibid 20 [31]–[32] (footnotes omitted).
As was made clear in McPhillamy, generally it is the tendency to act on the relevant sexual interest that gives tendency evidence in sexual cases its probative value. Where the tendency evidence relates to sexual misconduct with a person (or persons) other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. In the context of that case, given the very different nature of the sexual misconduct involving B and C compared to the alleged offending against A, B’s and C’s evidence established no more than that a decade before the events involving A the appellant had sexually offended against each of them. Proof of that misconduct was not capable of affecting the assessment of the likelihood that the appellant committed the offences against A to any significant extent, and rose no higher than to insinuate that, because the appellant had sexually offended against B and C a decade previously, in different circumstances, and without any evidence other than A’s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences involving A.
By way of contrast – and despite the 11-year hiatus – the circumstances of the alleged offending against LJM has common features which serves to link it to the alleged offending involving the other complainants. The evidence suggests that LJM, a teenage girl, had retired to bed, when the applicant entered the bedroom and – as he is alleged specifically to have done with MET and LMM – placed her hand on his penis before groping her sexually, notwithstanding the risk of detection presented by the presence of others in the house. Self-evidently, this alleged conduct bears a marked degree of similarity to the alleged misconduct involving SLS, SMBP, MET and LMM (on charge 8), which allegedly involves sexual interference with them in bed or on a couch after they had gone to bed, notwithstanding the presence of others in the house and the accompanying risk of detection.
In these circumstances, the evidence of LJM has significant probative value in proof of the charges involving the other complainants, and the evidence of the other complainants has significant probative value in proof of the charges involving LJM. Moreover, the probative value of the evidence clearly outweighs any prejudicial effect it may have. We reject the contentions that there is a risk that the jury will give disproportionate weight to the evidence by assuming that the behavioural pattern was constant. In that regard, the similarities in the applicant’s conduct speak for themselves. Furthermore, we do not consider that ‘the quasi-familial relationship between the applicant and LJM’ will provoke an ‘emotional impact’ in the jury of an order that is incapable of being acceptably ameliorated by judicial directions and warnings.
The evidence with respect to LMM stands in a slightly different position. Some of the conduct alleged in her case does not bear the features that are common to the misconduct alleged in the cases of the other complainants. Notwithstanding that this is so, we consider that evidence of the circumstances surrounding charge 8 render evidence of the conduct founding that charge admissible as tendency evidence in proof of the charges involving the other complainants. It was certainly open to the judge to so find. Hence, the conduct alleged in charge 8 occurred in LMM’s bedroom and in her bed, after she had retired. Evidence available to the prosecution suggests that it occurred when there was a risk of detection due to the occupancy of others in the house. Indeed, the evidence suggests that, shortly before this event, the applicant had been surprised in LMM’s bedroom by his mother after he had removed his clothes and was attempting to get into LMM’s bed.
It might be acknowledged that some of the other misconduct alleged in the case of LMM does not enjoy all of the features that links the circumstances of charge 8 to those of the misconduct alleged in the cases of the other complainants, and, to that extent, does not possess the same probative value as the other evidence. Nonetheless, we consider it to have significant probative value and to be admissible as tendency evidence. In our view it is capable of showing that the applicant had a sexual attraction to teenage girls upon which he was prepared to act, despite the risk of detection present because of the occupancy of the house by others. The potential for unfair prejudice or misuse – for example, by reason of the family connection – may be ameliorated by directions.
For these reasons, we consider that it was open to the judge to find that the impugned evidence was admissible pursuant to ss 97(1)(b) and 101(2) of the Act. That being so, it clearly was open to him to refuse severance. Once the judge determined that the evidence had significant probative value, and that the probative value of the evidence substantially outweighs any prejudicial effect it may have, there was little available to rebut the presumption in s 194(2) of the CPA.
As we have indicated, the applicant has failed to persuade us that it was not open to the judge to determine that the evidence relating to LMM was admissible as tendency evidence, and therefore that the charges relating to LMM should have been severed from those involving the other complainants. The matter was, however, finely balanced. Indeed, we consider it would also have been open to the judge to sever the LMM charges from those involving the other complainants. Had that occurred, the prosecution would have been justified in joining all of the charges relating to LMM in a single indictment for the purposes of a trial of those charges separately from those involving the other four complainants.

Conclusion

In light of the foregoing, leave to appeal against the interlocutory decisions should be refused.
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[2022] VSCA 130

30 June 2022