D v Director of Public Prosecutions (NSW) - Sydney

[2013] NSWSC 60

Supreme Court

New South Wales

Medium Neutral Citation:	D v Director of Public Prosecutions (NSW) - Sydney [2013] NSWSC 60
Hearing dates:	14 December 2012
Date of orders:	08 February 2013
Decision date:	08 February 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	1.Leave to appeal be granted. 2.The appeal be dismissed.
Catchwords:	APPEAL - appeal from Local Court -leave under section 53(3)(b) of the Crimes (Appeal and Review) Act 2001 - criminal charges – application for separate hearing of two charges - jurisdiction - failure to give adequate reasons for decision - tendency - coincidence - separate trial – leave to appeal granted - appeal dismissed EVIDENCE - tendency and coincidence
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Adamson v Ede [2009] NSWCA 379 DSJ v R; NS v R [2012] NSWCCA 9 Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 Kocer v R [2006] NSWCCA 328 O’Keefe v The Queen [2009] NSWCCA 121 Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 Phillips v R [2006] HCA 4; (2006) 225 CLR 303 R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 R v Dao [2011] NSWCCA 63 R v F [2002] NSWCCA 125 R v Harker [2004] NSWCCA 427 R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim A 308 R v Lockyer (1996) 89 A Crim R 457 R v Nassif [2004] NSWCCA 433 R v PWD [2010] NSWCCA 209 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v SK [2011] NSWCCA 292 R v Wright (1990) 90 Cr App R 312 Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392 Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247
Texts Cited:	Odgers, Uniform Evidence Law (9th ed, 2010) at p427
Category:	Principal judgment
Parties:	D (Plaintiff) Director of Public Prosecutions (NSW) (First Defendant) The Local Court of New South Wales (Second Defendant)
Representation:	Counsel: Mr S Russell (Plaintiff) Ms S Dowling (Defendant)
File Number(s):	2012/250878
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Citation: DPP v D Date of Decision: 17 July 2012 Before: Bradd LCM File Number(s): H46556511

Judgment

1. In July 2012, Bradd LCM refused an application brought under s 21(2) of the Criminal Procedure Act 1986 (NSW) for the separate hearing of two charges brought against the plaintiff under ss 61M(1) and (2) of the Crimes Act1900 (NSW). The charges concerned events which allegedly occurred in January 2007 and July 2009. His Honour also concluded that the evidence of the two complainants could be admitted as tendency and coincidence evidence under s 97 and s 98 of the Evidence Act 1995. By a further amended summons, filed in November 2012, the plaintiff seeks leave to appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act2001 (NSW). In the alternative, orders are sought under s 65 and s 69 of the Supreme Court Act1970 (NSW), as well as declarations under s 75 of that Act.

2. A non-publication order was made in relation to the name and identity of the complainants, given that they were juveniles and the charges have not been heard.

3. Count 1 relates to [A], the plaintiff’s niece. It is alleged that while the plaintiff and [A] were both attending a new year’s eve party with other family members, the plaintiff touched her with one hand on the outside of her clothing in the area of her vagina, after they went together to the laundry area of the house.

4. Count 2 relates to [B], who was working as a casual employee at a delicatessen owned by the plaintiff. It is alleged that [B] was working in the kitchen area when the plaintiff wrapped an apron around both of them and rubbed his groin against her bottom and lower back area.

5. The plaintiff’s application for separate hearings of the two charges was listed for hearing in July 2012. Without objection the Director of Public Prosecutions served tendency and coincidence notices at the hearing and the parties accepted that his Honour’s ruling on the notices would determine the separate trial issue. Statements made by the two complainants, the plaintiff and another witness were tendered and submissions advanced. His Honour gave his decision later that day.

6. The tendency notice stated that the tendency sought to be proved was the plaintiff’s ‘tendency to act in a particular way, namely to show sexual interest in girls aged 15 to 16 years’. The coincidence notice specified that the two events to which the notice related were the allegations made by the two complainants in their statements.

The matters pressed on appeal

7. The plaintiff complained that his Honour failed to properly consider and provide adequate reasons for the refusal of the application for a separate hearing of the two charges; as well as failing to consider whether the offences arose out of the same set of circumstances; and/or were part of a series of offences of the same or a similar character; or ought to be heard and determined separately in the interests of justice, within the meaning of s 29 of the Criminal Procedure Act1986 (NSW).

8. The plaintiff also complained that his Honour failed to properly consider and provide adequate reasons in relation to whether the probative value of the evidence substantially outweighed any prejudicial effect it may have on the plaintiff, in accordance with s 101(2) of the Evidence Act.

9. The Director raised the question of whether refusing an application for separate trials was an interlocutory order within the meaning of s 53(3)(b) of the Crimes (Appeal and Review) Act, observing that similar rulings have been held to constitute such an order, for the purpose of s 5F of the Criminal Appeal Act1912 (NSW). It also submitted that a decision on the admissibility of tendency and coincidence evidence was not an interlocutory order for the purpose of s 53(3)(b), but accepted that the decision underpinned the conclusion reached as to the refusal of the application for separate trials and that it was accordingly appropriate to examine the correctness of the admissibility question (see R v F [2002] NSWCCA 125).

Jurisdiction

10. The plaintiff’s application was made under s 21(2) of the Criminal Procedure Act, which provides:

"(2)    If of the opinion:

(a)    that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b)    that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment."

11. Section 29 was also relevant to the application, providing relevantly:

"29    When more than one offence may be heard at the same time

(1)    A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a)    the accused person and the prosecutor consent,

(b)    the offences arise out of the same set of circumstances,

(c)    the offences form or are part of a series of offences of the same or a similar character.

…

(3)    Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."

12. The appeal is brought under s 53(3)(b) of the Crimes (Appeal and Review) Act, which provides:

"(3)    Any person against whom:

…

(b)    an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court."

13. While his Honour gave a decision, he made no formal order in relation to the plaintiff’s separate trial application, concluding simply that it was ‘not granted’. The Director accepted that it was open to the Court to find that this was, ‘in a negative sense’, an interlocutory order. The Director also submitted however, that the refusal of the plaintiff’s application may properly have been characterised as a judgment rather than an order and that under s 53(3)(b) of the Crimes (Appeal and Review) Act, as opposed to s 5F of the Criminal Appeal Act , the lack of a formal order in a negative direction case might preclude a finding that there had been an order made, for the purpose of the section, with the result that the Court had no jurisdiction to entertain this appeal.

14. The term ‘interlocutory order’ is not defined in the Crimes (Appeal and Review) Act but it was considered in Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392. There it was observed at [10] - [15]:

"[10] It is noteworthy that the word “order” appears in s 53(3)(b) alone and not, as is often the case, as part of a broader formulation extending to “judgment or order”: cf Criminal Appeal Act 1912, s 5F. See R v Steffan (1993) 30 NSWLR 633 at 636–639.

[11]    As Samuels JA pointed out in Barton v Walker [1979] 2 NSWLR 740 at 747D: “The word ‘order’ … is … a word familiar enough to lawyers commonly found in the collocation ‘judgment or order’. The distinction between these two notions is reasonably clear, but the cases discriminating between them do not cast light on the precise meaning of ‘order’ itself.”

[12]    Furthermore, as King CJ said in Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127: “There is no completely satisfying definition of either ‘judgment’ or ‘order’ and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders.”

[13]    The word “order” is narrower in scope than the word “judgment”, although they may substantially overlap in a particular statutory framework. It may well be that a decision on a separate question of law will constitute a “judgment” in a particular statutory context. For present purposes it is not strictly necessary to distinguish between the two concepts.

[14]    Whether a decision or ruling constitutes a “judgment or order” turns on whether there is an operative judicial act: see Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309 at 314 [29]. There is no operative judicial act here.

[15]    Furthermore where, as in this case, a magistrate has done no more than answer a preliminary question of law, there has been, in my opinion, no order. As the joint judgment put it in Steffan (at 639), the determination does not “command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction”."

15. The Director also submitted that there should be a consistency of approach in appeals brought under s 5F of the Criminal Appeal Act and those brought under s 53(3)(b) of the Criminal Appeal Act, notwithstanding the different statutory language, s 5F giving a defendant a similar right of appeal, with leave, in relation to both an interlocutory order and a judgement. In s 5F appeals, the view taken has been that refusal of a separate trial application concerns a procedural matter which requires appellate restraint (see R v Dao [2011] NSWCA 63 at [69]).

16. In the circumstances which have arisen in this case, in my view it must be concluded that an interlocutory order has been made, albeit not formalised. The circumstances are not dissimilar to those considered in R v F, albeit in this case the evidentiary ruling was made prior to trial.

17. As Spigelman CJ discussed in R v Dao at [6], there is a need to determine questions such as this as a matter of substance, not form. In this case, the missing formality is the entry of an order dismissing the plaintiff’s separate trial application. The parties would even now be entitled to ask that such an order be entered. There is no question that the nature of such an order is interlocutory. It does not finally dispose of the parties' rights and could be revisited in the trial, in the event that circumstances changed (see Hall v Nominal defendant [1966] HCA 36; (1966) 117 CLR 423 at 439 - 40; R v Wright (1990) 90 Cr App R 312 at 338 - 40 and R vDao at [207]).

18. In the result it must be concluded that the Court does have jurisdiction to entertain this appeal.

19. The Director did not, however, concede that any views reached on this appeal in relation to the joinder application, could affect his Honour’s decision in relation to the tendency and coincidence evidence ruling, given that was an evidentiary ruling in respect of which no appeal lies under s 53(3)(b). It was accepted, nevertheless, that it was virtually inevitable that given the way in which the matter had been dealt with below, any expression of opinion on that ruling would be adhered to and a course consistent with that opinion taken at the trial.

20. The Director’s view of s 53 must, in my view, be accepted. Such an evidentiary ruling is not the subject of an appeal under the section. Nevertheless, in the circumstances which have arisen the ruling must be considered, in order that the appeal in relation to the refusal of the separate trial application, may be determined.

Leave under s 53(3)(b)

21. Leave under the section will not readily be given (see Dao v R at [208] -[209]). It is well settled that it is undesirable to fragment criminal proceedings by interlocutory appeals. Not only does the plaintiff have the right to appeal any conviction to both the District and Supreme Courts, but the Local Court itself can revisit the question of the separate hearing of the charges, if circumstances change. Ordinarily, in order to be granted leave under the section a plaintiff must establish that the circumstances warrant a trial being interrupted, there being substantial doubt about an interlocutory order made, which it is convenient to resolve before the trial proceeds (see Kocer v R [2006] NSWCCA 328 at [22] - [23]).

22. Like the circumstances considered in Dao v R, this is a case where the question of a separate trial hinged on an evidentiary ruling as to tendency and coincidence evidence. Like in that case, I have concluded that the leave sought should be granted. Here no trial date has been set. The ruling is critical to the decision made in relation to the joint trial and if in error and there is a conviction, will almost inevitably led to an appeal and retrial. The plaintiff has established that his Honour failed to give adequate reasons for his decision, particularly in relation to the balancing exercise which had to be undertaken under s 101 of the Evidence Act.

23. In the result I am satisfied that this is a case where the leave sought must be granted, as a matter of justice.

The decision appealed

24. His Honour began by noting the two counts to which the application under s 21(2) of the Criminal Procedure Act related, quoting the section and referring to s 29. He observed that the circumstances relevant to the application were that the offences arose out of the same sort of circumstances, or more likely, formed part of a series of offences of the same or a similar character. His Honour then noted the tendency and coincidence notices served, observing that:

"So the prosecution have served a notice of tendency evidence and coincidence evidence and the grounds of the tendency and coincidence evidence are that in both cases the alleged victim was in the age of under sixteen, being fifteen years of age, and in each case [D] had quasi-authority at the time.

So to amplify that aspect, [A] is the niece of [D] and [D] exercises the right to discipline [A], and in the case of [B], she was an employee of [D], as was Ms Goldhill, who is not an alleged victim in a charge but has given evidence as well."

25. His Honour then turned to consider whether the evidence was admissible as tendency evidence, by reference in s 97 of the Evidence Act. His Honour observed that the prosecution proposed to lead tendency evidence on the basis that the complainants were in the same age group and under the plaintiff’s quasi-authority at the time of the alleged offences.

26. His Honour referred to factors discussed in Odgers, Uniform Evidence Law (9th ed, 2010) at p 427, noting that the two occasions in question were separated by a time gap of more than 2 years. He found that there was a specificity as to the alleged conduct; a degree of similarity between the conduct and the circumstances in which it took place, observing that it was the degree of similarity in the circumstances which was the main fact relied on, the circumstances being the complainants’ ages and the plaintiff’s quasi-authority over them. His Honour also noted the evidence of the plaintiff leading one complainant to the isolation of a laundry and coming to the back room of the workplace, in the other.

27. His Honour found similarities in the plaintiff’s conduct of interacting with the complainants at a time when they were in an isolated place. He found that this tied in with the use of his quasi-authority over them, given their respective relationships.

28. His Honour took the view that it was not necessary that there be similarities in the location of the events, such as both events occurring in a social setting, or place of employment. He concluded that there were sufficient circumstances of similarity, despite the different settings in which the events occurred.

29. He concluded that the plaintiff had a tendency to act in a particular way, observing:

"As I have explained, the manner in which he used isolated circumstances to allegedly interfere with the two alleged victims and also have a particular state of mind which is exemplified by the alleged evidence and also in relation to the ages of both [A] and [B], so it would be open to a tribunal of fact to infer behaviour from that evidence and decide whether that is evidence of a tendency to act on a particular occasion."

30. His Honour then turned to consider ‘the other issue’, whether or not the evidence had significant probative value. He observed that probative value was defined, ‘as the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ and ‘significant’ as something regarded as been more than relevant, but less than substantial. Again, by reference to Odgers, Uniform Evidence Law (9th ed, 2010), he observed that ‘the point is the degree of impact on the probability of the existence of a fact in issue’.

31. His Honour also observed that the similarity of surrounding circumstances may be such as to lead to significant probative value, even if the conduct is not identical, referring to R v PWD [2010] NSWCCA 209, where the tendency rested on only one significant circumstance, vulnerability. He observed that ‘there is no requirement that tendency evidence be based on similarities’. His Honour concluded that the evidence was admissible as tendency evidence, having significant probative value.

32. As to coincidence, his Honour observed that:

"In relation to the coincidence rule, evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that having regard to any similarities in the events of the circumstances in which they occurred or any similarities in both the events in circumstances in which they occurred it is improbable the events occurred coincidentally unless the Court thinks that the evidence will either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence having significant probative value."

33. He took the view that while the events were not similar, in terms of the alleged acts, the circumstances were, given the ages of the complainants, the plaintiff’s quasi-authority over them and the manner in which they were allegedly taken advantage of. He concluded that the evidence would have significant probative value.

33. His Honour then referred to Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 472, where McHugh J observed:

"... the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term ``outweigh'’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh its prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence. In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice (cf. Lord Morris in Boardman, [1975] A.C., at p.439) require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.

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

35. In the result his Honour concluded that:

"It is my view that that test is made out in this case, so the application for the counts to be separated is not granted and I find that the circumstances set out in s 29 of the Criminal Procedure Act for the joinder is satisfied."

The evidence

36. In a statement made in March 2008, [A] gave an account of the events which occurred at the new year’s eve party which she attended with her parents, the plaintiff and his wife, son and girlfriend, at the home of another family member in January 2007. After midnight she went with her uncle to look for her cousin and his girlfriend. He took her to a laundry, where he touched her on the vagina over her underwear and dress, saying ‘I know you’ve been fingered’. She left and returned to her parents. She reported the assault to a friend on 7 January, but did not take it further, because she thought no one would believe her. She reported the assault to another cousin in the following October and then told her parents. She reported the assault to police in March 2008.

37. In a statement made by the plaintiff on 18 April 2011, he gave an account of his relationship with [A] and her family and of having in the past assumed full parental responsibility over her, including discipline, when she misbehaved. He said that prior to the new year’s eve party, he had heard that she had been behaving badly at parties and social functions, engaging in binge drinking and sexual encounters with older boys. He described [A] joining him at the party to look for his son and his girlfriend and his conversation with her, after they found them, when they were together on a 2nd floor landing, about her binge drinking and sexual encounters. He said that he threatened to tell her parents if she did not behave; that she defiantly reached out and grabbed his scotch and drank the glass, whereupon her smacked her on the backside in discipline, telling her in an angry voice that she was ‘a little shit’. He described the rest of the evening and his shock when he heard of [A]’s allegations in October, which he denied. He described discussions with other family members, including his brother, about her allegations and misbehaviour. He also described his involvement with other children in cricket coaching and the gourmet food store which he owned and operated between 2003 and 2010, where he managed school age children who he employed. He said that ‘Never once in the performance of any of these roles have I 'acted indecently or inappropriately'. He did not refer to [B]’s complaint.

38. In her statement of 22 July 2011, the former girlfriend of the plaintiff's son, gives an account of being employed by the plaintiff at his store in 2004, after school and during school holidays. She gives an account of the plaintiff making inappropriate sexually suggestive remarks to her when she was aged 16. She started dating the plaintiff's son in mid-2006. She attended the new year’s eve party and described the party and [A] leaving them with the plaintiff at the party. She did not see her again that evening. The plaintiff's son told her of [A]’s allegation against his father in early 2008. They broke up in mid-2008

39. In [B]’s September 2011 statement, she gives an account of being employed by the plaintiff to work at his store after school, in July 2009. She described the plaintiff coming into the back room where she was working, approaching her from behind and wrapping a work apron around both of them and rubbing his groin area up against her bottom and lower back region, in an action which she described as ‘dry humping’ for about 10 seconds. Afterwards he reduced her shifts and she stopped working there in August 2009. She was shocked and scared that people would not believe her. About two months later, she discussed it with a friend, who encouraged her to tell her parents. She told a teacher at school about four months later and then spoke to a counsellor, who spoke to her parents. She also explained the impact which the assault has had on her.

The cases advanced below

40. The parties’ cases were shortly put below. Identification was not in issue. Nor was there any suggestion of collusion by the complainants. Neither of the alleged assaults were witnessed. There is some evidence as to subsequent complaint in each case. The prosecution case was that the plaintiff manufactured circumstances in which he became alone with both complainants, when he assaulted them.

41. Without objection, the four statements relied on by the Director were tendered.

42. The factors on which the Director relied for both tendency and coincidence were the girls' ages of 15 or 16 and that they were under the plaintiff’s quasi-authority at the relevant time. The statement made by the plaintiff was relied on to establish that there was a quasi-authority position between him and his niece. It was argued that taking the proposed evidence at its highest, it was apparent that it had significant probative value and was of importance in establishing the facts in issue, its weight being a separate consideration.

43. Counsel for the plaintiff submitted that the Court’s power to order separate trials flowed from s 21 of the Criminal Procedure Act and that s 29 of that Act embodied the provisions made in s 97 and s 98 of the Evidence Act. He referred to the Crown’s concession that if the tendency/coincidence application failed, there was no basis upon which the separation of the hearings could be opposed.

44. It was submitted that the indictment and the statements showed that there were separate individuals, locations and places involved in the two alleged offences; that there were no issues of coincidence and that the material sought to be relied upon by the Director had no significant probative value. The evidence, it was submitted, would be argued at trial to be inadmissible under s 55 of the Evidence Act, as not rationally affecting the existence of the probability of a fact in issue in the proceedings.

45. It was argued that the significant hurdles posed by s 97 and s 101 could not be overcome. The evidence did not have significant probative value, nor could it establish tendency, it was submitted, given the differing times circumstances, relationships and acts involved. It could not establish a tendency to commit conduct in particular circumstances. Nor could it establish coincidence, having in mind the requirements of s 98 given the events and the circumstances in which they occurred.

46. To advance these arguments particular emphasis was placed on the dissimilarity of the alleged acts. Reference was made to Phillips v R [2006] HCA 4; (2006) 225 CLR 303, it being submitted that while a number of similar complaints may have increased the probability that one or more complainants was assaulted, that did not increase the possibility that the plaintiff had assaulted any particular complainant. In the absence of striking similarities, it could not be concluded that both complainants were telling the truth, one or more of them could be making false allegations.

47. It was not submitted that there would be any particular prejudicial effect flowing from the receipt of the evidence, but it was submitted that the circumstances warranted a severing of the hearing of the two charges.

The reasons given were not adequate

48. The requirement to give reasons for decisions is well settled and does not require great elaboration here. As discussed by McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 280:

"If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701, 713). In Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister's duty under the Tribunals and Inquiries Act 1958 (UK) to furnish “the reasons for the decision”, declared (at 410) that:

“… The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.”

49. In the case of evidentiary rulings which effectively dispose of an application such as this, the obligation is of the kind discussed in R v Harker [2004] NSWCCA 427, where it was observed as to a ruling in relation to s 137 of the Evidence Act, at [47]:

"... adequate reasons for the rejection of evidence will hardly be found in a simple statement that s137 applies or in a bare finding that the probative value of the evidence is outweighed by the unfairly prejudicial effect of the evidence. The reasons for judgment must make clear what the unfair prejudice is and why it is of such a kind that the evidence must be rejected despite its probative value."

50. Here the Director’s case was that his Honour’s reasons disclosed that he understood the statutory tests he was applying, albeit giving very, very succinct reasons for the views he reached, particularly in relation to the requirements of s 101 of the Evidence Act. His Honour’s approach reflected that the parties had not submitted that any particular prejudice would flow from refusal of the application or receipt of the tendency and coincidence evidence, as well as the short compass of the evidence over which the matters put in issue turned.

51. The cases put below certainly did not emphasise the requirements of the applicable statutory provisions, particularly in the way in which the plaintiff’s case was argued on appeal. The approach adopted below no doubt reflected that the charges concerned two events of short compass, matters which were to be dealt with summarily, rather than before a jury. That also explains why concerns about appropriate directions being given about the receipt of tendency and coincidence evidence and the use to which it could be put in the reasoning process, did not arise and were not addressed. Nor were the circumstances such that one complainant was making more serious allegations than the other. It was the dispute over the alleged similarities between the two alleged offences over which the parties joined issue and directed their submissions, it being common ground that his Honour’s conclusion as to tendency and coincidence evidence would resolve the question of whether or not there should be separate trials.

52. His Honour clearly responded to the cases which the parties had so argued, concluding that tendency and coincidence had been established and that accordingly, the trials should not be separated.

53. The arguments advanced turned entirely on whether or not the necessary tendency and coincidence could be established and whether or not the evidence sought to be relied on had the necessary probative value. No separate submissions were advanced as to what the interests of justice required in the event that the plaintiff did not succeed on the tendency/coincidence questions.

54. Given his Honour’s conclusions about the matters over which the parties had joined issue, it can be inferred that he did not consider that justice demanded that the cases be heard separately, even though he did not separately address that question, which arose under s 29(3) of the Criminal Procedure Act.

55. In the circumstances it seems to me that little complaint can be made about his Honour’s approach to the requirements of the Criminal Procedure Act. What was not, however, addressed by his Honour, was the question which arose under s 101 of the Evidence Act, namely the balancing exercise which that section requires and the necessity for giving reasons as to why that exercise led to the conclusion reached. In O’Keefe v R [2009] NSWCA 121, it was observed at [49] - [50] that:

"49 Simpson J pointed out in the passage quoted above that, as the trial judge is to undertake an evaluative assessment of the probative value of the evidence, minds might reasonably differ as to the outcome of that assessment. The same has been said of the application of s 137 of the Act. Both in respect of a determination made under s 101(2) and a determination made under s 137 a review of that determination by this Court can only be performed in accordance with the principles laid down in House v The King (1936) 55 CLR 499.

50    The applicant contends under Ground 3 above that the Judge failed to give sufficient reasons for determining to admit the evidence. Even if that assertion were made out, it would not have the effect of rendering the decision to admit the evidence nugatory. However, the reasons given by the trial judge may disclose error in the exercise of the discretionary judgment to admit the evidence under the House principles or the failure to give adequate reasons may mean that this Court could not rely upon the judge’s determination and would have to reach its own conclusion as to whether the evidence ought to have been admitted."

56. Even if the Director's submission that his Honour’s reference to R v Pfennig showed that his Honour did turn his mind to the requirements of s 101 of the Evidence Act be accepted, it was necessary for his Honour to give some explanation of why the balancing exercise which the section required be undertaken, favoured the conclusion which he reached. In this case, the failure to give any explanation of the conclusions reached in that regard, establishes the error about which the plaintiff complains on appeal as to the inadequacy of the reasons given.

Tendency

57. The starting point is s 55(1) of the Evidence Act, which provides that evidence that is relevant in a proceeding ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. Such evidence is admissible, unless otherwise provided (s 56). The admissibility of tendency evidence is governed by s 97 of the Evidence Act, which provides:

"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:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(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."

58. ‘Significant’ has been held to mean ‘important’ or ‘of consequence’ (see R v Lockyer (1996) 89 A Crim R 457 at 459 per Hunt CJ at CL).

59. The tendency here in question was ‘a tendency to act in a particular way, namely to show sexual interest in girls aged 15 to 16 years’.

60. In R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492, Simpson J explained at [22] - [23]:

"[22]    “Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.

[23] Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).”

61. As discussed in the authorities, the questions raised for determination by the section involve value judgments. Tendency evidence is led as evidence tending to prove the guilt of an accused. Typically a jury is asked to reason that because the accused acted in a particular way on some other occasion or occasions, he or she is more likely to have acted in the same way on another occasion.

62. The exercise required under the section is an evaluative and predictive one which must be undertaken in a context where ‘probative value’ is defined in the Dictionary to the Evidence Act as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The facts in issue in each case appear to be firstly whether the plaintiff conducted himself as alleged and secondly, whether he acted with sexual interest.

63. In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, Spigelman CJ observed in relation to the definition at [61] - [62]:

“[61]    In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, ‘the extent to which the evidence could rationally affect the assessment …’. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has ‘probative value’, as defined, if it is capable of supporting a verdict of guilty.

[62]    This conclusion is reinforced by the test that evidence must ‘rationally affect’ the assessment. As Gaudron J emphasised in [Adam v R [2001] HCA 57; 207 CLR 96], a ‘test’ of ‘rationality’ also directs attention to capability rather than weight.”

64. In R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim A 308 (followed in DSJ v R; NS v R [2012] NSWCCA 9, see at [66] - [77]), Simpson J observed:

"[33] It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind: —

(i)    the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury);

(ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence “to be adduced”, and implicitly by the use of the subjunctive “would not” in s 97(1)(b).

(iii)    whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of “probative value” contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (ie is capable of rationally affecting) the probability of the existence of a fact in issue;

(iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, ie if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible."

65. In R v PWD it was observed at [64] - [65], however:

"64    In Ford Campbell JA (Howie and Rothman JJ agreeing) at [38], identified as an error in the trial judge’s reasoning the judge’s apparent view that tendency evidence must itself show a tendency to commit acts that are closely similar to those constituting the particular crime with which the accused is charged. In that case, the accused was charged with sexual intercourse without consent against an 18 year old woman who was a guest in the accused’s home. The evidence of two other women he had indecently assaulted while they were guests in his home was held to have significant probative value. The respondent in that case argued that there was nothing unusual about the allegations by the women of sexual interference after a social event involving the consumption of a considerable amount of alcohol. That argument was rejected (Ford at [126]). The lack of striking pattern or similarity between the charged incident and the other two incidents was held not to be determinative. Campbell JA observed, at [38]:

“The second flaw is the judge’s apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to section 97(1), is ‘a tendency to act in a particular way’.” (emphasis added).

65    Later, at [125], his Honour stated:

“In my view there is no need for there to be a ‘striking pattern of similarity between the incidents’. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test.”

66. As Simpson J discussed in R v Dao at [182] - [187], assessment of the probative value of any of the evidence relied on to establish this tendency did not depend on any assessment of the credibility or reliability of the evidence. That is a matter to be determined, in the usual way, at the trial.

67. His Honour’s conclusion that the evidence here in issue had significant probative value seems to me to have been well open. The conduct relied on to establish the alleged tendency was different and did occur some years apart. There was, however, no glaring difference in its seriousness: in one case touching his young niece’s vagina area on the outside of her clothing and in the other, wrapping an apron around both he and his young employee and pressing his groin against her back and bottom. That conduct did suggest that he had a sexual interest in both complainants and that he acted on that interest opportunistically, when alone with them.

68. In both cases the alleged conduct occurred while the plaintiff was alone with the young complainant, with whom he had an ongoing relationship. The plaintiff complained on appeal that there was no basis for the view which his Honour reached as to some link between the two alleged assaults flowing from the plaintiff’s relationship with the two complainants, particularly given that his niece did not consider that he had any authority over her. That was submitted to be a point of distinction to the authority he had over the other complainant, as her employer.

69. Contrary to the plaintiff's case, the evidence did establish the nature of the authority he considered that he had over his niece and the circumstances in which he exercised that authority, by hitting her. The plaintiff said in his statement that he had in the past exercised the authority of a parent over her and that he had hit her on the backside, in exercising discipline over her misbehaviour on the night of the alleged offence. In their statements both the plaintiff and his niece refer to contact between them during a discussion about her sexual behaviour, albeit in quite different contexts and using quite different words. Whose evidence will be preferred, need not be determined at this stage.

70. In his statement, the plaintiff makes no reference to the allegations made against him by [B], but says that he had never acted indecently or inappropriately to any of his employees. That account of his behaviour is inconsistent with that given by [B] and his son’s former girlfriend. Again, which evidence will be preferred, cannot be determined at this point. It is the question of whether the evidence is capable of rationally affecting the assessment of the probability of the existence of a fact in issue, which had to be assessed. His Honour’s view that it could was clearly open.

71. The plaintiff also complained that it was his Honour who considered the locations in which the two alleged assaults occurred, as being a relevant similarity and the parties did not address this. It was submitted that in O’Keefe v R [2009] NSWCCA 121, the view was taken that a tendency to assault females in secluded locations did not have significant probative value (see at [65]) and so that this was a factor which his Honour ought not to have considered, at least without giving the parties an opportunity to address him.

72. These criticisms do not seem warranted to me. The evidence which had to be considered fell within very short compass. This was not a circumstantial case like O’Keefe v R, where identity of the assailant was in issue. On the cases which the parties advanced, his Honour clearly had to consider the circumstances in which the alleged assaults occurred. In both cases the allegation was that the plaintiff assaulted a young complainant with whom he had an ongoing relationship, when alone with them. The parties addressed him on those circumstances. The view that there were relevant similarities in the circumstances was open. There was no denial of procedural fairness in his Honour’s approach to that matter.

73. The nature of the opportunity to be heard which the rules of natural justice require is that discussed in Adamson v Ede [2009] NSWCA 379, where it was observed at [57] - [59]:

"57    That it is a court, rather than some other sort of decision-maker, that is required to grant natural justice can affect what, in the circumstances of a particular case, natural justice requires. Established rules of procedure of courts can affect the content of natural justice as applied in the courts. In J v Lieschke (1987) 162 CLR 447 at 456 Brennan J (with whom other members of the court agreed) recognised that the audi alteram partem principle applied to courts, but continued:

“That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings.”

58    This has led the requirement of natural justice in court proceedings to sometimes be put as an entitlement to a fair trial. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, the joint judgment of Mason, Wilson, Brennan, Deane and Dawson JJ approved of the statement of the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67 that:

“There is one thing to which everyone … is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

59    Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220):

“… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers’ Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358.” (original emphasis)"

74. The plaintiff was given a fair opportunity to meet the case put against him.

75. His Honour did not err in weighing up the competing considerations and reaching the view that the evidence could have significant probative value. The relevant considerations were taken into account. His Honour did not mistake the facts, misapply principle or take into account irrelevant or extraneous matters. The conclusion reached was open. The evidence was clearly capable of rationally affecting the assessment of the probability of the plaintiff having had a sexual interest in engaging in the conduct alleged. If accepted beyond reasonable doubt, the evidence rendered it more probable that the plaintiff had acted in the way alleged.

76. Section 101 raises an additional barrier or hurdle to admissibility, namely that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the plaintiff. It provides:

"101   Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)    Tendency evidence about a defendant, or coincidence 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 it may have on the defendant.

(3)    This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4)    This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. "

77. It seems to me that the probative value of the evidence in each case clearly outweighs any prejudicial effect it may have on the plaintiff. While it may be accepted that there will be some prejudicial effect in receipt of the evidence, that it is unfair or substantial prejudice is not apparent.

78. The unfair prejudice suggested for the plaintiff on appeal was the risk that the evidence would provide artificial corroboration and would be given undue weight or used in some unfair way, by the magistrate hearing the case, so as to provoke an irrational, emotional or illogical response of the kind discussed in R v SK [2011] NSWCCA 292 at [33] - [35], for example. There it was observed:

"33   Further, in the written submissions, the applicant's counsel referred to R v Watkins (2005) 153 A Crim R 434, a case in which criminal convictions for fraud, following pleas of guilty, ten years before a trial for similar offences, were held inadmissible by this Court, on the basis that the jury would be diverted from a proper consideration of the accused's defence and simply assume his guilt.

34   Notwithstanding these submissions, the applicant did not identify how the risk of misuse of the evidence by the jury could arise. It is no answer to make general statements about the arousal of prejudice. A jury's antipathy towards an accused, assuming that the accused is guilty and failing to properly consider a defence are all potential by-products of tendency evidence. In that sense, the nature of tendency evidence is inherently prejudicial, hence the need for strong directions, including the requirement that the tendency evidence be proved beyond reasonable doubt. It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse.

35 The pre Evidence Act cases cited by the applicant (Sutton, De Jesus and Hoch) are of no assistance to the applicant on this issue. The law in this State is as discussed in DJV v R [2008] NSWCCA 272. The facts in Watkins amply demonstrate why the proposed tendency evidence in that case was overwhelmingly prejudicial.

36 I agree with the Judge that the applicant failed to identify any specific prejudice for the purposes of determining the test under s101. As I have already noted, on the hearing of the application, the parties acknowledged that the admissibility of the tendency evidence dictated the fate of the separate trial application."

79. In this case, I cannot see that there is a real risk that the evidence of the alleged tendency will be given more weight than it deserves at any trial. It is relevant in this regard to take account of the fact that the evidence will be assessed by a magistrate, not by a jury. That clearly significantly reduces the risk of any misuse of the evidence, illogical or emotional reasoning, or other unfair prejudice, in my view to the point where it cannot sensibly be concluded that the prejudicial effect of the evidence substantially outweighs its probative value. A magistrate assessing evidence such as this is in quite a different position to that of a jury, being unlikely to engage in impermissible reasoning of the kind referred to in the authorities relied on for the plaintiff. A magistrate is well able to approach the task of objectively analysing the evidence, and which evidence ought to be accepted or which rejected, without engaging in illogically or impermissibly emotional reasoning.

80. In the result this aspect of the appeal may not be upheld.

Coincidence

81. As discussed in DSJ v R; NS v R [2012] NSWCCA 9 at [55], ‘s98, in its terms, poses this simple question: whether the evidence being considered is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue.’ The section provides:

"98 The coincidence rule

(1)    Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(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."

82. Coincidence evidence is defined in the Dictionary to the Evidence Act to mean ‘evidence of a kind referred to in s 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.’ As discussed in R v Nassif [2004] NSWCCA 433 at [51], tendency and coincidence evidence are not necessarily interlinked, and there will be cases where evidence of tendency will be admissible, when evidence of coincidence is not; and at [52], in the case of coincidence evidence, the more numerous the items of similarity, and the more precise, the stronger the inference of improbability and the more likely the admission of the evidence.

83. In R v PWD it was observed:

"79 The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour. By contrast, coincidence evidence is based upon similarities. Section 98 provides in terms that two or more events occurring is not admissible to prove that a person did a particular act, on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless, the evidence has significant probative value."

84. Section 101 also applies.

85. The 'events' here in question are those which [A] and [B] outlined in their statements. Like the circumstances which arose for consideration in DSJ v R; NS v R, those events were sought to be relied on by the Director not only to prove the two charges, but also in order to defeat the application for separate trials. This was not a case, however, where the plaintiff urged another possible explanation for the events relied on, inconsistent with guilt. It was rather the question of whether there were sufficient similarities between the two events and the circumstances in which they occurred to establish coincidence which was in issue. Such similarity must be such as to lead to the conclusion that they have the significant capacity to establish the fact or facts in issue.

86. His Honour’s conclusions rested on the similarities which he found in the alleged conduct and the circumstances in which it occurred. They are those earlier referred to: the ages of the complainants; the plaintiff's relationship with them; his sexual interest in them; and how he acted on that interest when alone with them. His Honour came to the view that the similarities were such that it was improbable that the events occurred coincidentally and that the evidence had significant probative value.

87. Again, while no doubt there are other cases where coincidence evidence is stronger than that relied on in this case, I consider that there is a sound basis in the evidence for these conclusions, given these similarities. The evidence did provide a basis upon which his Honour could come to the conclusion that it had significant probative value, that is, the evidence could rationally affect the assessment of the probability of the existence of the facts in issue.

84. In terms of s 101, while receipt of the evidence is unquestionably prejudicial, its prejudicial effect cannot be considered to substantially outweigh its probative value, for the reasons I have already explained, in relation to the tendency evidence.

Separate trial

89. A decision as to whether or not to grant a separate trial is a discretionary one, not lightly to be interfered with on appeal, particularly where the appeal rests on a complaint about an evidentiary ruling. As I have discussed, this appeal is in effect an appeal from such an evidentiary ruling, a ruling which does not appear to have been in error, notwithstanding the failures identified, particularly in relation to the requirements of s 101 of the Evidence Act.

90. In my view the circumstances which came to be considered were such that his Honour was entitled to take the view that the offences formed a part of a series of offences of the same or similar character, as s 29 of the Criminal Procedure Act contemplates. The plaintiff did not put this possibility in issue below, consistently with that section itself making clear that such a series of offences may be comprised by ‘two or more offences’. It was the character of the alleged offences and their similarities which was in issue.

91. The alleged offences involved two young female complainants of similar age; conduct of similar seriousness, touching the complainants inappropriately on their clothing; and occurred in similar circumstances, namely where the plaintiff took the opportunity to pursue his sexual interest in the complainants, over whom he had certain authority, by taking advantage of finding himself alone with them. Contrary to the case pressed for the plaintiff, that the age of the complainants is an element of the offences with which he has been charged, is not a reason for not considering the complainants’ ages, in determining the questions which his Honour here had to resolve as to the application for separate trials.

92. The plaintiff had a particular relationship with each complainant, which enabled him to exercise certain authority over them. In the case of his niece, it was in his own statement that he said he had exercised the role of a parent in relation to her discipline in the past and that was why he touched her on the occasion in question. That evidence was admitted without objection and was thus something on which the Director was entitled to rely in the case advanced and a matter which his Honour had to consider, taking the evidence at its highest. The conclusion which his Honour reached was open on the evidence and was relevant to the view that he plainly came to, that the necessary similarity in the character of the two alleged offences was present.

93. It has not been established that the interests of justice required that these two summary charges be heard separately. In the result it follows that while leave to appeal must be granted, the appeal must be dismissed.

Orders

94. For the reasons given, I order that:

1.   Leave to appeal be granted.

2.   The appeal be dismissed.

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Decision last updated: 20 February 2015