Director of Public Prosecutions v Jacobs (a pseudonym)

[2024] VCC 878

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS
v
MICHAEL JACOBS (A PSEUDONYM)[1]
JUDGE:	His Honour Judge Trapnell
WHERE HELD:	Melbourne
DATE OF HEARING:	8–9 November 2023
DATE OF RULING:	14 June 2024
CASE MAY BE CITED AS:	DPP v Jacobs (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 878

[1]    In order not to prejudice the administration of justice, a pseudonym has been used in place of the name of the accused and the reasons have been prepared in a form which omits identifying details.

RULING
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Subject:CRIMINAL LAW – EVIDENCE

Catchwords:              Admissibility – Tendency evidence – Multiple complainants – Sexual penetration of a child under 12 – Sexual assault of a child under 16 – Cross-admissibility – Whether tendency has significant probative value – Complainants’ relationship to accused establishing common link – General circumstances of alleged offending conduct establishing common link – Acts reveal ongoing sexual interest and acting on sexual interest – Whether probative value substantially outweighs prejudicial effect – Risk manageable through proper direction of jury – Whether severance of complainants appropriate

Legislation Cited:      Evidence Act 2008

Cases Cited:R v Bauer (2018) 266 CLR 56 – Hughes v The Queen (2017) 263 CLR 228 – TL v The King (2022) 275 CLR 83 – Harris v The King [2024] VSCA 43 – CGL v DPP  (2010) 24 VR 486

Ruling:  Tendency evidence admissible – Application for severance refused

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Piggott	Ms A Hogan, Solicitor for Public Prosecutions
For the Defendant	Ms T Skvortsova	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

Introduction

1The accused is charged on indictment with alleged offences involving three complainants, AB,[2] CD and EF. In relation to AB, he is charged with five charges of sexual penetration of a child under the age of 12 (Charges 1 to 5)[3] and two charges of sexual assault of a child under the age of 16 (Charges 6 and 7).[4] In relation to CD, he is charged with five charges of sexual assault of a child under the age of 16 (Charges 8 to 12).[5] In relation to EF, he is charged with two charges of sexual assault of a child under the age of 16 (Charges 13 and 14).[6]

[2]     To protect the identity of the alleged victims, non-identifying letters have been used for the complainants, their mothers and other family members.

[3] Contrary to s 49A(1) of the Crimes Act 1958 (‘CA’), as amended by the Crimes Amendment (Sexual Offences) Act 2016 (‘CA(SA)A’).

[4] Contrary to s 49D(1) of the CA, as amended by the CA(SA)A.

[5] Contrary to s 49D(1) of the CA, as amended by the CA(SA)A.

[6] Contrary to s 49D(1) of the CA, as amended by the CA(SA)A.

2Pursuant to s 199 of the Criminal Procedure Act 2009 (‘CPA’), the parties seek rulings in respect of a number of evidentiary matters. In particular, the accused opposes the prosecution’s application to lead tendency evidence as between the allegations involving each complainant, and the accused contends that the indictment charges should be severed, so that the trial of the charges involving AB proceeds separately from the trial of the charges involving CD and EF. The accused accepts that the charges involving CD and EF can be tried together.

Prosecution case

3According to the summary of prosecution opening for trial, dated 13 February 2023, the accused allegedly sexually assaulted AB between 1 April 2018 and 30 June 2021 (‘AB allegations’). The accused was a good friend of AB’s mother (‘DM’) and engaged in a sexual relationship with her for part of the time they knew each other. After the sexual relationship ended, the accused remained in contact with AB. He often visited her home in Sunnyside[7] (‘the Sunnyside house’) and she would also visit his home in Lakeview.[8]

[7]     A pseudonym for the true location.

[8]     A pseudonym for the true location.

4At the time of the alleged offences, AB was aged between about seven to nine years.

5It is also alleged that the accused sexually assaulted CD and EF between 1 April 2018 and 31 July 2021 (‘CD and EF allegations’). The accused was formerly the uncle of these complainants, having engaged in a long-term relationship with their aunt (‘MT’). CD and EF are first cousins.

6CD began visiting the accused’s home when she was a toddler, often with her brother SD. At the time of the alleged offending CD was about seven years old

7Most of the times, when visiting the accused, EF was accompanied by MT, but she was often the only child in the house and would sometimes be left alone with him. At the time of the alleged offending EF was six years old.

AB allegations

8Charges 1 to 7 concern AB and are alleged to have occurred between 1 April 2018 and 30 June 2021.

9The prosecution alleges the accused inserted his finger in AB’s vagina at the Sunnyside house (Charge 1). Charge 1 is the first occasion AB can recall.

10It is further alleged the accused played ‘chasey’ with AB and inserted his finger in her vagina (Charge 2). This charged act is particularised as occurring in the kitchen of the Sunnyside house.

11On one occasion when AB stayed at the accused’s house with her sister, RB, the accused played a game of ‘hide and seek’ with the children. When he located AB under his bed, the accused allegedly placed her on the bed and inserted his finger in her vagina (Charge 3). AB shouted for her sister and the accused allegedly told her to ‘shut up’ and said ‘I just want to do this, let me do this’.

12Charge 4 is alleged to have taken place at the accused’s house when AB was visiting. On this occasion AB was sitting on the bed in the spare room of the house, getting dressed into her pyjamas. The prosecution alleges the accused walked into the room and said, ‘you’re hot’, before he lifted up AB’s legs and inserted his tongue in her vagina. AB told him to stop and the accused left.

13During another visit at the accused’s house, AB was taking a bath. The accused allegedly undressed and got into the bath with her. He told AB that she was ‘very beautiful’ and pulled her legs towards him to move her closer. It is alleged that the accused then inserted his penis into the AB’s vagina (Charge 5). The penetration lasted for a few minutes before he got up and laid the complainant down. The complainant states that he crouched over her and ‘put this milk stuff on me … it was from his peewee’. He then told her to have a shower and left the room.

14Charge 6 is alleged to have occurred near the front door of the Sunnyside house as AB said goodbye to the accused. On this occasion, whilst hugging AB, the accused allegedly kissed her mouth and inserted his tongue.

15Charge 7 relates to an occasion in the driveway of the Sunnyside house when AB was saying goodbye to the accused. It is alleged the accused placed his mouth on AB’s mouth and used his tongue to open her mouth.

CD and EF allegations

16Charges 8 to 12 concern CD and are alleged to have occurred between 1 April 2018 and 31 July 2021.

17Charge 8 relates to an occasion at the accused’s house when CD was sitting on a sofa in the lounge room playing video games. It is alleged the accused placed his hand down CD’s pants and underwear and touched her bottom. She moved to another sofa. The accused sat next to her and allegedly touched her bottom again.

18Charge 9 is also alleged to have occurred on the sofa in the lounge room of the accused’s house. While CD was playing on an iPad the accused sat next to her and allegedly placed his hand in her leggings. It is further alleged the accused touched CD’s vagina under her clothing.

19Charge 10 is alleged to have occurred during a family Christmas dinner in the dining area of CD’s grandmother’s house. CD was playing a game while the rest of the family was outside. The prosecution alleges the accused sat next to CD, placed his hands in her underwear and felt her bottom. The accused allegedly held his hand there for about a minute.

20Charge 11 is alleged to have occurred when CD was lying down in the spare bedroom of the accused’s house. The accused entered the room and laid down next to her in the bed. The accused allegedly touched CD’s chest area, vagina and bottom with his hand under her clothing. It is further alleged the accused began to take off CD’s pants and underwear but left the room when she told him to stop.

21Charge 12 relates to an offence allegedly committed in the front lounge room of the accused’s house. The accused and CD were playing together while the accused’s wife was in the room. At one point, it is alleged the accused lifted CD up in the air and had one hand placed on her groin. CD asked him to put her down on the sofa and once he did this she began to play videogames. When the accused’s wife left the room, the accused moved closer to CD and allegedly placed his hand under her clothing. It is alleged the accused touched her vagina and chest area. CD said to the accused, ‘Stop. I don’t like it and I don’t feel comfortable. Can you please not do that to me ever again’. The accused responded by saying ‘sorry’.

22Charges 13 and 14 concern EF and are alleged to have occurred between 1 January 2021 and 21 July 2021.

23Charge 13 relates to an alleged occasion when EF was sitting on the sofa in the accused’s lounge room. It is alleged the accused pulled down EF’s pants and underwear and rubbed his hand on her vagina for several seconds. The accused did not say anything and EF asked him to stop.

24Charge 14 is alleged to have occurred in the accused’s bedroom at his house. It is alleged the accused laid EF on her back, lifted her legs and removed her underwear. He rubbed her vagina with his hand for several seconds. She told him to stop.

Defence response

25In the defence response, dated 22 August 2023, the accused denies all of the charged and uncharged conduct alleged by each of the complainants.

Tendency notice

26A tendency notice, dated 9 November 2023, was served pursuant to s 97(1)(a) of the Evidence Act 2008 (‘EA’). It states the prosecution seeks to rely upon the tendency of the accused to have a particular state of mind, namely:

(a)   A sexual interest in young female children in his care, aged between 6 and 10 years old;

(b)   A willingness to act on this interest;

and to act in a particular way, namely:

(c)   To exploit his position of trust as a family member or close friend to enable him access to the complainant and to act on that interest without detection; and

(d)   To exploit situations where playing games with children to act on that interest without detection.

27The tendency notice stipulates these factors are said to take place in the following circumstances:

(a)   Where the accused was entrusted to be alone with the complainants;

(b)   In the presence of other adults and children in the house;

(c)   In a brazen manner which entailed a high risk of detection;

(d)   In the course of playing games with children; and

(e)   The accused would gain the complainants’ trust through buying them toys and gifts.

28The evidence relied upon to establish the tendency is set out in ‘Table A’ of the tendency notice. The table contains 14 items which summarise the evidence of AB, CD and EF relied upon to support the asserted tendency. The summary is supported by references to the complainants’ VAREs contained in the depositions.

29Finally, the tendency notice asserts the issue to which the tendency reasoning applies is whether each of the charged acts occurred.

Prosecution submissions

30At the pre-trial hearing, the prosecutor pointed out that no uncharged acts were included in the tendency notice. However, she advised a new tendency notice may be filed closer to the trial date, which may include other uncharged conduct. For the purposes of this ruling, I will only have regard to the charged acts on the indictment, as set out in the tendency notice.

31The prosecution seeks to rely on all tendency evidence as being cross-admissible in relation to all complainants and all charges.

32In the summary of prosecution submissions: tendency, dated 7 November 2023 (‘prosecution tendency evidence submissions’), the prosecutor submitted there are common features which gives the alleged tendency significant probative value. These include:

(a)   Each child is of a similar age.

(b)   The accused had a father-like or ‘loco parentis’ role in the complainants’ lives. At the relevant time, he was in a domestic relationship with CD’s and EF’s aunt, and AB was the daughter of a close female friend with whom the accused previously had been in a sexual relationship. These adult relationships facilitated his contact with the complainants. That contact was sometimes in the presence of other adults or the complaints’ siblings, but also when the accused was alone with a complaint.

(c)   The complainants were ‘groomed’ by the provision of gifts, food and outings which enabled the accused to gain unsupervised physical contact with them.

(d)   Close physical interaction between the accused and the complainants, which arose from the adult relationships, allowed the alleged offending to occur without suspicion and under the guise of innocent interactions.

33The prosecutor submitted, the relationship between the accused and each complainant, and how that relationship allowed the accused to commit the sexual acts against each complainant, is a significant link between all the alleged offences. The accused was a trusted family friend or ‘relative’ and there were similarities in the nature of the relationships between the accused and each complainant. The prosecutor submitted, the trust the complainants had in the accused enabled him to gain physical access to the complainants in situations where his actions may otherwise have been questioned or considered to be out of the ordinary. For example, the accused often spent time with the complainants at busy family functions, while playing games, at sleepovers and in rooms unsupervised.

34The prosecutor further submitted, by reason of the adult relationships and the accused’s ability to interact in a ‘seemingly normal way’, the majority of the offending occurred in the presence of, or nearby, other adults or children. The prosecutor exemplified the fact on one occasion AB called out for her sister, who was in the house, and this caused the accused to stop the alleged offending. The accused also allegedly sat next to CD at a function and touched her while other family members were present in other rooms. The accused also allegedly offended against EF in the lounge room. The prosecutor submitted, there was a ‘high’ risk of detection in relation to each complainant.

35The prosecutor submitted the surrounding circumstances need to be taken into account. Examples included, the accused giving the complainants gifts, such as McDonald’s food, mobile phone credits, toys, coloured pencils and collectible horses. The prosecution concedes not all of the gifts bought by the accused have the same character, but generally this conduct is linked to building a close relationship between the accused and the complainants.

36The prosecution emphasised this behaviour was cultivated within specific relationships with the child complainants, who were similar in age, during an overlapping period of time.

37In relation to severance, the prosecutor submitted that even if the Court ruled the evidence sought to be used as tendency is inadmissible and not cross- admissible, the presumption in s 194 of the CPA is not rebutted. The jury could still be provided with appropriate directions on the use of the evidence.

Defence submissions

38Defence counsel submitted that any commonality that might exist between the complainants is not sufficient to satisfy the test provided for in s 97 of the EA.

39In relation to internal cross-admissibility, defence counsel submitted this was an issue in AB’s case, but not for the other two complainants. Defence counsel submitted the evidence in relation to Charges 6 and 7 (‘the kissing incidents’) could not be relied upon as tendency evidence in relation to Charges 1 to 5, and vice versa.

40Defence counsel submitted that because the tendency notice confines the tendency reasoning to whether the relevant acts occurred, the nature of the alleged conduct in Charges 6 and 7 compared with the nature of the alleged conduct in Charges 1 to 5 is too dissimilar to be admissible as tendency evidence.

41Defence counsel submitted the tendency notice impermissibly seeks to ‘cover the field’. She submitted the notice seeks to include all of the conduct the accused is alleged to have engaged in, both when he had been entrusted with the care of the complainants as well as when he was in the presence of other adults or children, and that the accused has a tendency to engage in the alleged conduct, despite any differences in the circumstances of each complainant.

42Defence counsel primarily relied on R v Bauer (‘Bauer’)[9] to argue that I need to be satisfied that the common features identified by the prosecution in paragraph 2.2 of the tendency notice are borne out of the evidence detailed in Table A. Counsel drew particular attention to paragraph 2.2(b) of the tendency notice, submitting that the alleged offending against each complainant can be neatly distinguished, as the accused was not alone with each of them when the acts are said to have occurred. For example, the alleged offending against CD and EF occurred while others were present. Defence counsel submitted, these circumstances are very different from the alleged offending against AB, who was allowed to stay overnight by herself at the accused’s house.

[9] (2018) 266 CLR 56 (‘Bauer’) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ).

43Moreover, the level of trust given to the accused differs between complainants. AB was able to visit the accused’s house alone, whereas CD and EF, on their evidence, describe their attendances at the house as sporadic.

44Defence counsel submitted the issue of other people being present in the house during the offending is also not a common thread within the charges relating to AB specifically. If there was nobody else present in the home, there is no risk of detection by an adult or child.

45Defence counsel accepted that the ages of the complainants and the opportunity or access the accused would have had to offend were similar between the complainants. It was also accepted that the allegations are linked because the complainants are all female and related to adults closely associated with the accused. However, save for those factors, defence counsel submitted there is no common feature about the offending going beyond what is generally to be expected in offences of this nature. In defence counsel’s submission, the alleged facts concerning each complainant are different.

46Turning to s 101 of the EA, defence counsel submitted the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on the accused, in that, the jury would likely give the evidence too much weight.

47Regarding severance of the indictment, defence counsel submitted that, if the tendency evidence was not cross-admissible then the charges involving CD and EF, on the one hand, and the charges involving AB, on the other, should proceed as separate trials.

48Defence counsel submitted if there are multiple complainants whose evidence is inadmissible in the trials relating to other complainants, it may be difficult for a trial judge to give adequate directions to the jury so as to avoid prejudice to the accused.[10] It was submitted that severance of the two sets of charges is desirable and practicable to ensure the accused receives a fair trial because:

(a)   The offences are of different nature and seriousness;

(b)   There is no factual overlap between the two sets of charges; and

(c)   The jury will need to consider different issues in dispute in respect of some of the charges.

[10]    See R v Papamitrou (2004) 7 VR 375, 388 (Winneke P, Ormiston and Buchanan JJA agreeing).

Legal principles

49The admission of tendency evidence is governed by s 97 of the EA. The EA restricts the admission of tendency evidence unless certain legislative criteria are met. Relevantly, s 97(1) of the EA 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 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.

50Section 101(2) of the EA relevantly provides:

Tendency 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.

51Tendency is a form of circumstantial evidence that invites inferential reasoning. The finder of fact is asked to reason or to infer that a person who is shown to have a tendency to act in a particular way, or to have a particular state of mind, will behave in conformity with that tendency on another occasion or occasions. This makes it more probable that the person acted in that similar way on the charged occasion in issue.

52To be admitted, tendency evidence requires the Court to determine that the evidence, taken by itself or in combination with other evidence adduced by the party seeking to adduce it, has significant probative value.

53The term ‘probative value’ is defined in the Dictionary of the EA[11] to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue’.

[11]    See Evidence Act 2008 (‘EA’) s 3.

54In Hughes v The Queen,[12] the High Court of Australia stated that ‘Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of a fact in issue to a significant extent.’[13]

[12] (2017) 263 CLR 338 (‘Hughes’).

[13]    Hughes 348 [16] (Keifel CJ, Bell, Keane and Edelman JJ).

55It is necessary to identify with precision the tendency and the facts in issue which the tendency is adduced to prove. The facts in issue in a criminal proceeding are those facts which are relied upon to establish the elements of the offence. The primary fact in issue in this trial is whether any of the alleged offences occurred.

56In Hughes, the High Court considered that an assessment of ‘significant probative value’ involved two steps:[14]

(1)     the extent to which the evidence supports the tendency; and

(2)     the extent to which the tendency makes more likely the facts constituting the charged offence.

The Court ‘must be comfortable that the evidence is of sufficient weight to justify the risk of the evidence unwittingly being given too much weight.’[15]

[14] Ibid 356 [41].

[15] Ibid 370–71 [87] (Gageler J).

57As the High Court explained in TL v The King:[16]

For evidence to have ‘significant probative value’, it ‘should make more likely, to a significant extent, the facts that make up the elements of the offence charged’; in other words, the evidence must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.

[16] (2022) 275 CLR 83, 95 [28] quoting Hughes 356 [40], 368–369 [81], 370 ]86], 423 [215].

58In multi-complainant sexual offence cases, such as the present, the question that arises is whether the evidence that the accused committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant. The High Court in Bauer opined:[17]

… 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. 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.

[17]    Bauer 87 [58] (citations omitted).

59In CGL v DPP the Victorian Court of Appeal observed:[18]

As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and – even more so – to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.[19]

[18] (2010) 24 VR 486, 496–497 [39]­–[40] (Maxwell P, Buchanan and Bongiorno JJA). See also Velkoski v The Queen (2014) 45 VR 680, 697 [76] (Redlich, Weinberg and Coghlan JJA).

[19]    Velkoski 697 [79].

60Harris (a pseudonym) v The King (‘Harris’)[20] was a multi-complainant case in which the prosecution sought to rely on charged and uncharged acts as tendency to, amongst other things, have a sexual interest in his biological children and children of his partner in his care. The tendency notice provided examples of touching the genitals, bottoms or breasts of a child and watching them naked or in a state of partial undress.[21] Similarities can be drawn between Harris and the present matter, both in respect of the charges and the acts alleged to have occurred against the backdrop of close and familial relationships.

[20] [2024] VSCA 43 (‘Harris’).

[21] Ibid [7], [68].

61The Victorian Court of Appeal in Harris also considered the tendency notice did not meaningfully limit the tendency and instead covered ‘very broad conduct’.[22] Despite the generality of the tendency notice, the Court held that the context in which the offending had occurred had a critical underlying feature:

The offending occurred in a domestic setting, when the applicant was either a parent or, in the case of JK, was in the position of carer. This represented more than opportunity. The relationship provides both the opportunity and explains the circumstances in which the applicant was prepared to act in furtherance of his sexual attraction.[23]

[22] Ibid [68].

[23] Ibid.

62If the evidence satisfies the threshold test of ‘significant probative value’ in s 97(1), the Court must then consider the restriction in s 101(2) of the EA, which provides that tendency evidence cannot be adduced by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

63In Hughes the High Court dealt with the risk of prejudice in the following passage:[24]

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from the tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft on uncharged conduct stretching back, perhaps, over many years

[24]    Hughes, at [17].

Consideration

64Section 193 of the CPA empowers the Court to order separate trials of the charges on this indictment if:

(a)   the case of the accused may be prejudiced because he is charged with more than one offence on the same indictment; or

(b)   for any other reason it is appropriate to do so.

65Section 194 of the CPA establishes a statutory presumption that if two or more charges for sexual offences are joined in the same indictment, those charges are to be tried together. This includes charges involving different complainants. The presumption is not rebutted merely because evidence of one charge is inadmissible on another charge. Nonetheless, I must consider any prejudice the accused may suffer by trying the charges involving AB together with the charges involving CD and EF and the likely effectiveness of any jury directions I might give in order to overcome that prejudice.[25]

[25]    R v TJB [1998] 4 VR 621.

66In order to rule on the severance application, I must first determine the admissibility of the tendency evidence.[26]

[26]    See R v Bright (a Pseudonym) (2014) 45 VR 744, 756 [52] (Beach JA and Lasry AJA); De Jesus v The Queen (1986) 61 ALJR 1, 2–4 (Gibbs CJ), 4–7 (Mason and Deane JJ), 7 (Brennan J), 9–10 (Dawson J).

67The primary issue in this trial is whether the conduct comprising the charged events occurred. The tendency contended for is led to prove those facts in issue.

68‘Significant probative value’ requires more than the mere fact that an accused has, on more than one occasion, committed a similar offence. The fact an accused has, on a different occasion, committed a like offence does no more than prove a disposition to commit crimes of the kind in question.

69Here however, the disputed evidence goes much further. On analysis, it reveals a sexual interest by the accused in the children of a close female friend (DM) and the young nieces of his then domestic partner (MT) who were in his care, and to whom he had access. It also demonstrates a willingness to act on that sexual interest.

70The alleged offending occurred when the children were aged between six and ten and were either staying with the accused or visiting him in his house (nine charges), at the complainant’s house (four charges) or at the complainant’s grandmother’s house (one charge).

71Although the children were different ages at the time of the alleged offending, they were all prepubescent girls. They were also vulnerable by virtue of the disparity in age when compared to the accused, and by virtue of their status as the children of the accused’s close friend or domestic partner’s siblings, which created a position of trust which the accused allegedly abused.

72Moreover, the periods of alleged offending overlap, being all between 1 April 2018 and 31 July 2021, a period of about 3 years and 4 months.

73It is in the context of the relationship with the complainants that the evidence is led to establish the accused would take advantage of occasions where the children were in his care or, at least, in his presence at his home or a house associated with the relevant complainant, and often during family occasions, such as Christmas dinner, and often when adults were present nearby.

74I acknowledge the conduct intended to be covered in the tendency notice is quite broad, as the prosecution seeks to rely on evidence of conduct both in the presence of other people (whether they be adults or children) and conduct that occurred when the complainants were alone with the accused. Nonetheless, the similarities between the circumstances of the alleged offending are sufficient to provide the link necessary to render the tendency evidence in relation to AB of significant probative value in relation to the charges involving CD and EF.

75While the two charges which allege the accused kissed AB in a sexual manner are different from the other alleged offending conduct, they demonstrate the accused had a sexual interest in AB, and that evidence is admissible as tendency evidence in relation to the other charges involving AB. Moreover, I am of the view that that alleged conduct is also evidence of a sexual interest in prepubescent female children related to his then sexual partner (CD and EF) to whom he had unsupervised access and a willingness to act upon that sexual interest.

76I consider the Court of Appeal’s reasoning in Harris is apposite in the present case. The close relationship the accused had with the complainants and their mothers provided him with the opportunity to offend, both alone and in the company of others, and demonstrates why or how he was prepared to act upon his sexual attraction.

77I conclude that the evidence of the three complainants reveals the accused had a sexual interest AB, the daughter of his former partner, and CE and EF, the daughters of his then partner’s brother and sister who were in his care and to whom he had access. The evidence of the three complainants also reveals the accused’s willingness to act on that sexual interest.

78By way of completeness, I accept the ‘common features’ relied upon by the prosecution in the prosecution tendency evidence submissions at [20] and [22] are present in this case.

Conclusion

79For the reasons discussed above, I am satisfied all the tendency evidence the prosecution seeks to lead in this joint trial will, either by itself or having regard to other evidence to be adduced by the prosecution, have significant probative value and is, therefore, cross-admissible in relation to all complainants and all charges. I am also satisfied the probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused. In this regard, I consider the risk the jury might misuse the evidence or give the evidence too much weight can be overcome by appropriate judicial directions.

80Accordingly, I am satisfied that the presumption in CPA s 194(2) applies in this case and the severance application is refused.

And I so rule.