Eddy (a pseudonym) v The King

[2024] SASCA 115

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

EDDY (A PSEUDONYM) v THE KING

[2024] SASCA 115

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice B Doyle)

26 September 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE -ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY

EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE

The appellant was convicted by a judge sitting alone of three counts of maintaining an unlawful sexual relationship with three children (AK-E, CK-E and BS). He was acquitted of two counts of aggravated indecent assault against a fourth child (SS).

Pursuant to s 34P(2)(b) of the Evidence Act 1929 (SA), the trial judge found the accounts of the four complainants cross-admissible to demonstrate a propensity on the part of the appellant to opportunistically and brazenly assault younger relatives notwithstanding a substantial risk of detection. The trial judge also found the evidence was cross-admissible pursuant to s 34P(2)(a) to reason that it was improbable that the complainants’ accounts were independently fabricated or imagined, or that the complainants had otherwise been mistaken.

The appellant appeals against his convictions on the sole ground that the accounts of CK-E and BS were insufficiently similar to the account of AK-E, such that the evidence was not cross-admissible having regard to the requirements of s 34P.

Held (per Curiam) dismissing the appeal:

1.The evidence of AK-E, CK-E and BS admitted for the propensity use had strong probative value in relation to proof of the offending against each complainant having regard to the particular issues arising at trial, and the probative value of the evidence outweighed any prejudicial effect it might have.

2.The probative value of the evidence of AK-E, CK-E and BS admitted for the improbability use in relation to proof of the offending against each complainant outweighed any prejudicial effect it might have.

3.The trial judge appropriately directed herself against engaging in the impermissible use reasoning identified in s 34P(1) and kept that use distinct from the propensity and improbability uses.

Criminal Law Consolidation Act 1935 (SA) ss 50, 56; Criminal Procedure Act 1921 (SA) s 158(1); Evidence Act 1929 (SA) ss 34P, 34R; Statues Amendment (Child Sexual Abuse) Act 2021 (SA) s 17, referred to.

R v C, CA [2013] SASCFC 137; R v March [2014] SASCFC 54, applied.

CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486; Collins v The Queen [2020] SASCFC 96; Dempsey (a pseudonym) v The Queen [2019] VSCA 224; DES v The Queen [2020] SASCFC 32; Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293; Douglass v The Queen (2012) 290 ALR 699; DPP v Roder (a pseudonym) (2024) 98 ALJR 644; DR v R [2011] VSCA 440; R v Golubovic {2016] SASCFC 144; Harris v The Queen (2015) 44 VR 652; Hughes v The Queen (2017) 263 CLR 338; Kane (a pseudonym) v The King [2024] SASCA 70; McRoberts v The King [2024] SASCA 92; MDM v The Queen (2020) 136 SASR 360; Page v The Queen [2015] VSCA 357; PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Bonython-Wright (2013) 117 SASR 410; R v Jones (2018) 131 SASR 532; R v Marshall [2023] SASCA 105; R v MJJ; R v CJN (2013) 117 SASR 81; RHB v The Queen [2011] VSCA 295; Sexton v The Queen (2022) 141 SASR 325; Slape v The Queen [2022] SASCA 91; TL v The King (2022) 275 CLR 83, considered.

EDDY (A PSEUDONYM) v THE KING
[2024] SASCA 115

Court of Appeal – Criminal: Bleby and David JJA and B Doyle AJA

THE COURT:

Introduction

1. The appellant was charged on Information with maintaining an unlawful sexual relationship with three children[1] (CK-E, BS and AK-E) and two counts of aggravated indecent assault against a person under the age of 14 years (SS).[2]  The appellant is the uncle to CK-E and AK-E and was previously the step-uncle to BS and SS. 

   [1]     Contrary to Criminal Law Consolidation Act 1935 (SA), s 50.

   [2]     Contrary to Criminal Law Consolidation Act 1935 (SA), s 56.

2. Following a trial by judge alone the appellant was found not guilty of the counts of aggravated indecent assault against SS (Counts 3 and 4) but was convicted of the counts which alleged the maintenance of an unlawful sexual relationship with CK-E, BS and AK-E (Counts 1, 2 and 5 respectively).  He now appeals against those convictions.[3] 

   [3]     The appellant was granted an extension of time and permission to appeal on 6 February 2024.

3. In detailed reasons for verdict,[4] the trial judge found that the complainants’ accounts of the appellant’s conduct towards them was cross-admissible on two bases.  The judge found the evidence could be used to demonstrate a propensity on the part of the accused to assault younger relatives even where the presence of other people in the vicinity meant there was a substantial risk of his detection.[5]  The judge also found the similarities in the complainants’ accounts could be used to reason that it was improbable that they were independently fabricated or imagined, or that the complainants had otherwise been mistaken.[6] 

   [4]     R v JDE [2023] SADC 22 (‘Reasons’).

   [5] Reasons at [32].

   [6] Reasons at [33].

4. Following a consideration of the evidence and the main arguments raised by the prosecution and the appellant, the trial judge used the evidence of the complainants consistently with the bases upon which it had been found cross-admissible.  The trial judge did so whilst giving separate consideration to each of the charges on the Information.[7]

   [7] Reasons at [198]-[206].

5. The appellant accepts that there were features of the accounts of the offending against CK-E and BS which rendered that evidence cross-admissible as between Counts 1 and 2.  His essential complaint on appeal is that there was an absence of relevant similarities between the accounts of the offending against CK-E and BS, on the one hand, and the account of the offending against AK-E, on the other, with the result that neither of the two modes of reasoning engaged in by the trial judge was properly available.  

6. Although the notice of appeal asserts that the trial judge erred in law in finding that the evidence was cross-admissible, on the hearing of the appeal, the appellant accepted that no objection to admissibility had been pressed at trial.[8] It was submitted that whilst a failure to object went to whether there was an error in the admission of the evidence of charged acts in proof of other charged acts, the use of that evidence of discreditable conduct remained governed by ss 34P and 34R of the Evidence Act 1929 (SA) (‘the Act’).[9] 

   [8]     The appellant’s counsel submitted that although the exchanges between the trial judge and the appellant’s trial counsel were opaque, it had to be conceded that no objection to admissibility was raised.  Understood in the context of the submission that had been made in writing by the respondent that the appellant’s trial counsel had not taken issue with the prosecution’s submission that the evidence had two cross-admissible uses, and since plainly there could have been no objection to the admissibility of the evidence in respect of the counts to which it related, that appears to have been a concession that no objection to cross-admissibility was raised.

   [9] No submission was advanced about the self-directions recorded in the Reasons beyond the contention that the trial judge used the evidence in ways precluded by s 34P.

7. The absence of an objection to the cross-admissibility of the complainants’ evidence is a matter that may affect the grounds upon which the verdicts of guilty might be set aside,[10] provided that it is first demonstrated that the evidence was used without it having met the requirements of s 34P of the Act.

   [10]   Criminal Procedure Act 1921 (SA), s 158(1).

8. Resolving that anterior question requires a consideration of the complainants’ accounts in the context of the issues in the trial.

   The circumstances of the alleged offending

9. The appellant is the biological uncle to AK-E and CK-E (who are brother and sister) and was at material times the step-uncle to SS and BS (who are sisters).  The appellant is a younger brother of KE, the father of each of AK-E and CK-E.  After KE first separated from their mother (RK) he commenced a relationship for a period with KS.  The complainants BS and SS are KS’s daughters from a previous relationship. 

10. The appellant resided with his parents (DE and PE) and his younger brother ZE at their home in Salisbury East.  The complainants would see and interact with the appellant when they visited the Salisbury East residence and on occasions when the appellant would visit their homes or accompany them on outings with other family members.  There was a swimming pool at the Salisbury East residence.

11. The charged offending concerning AK-E was alleged to have occurred in the appellant’s bedroom at the Salisbury East residence when they were playing video games together.  In relation to CK-E, the acts were alleged to have occurred at her home where she lived with her mother (RK) and also at the Salisbury East residence.  In the case of BS, the offending was alleged to have occurred in the appellant’s bedroom at the Salisbury East residence.  The offending against SS was also alleged to have occurred at the Salisbury East residence.

12. As will be explained in greater detail, there were some differences in the nature of the unlawful sexual acts alleged by AK-E, CK-E and BS respectively.  In the case of AK-E, the appellant was alleged to have inserted his penis into AK‑E’s anus, and to have caused AK-E to perform fellatio on him.  In the case of CK‑E, the appellant was alleged to have inserted his penis and finger into her vagina and performed cunnilingus upon her on more than one occasion.  In the case of BS, the appellant was alleged to have engaged in acts of touching her over her clothes in the areas of her thigh, vagina and bottom.  Each of these three complainants described an occasion of the appellant causing or inciting them to masturbate him. 

13. In the case of SS, it was alleged the appellant engaged in an act of indecent assault by cupping her bottom in the swimming pool at the Salisbury East residence, and there was also an allegation of indecent touching in the appellant’s bedroom during an episode of video game playing.

14. The offending that is alleged to have occurred first in time involved AK‑E.  His evidence was that the first charged sexual act committed against him occurred when he was about six or seven years old.  The appellant would have been 19 or 20 years old at that time.

15. The offending against CK-E and BS was alleged to have commenced and occurred when they were around six or seven years old.  CK-E and BS are of a similar age and are about four years younger than AK-E. 

16. The charged offending in respect of SS was alleged to have occurred when she was a young teenager, by which time the appellant was in his mid 20’s.  Whilst satisfied that the appellant had engaged in indecent behaviour towards SS, the trial judge was ultimately not satisfied beyond reasonable doubt that the particular allegations the subject of Counts 3 and 4 occurred as alleged. 

17. Throughout the entire period of the alleged offending, the appellant was living with his parents at the Salisbury East residence.  He did not work, and there was evidence that the appellant suffered from autism as well as other disorders that affected his behaviour.[11]  There was evidence that he had a disturbed sleep pattern and would often sleep during the day.  The trial judge made findings in these terms:[12]

    It is clear from [the evidence of a number of witnesses] that he is not a sophisticated person.  His main interest appears to be gaming.  He does not appear to have many friends outside the family’s social circle.  He was taken along with the children to activities such as swimming and hiking in addition to being taken to the movies.  The evidence reveals that he was treated very much as one of the children rather than an uncle or step-uncle of any of the complainants.

    [11]   The appellant’s parents PE and DE gave evidence that he suffered from a chromosome disorder (XYY47), attention deficit disorder and short-term memory loss.

    [12] Reasons at [157].

18. One of the forensic issues at trial concerned the extent to which, in light of the known behavioural issues affecting the appellant, he was likely to have been left alone with the complainants for any substantial length of time.  Ultimately, the trial judge found that:[13]

    It was made clear by all adult witnesses that the accused was not trusted to be left alone with any of the children for any number of reasons.  Some of the reasons that they proffer were that he could not look after himself, that he would not feed the children, that his behaviour was unpredictable and that he said and did inappropriate things.

    [13] Reasons at [155] (transcript references omitted).

19. As will be seen, the judge found that there were occasions when the accused was left alone for brief periods when people were in the garden smoking or in other parts of the house.  The judge was satisfied that given that the occasions of abuse described by the complainants were not lengthy, there was sufficient opportunity for the offending to have occurred as alleged.[14]

    [14] Reasons at [156].

20. Against that background it is necessary to describe in greater detail the accounts of the four complainants of the offending against them.  

    The evidence of AK-E

21. AK-E gave evidence that he and the appellant had a shared interest in playing computer games.  He first engaged in gaming with the appellant in a shed at the Salisbury East residence.  He described sitting on the appellant’s lap whilst gaming, with the appellant shifting around, moving his lower body.  Those circumstances did not form part of the charged offending.

22. The first charged unlawful sexual act about which AK-E gave evidence occurred when he and the appellant were gaming in the appellant’s bedroom at the Salisbury East residence.  AK-E said he was six or seven years old at the time.  His memory was that he wanted to play a particular game (Halo 3: ODST) and the appellant said he could only do so if AK-E did something for him.  The appellant got him to stand up and pull down his pants and sit back down.  AK-E continued playing the game, and the appellant began touching AK-E’s penis while touching himself.  After a time the appellant lent in closer and began sucking AK-E’s penis.  AK-E stood up shortly thereafter and tried to pull his pants back up, and the appellant put his hand on his shoulder and guided him back to his seat.  The appellant said if AK-E told anyone he would kill them.  In cross-examination AK‑E was asked who else was in the home at the time of this occurrence, and he answered that he did not know.

23. AK-E described another time in the appellant’s bedroom when he wanted to play a different game (Call of Duty Modern Warfare 2).  The appellant asked him to stand up and remove his pants and sit back down.  AK-E felt a sharp pain which was the appellant’s penis in his anus.  He played the game for a little while before getting up and trying to leave, but sat back down when the appellant put his arm across his chest.  When asked whether anyone else was at the home at that time, AK-E said that no-one was at the house as his grandparents were away on that particular weekend.  He could not say where they were, he said he just knew the house was quiet.  AK-E’s memory was not clear but he said he was six or seven at the time of the incident.  In cross-examination he said that he thought that his grandparents had gone away just for a day.  In re-examination he said his father KE was not staying at the residence on that occasion.

24. AK-E described a further occasion involving similar conduct that occurred when the appellant had wanted to play another game, the precise name of which he could not recall.  He was initially unsure if this occasion was before or after the occasion just described, but a subsequent answer suggested it was later in time.  It involved a similar allegation of anal sex, AK-E getting up to leave almost immediately, and the appellant pulling his shoulder towards the seat.

25. AK-E also described an occasion in the appellant’s bedroom when he was not actively playing a game and the appellant took AK-E’s hand and guided it towards the appellant’s penis.  The appellant effectively made him hold his penis and move it in an up and down motion, before getting AK-E to come closer and suck on his penis.  AK-E said that this ceased when someone was ‘at the door’ and the appellant pushed him back and pulled up his pants.  In cross-examination AK- E said he did not know who was at the house at the time, he just knew that someone was.

26. AK-E described getting his own X-Box 360 when he was nine or ten years old.  When that occurred he did not need to ask to play the appellant’s console any more, and there were no other sexual acts that AK-E could remember.

27. In cross-examination, the circumstances in which AK-E would visit the Salisbury East residence during the period of the alleged offending were explored.  The effect of the evidence was that during the period following his father’s separation from his mother and up until he was ten years old, AK-E would see his father at the Salisbury East residence ‘every other weekend’ and often, indeed about 70 per cent of the time, he would stay overnight at the home with his father.[15]  During that period, the appellant was living at the Salisbury East residence, and the appellant’s younger brother ZE was there sometimes, but not always.[16]  AK‑E also said in cross-examination that the appellant’s sister LB would sometimes be at the Salisbury East residence when he was there.

    [15]   RK’s evidence was consistent to the extent that she said KE had the children every other weekend, but her evidence was that KE only lived at the Salisbury East residence for a relatively short period before KE commenced residing with KS.  KS lived nearby to the Salisbury East residence.  At all events, it was clear that AK-E continued to spend time at the Salisbury East residence after his father stopped living there.  KS gave evidence that she would visit the Salisbury East residence frequently, and at least every second weekend when KE had his children.

    [16]   KS and BS gave evidence that ZE lived at the Salisbury East residence at the times relevant to the offending.

    The evidence of CK-E

28. CK-E participated in two interviews the recordings of which were tendered in evidence.[17]  She then gave evidence in chief and was cross-examined at a pre-trial special hearing.[18]

    [17]   Evidence Act 1929 (SA), s 13BA, Summary Offences Act 1953 (SA), s 74EB.

    [18]   Evidence Act 1929 (SA), ss 12AB and 13BA.

29. CK-E described an occasion in the lounge room at her mother’s home after she and the appellant had finished playing a game of Monopoly.  Her evidence was that after the game finished, her brother was in his bedroom, and her mother went ‘out the back’.[19]  CK-E’s memory was that she had gone into the kitchen to get something to eat but the appellant pushed or pulled her into the lounge room.  The appellant forced her to lie on him and he put his hand over her mouth.  He then licked her vagina, took off her clothes and placed his penis inside her vagina.  CK‑E said she was numb, scared and anxious and ‘froze’.  CK-E recalled she was six or seven years old when this incident occurred.  CK-E was ‘pretty sure’ this incident was before the other occasions she described.

    [19]   In later evidence she said that her mother was outside the house under a pergola.

1. CK-E gave evidence of another occasion which took place at the Salisbury East residence where the appellant resided.  She described being pushed by the appellant from the hallway into an ensuite bathroom that was accessed through her grandparents’ bedroom shortly after she had been using that bathroom.  The appellant pulled her pants down, forced her to sit on the toilet, put his hand over her mouth and started licking her vagina.  When asked whether anyone else was home on this occasion, she indicated her grandparents and, she thought, her grandfather’s sister, had been home.  She believed her grandfather was outside with his sister and her grandmother was outside or in the kitchen.

2. CK-E also described an occasion at her mother’s home when the appellant pushed her into the cubby house which was out the back next to the fence.  He took off her clothes, put his hand on her mouth and licked her vagina.  In relation to this occasion, CK-E said that her brother was home in his room and that her mother was home but she did not know where.

3. CK-E gave evidence of another occasion in the lounge room of her home when the appellant moved her hands up and down on his penis.  CK-E said her brother was home in his room and that her mother was home but she did not know where.

4. CK-E also described an occasion at the Salisbury East residence when the appellant was throwing her and her cousin in the pool.  When it was CK-E’s turn to be thrown the appellant made her sit on his lap and inserted his fingers in her private parts before throwing her into the air.

   The evidence of BS

5. BS participated in two interviews the recordings of which were tendered in evidence.  She then gave evidence in chief and was cross-examined at a pre-trial special hearing.

6. BS gave evidence of an occasion when she was around six or seven years old when the appellant covered her mouth, picked her up and took her into his bedroom.  The appellant put her down on his bed, was trying to pull her onto his lap, and touched her over the top of her clothes in places she did not want to be touched.   When asked in the course of her evidence whether others were present in the house when this occurred she said ‘yes’, but could not recall who they were.

7. BS described a second occasion when she was visiting the Salisbury East residence and her step-grandmother had gone to the toilet.  The appellant came out of his room, checked to see that nobody was there, and pulled her into his room.  The appellant touched her over the top of her clothing in the area of her genitals and bottom.  She tried to fight back but was too young.  When her step-grandmother called out her name the appellant let her go and she left the room.  In an interview with police, BS said she thought that her step-father had a job at the time, that her mother had left her at the house for a period, and that CK-E was not there on that occasion.  When asked in the course of her evidence at the pre-trial special hearing, she said she could not then remember whether there were any other people present in the house on that occasion.

8. BS described a third occasion during summer when she had been the first ready to use the pool.  BS said that CK-E, AK-E, SS and her step-father had been home on this occasion; her mother had been with her but was called into work.  BS said that she was sitting on the couch watching television and the appellant came out of his room, got some food and then returned to his room.  Then he emerged again and grabbed BS, covering her mouth so she could not yell, and took her into his room and touched her over her clothes again.

9. BS described a fourth and last occasion when again she was visiting to use the pool.  Again, the appellant had left his room to see if anybody was around.  He then covered BS’s mouth, picked her up and took her to his room.  On that occasion he got his penis out and tried to get her to touch it.  His penis was erect.  He grabbed her hand and tried to move it towards his penis but she kept pulling her arm back.  He continued to touch her over the top of her clothes.  Although she was not clear in her recollection, she thought that that the conduct ended when the appellant’s mother called out.  The effect of her recollection was that CK-E and AK-E were also present in the home and were getting ready to use the pool.  She could not remember if her sister, father or mother were there. 

   The evidence of SS

10. SS gave evidence that on her thirteenth birthday in 2016 she was in the pool at the Salisbury East residence when the appellant cupped her bottom for a minute or so whilst they and AK-E were in the pool.  She told him to ‘piss off’, left the pool and asked her mother if they could go, which they did shortly thereafter.  In cross-examination she said that she waited for some of her friends to be picked up before leaving, and a few of them came back to her house.

11. SS also described an incident that occurred in AK-E’s presence on the couch in the appellant’s bedroom, when they were playing X-Box.  The appellant put his hand up her leg towards her groin area.  The appellant continued to rub her leg on her skin and on top of her shorts, only stopping right before her vagina.  KE then came down from the kitchen to say that dinner was ready, giving SS an opportunity to get out of the room.  SS said in cross-examination that on this occasion her mother, her sister BS and CK-E were also present at the house but she could not recall where in particular they were.  She could not recall if her step-grandfather PE was present, and believed her step-grandmother DE was cooking dinner.

    The course of the proceedings

12. The Director of Public Prosecutions filed a notice dated 25 May 2021 pursuant to s 34P(4) foreshadowing reliance upon evidence of the appellant’s commission of charged and uncharged sexual acts against the four complainants to demonstrate a specific propensity to commit sexual acts against younger family members, which propensity was circumstantially relevant to proof of each of the charged acts.

13. In written submissions filed after receipt of a notice of intention to object to the proposed discreditable conduct evidence,[20] the propensity or disposition relied upon was refined and articulated as a propensity to commit the sexual acts in circumstances where there was a high risk of detection.[21]

    [20] The notice was dated 23 June 2021. The ground identified was that the evidence did not meet the requirement of s 34P(2)(b) that it be strongly probative of the charged offending.

    [21]   Prosecution Outline on Cross Admissibility dated 25 October 2021.

14. It was submitted that the high risk of detection gave rise to an issue of objective improbability, and that establishing a particular propensity on the appellant’s part to engage in such risky behaviour was relevant to a consideration of that improbability.  In that regard the prosecution pointed to the evidence that the offending occurred either in rooms or in the pool at the Salisbury East house, or in rooms at CK-E’s home. 

15. Other similarities were identified in relation to the physical nature of the conduct towards the three female complainants.  It was said that in respect of all four complainants, there was no grooming or ‘lead up’ behaviour.

16. The prosecution did not allege a general sexual interest in young children or a mere propensity to commit offences of the type that were charged.  Rather, the prosecution contended that there was a particular, distinctive propensity, namely, to commit sexual acts on each complainant in a brazen and opportunistic fashion where detection was seemingly probable as other members of the family were nearby, and where access to the child was facilitated by the appellant’s status as an uncle or step-uncle of each complainant.

17. At an initial hearing on 26 October 2021, the question of cross-admissibility was canvassed in the context of confirming that there was no application for severance of the counts.  Counsel then appearing for the appellant indicated that having regard to the descriptions given by the individual complainants, especially CK-E and BS, the threshold of cross-admissibility was crossed.

18. The judge understood this concession to relate to improbability of similar account use.  There were further exchanges in relation to the use of the evidence to demonstrate a particular propensity or disposition but ultimately, following an election by the appellant for a trial by judge alone, that issue was not determined before trial.

19. The question of cross-admissibility was then the subject of discussion between the trial judge and the appellant’s trial counsel following addresses.

20. In the context of a discussion of improbability of similar account use, trial counsel for the appellant said that because the matter was proceeding as a trial by judge alone, the ‘issues of prejudicial and probative value … fall away to a certain extent’.  Whilst it is relatively clear from the exchanges that followed that trial counsel accepted that the evidence could be used for an improbability of similar account use, the extent to which that amounted to a positive concession that the evidence could appropriately be used for propensity purposes and, if so, whether that was on the footing of a misapprehension,[22] is less clear.  On one reading of the exchanges,[23] trial counsel might be taken to have acknowledged the proposed propensity use of the evidence, without positively conceding or consenting to that use.[24] 

    [22]   There was a reference during the exchanges to the decision in Sexton v The Queen (2022) 141 SASR 325, however, as the trial judge observed, that decision concerned improbability of similar account use and not propensity use: see T546.12-547.10.

    [23]   In particular, at T548.9-17, after referring to a high risk of detection in the context of propensity reasoning, trial counsel said that was something he was going to ask the judge to consider. 

    [24]   Trial counsel for the appellant had, before these exchanges, addressed the trial judge in considerable detail, emphasising questions of opportunity in light of the witnesses called by the defence, what were submitted to be unsatisfactory features of the evidence of the complainants, details associated with the complainants’ accounts that were not supported by other witnesses, what were submitted to be inherent improbabilities or implausibility associated with the prosecution case and circumstances which may have acted as a motive or catalyst for the allegations to have been made.  Counsel submitted that there was, despite the evidence of witnesses to the contrary, reason to think that there was collusion or discussion between the complainants. 

21. At all events, on appeal, the appellant’s counsel fairly accepted that, at the least, it could not be said that the appellant had positively advanced an objection to the cross-admissibility of the evidence for either use.

    The trial judge’s reasons

22. In her reasons for verdict the trial judge considered and dealt with the question of cross-admissibility.  The judge first noted that aspects of the discreditable conduct evidence were led to provide context to ensure that the whole of the allegations were before the Court.[25]  No complaint is made in relation to that use of the evidence.

    [25] Reasons at [25].

23. The judge noted the two additional uses proposed by the prosecution, directed herself that she must not engage in the impermissible reasoning identified in s 34P(1)(a)[26] and then proceeded to rule that the evidence of the complainants was cross-admissible in two ways.

    [26] Reasons at [31].

24. First, the trial judge indicated that she was satisfied on the papers that the evidence of each count could be used to demonstrate a propensity on the part of the appellant to sexually assault younger relatives even when the presence of other people in the vicinity meant there was a substantial risk that he would be detected.  Her Honour observed that the evidence had strong probative value that substantially outweighed[27] the prejudicial effect of the evidence, and that she was satisfied that she could keep the permissible and impermissible uses separate.[28]

    [27] Section 34P(2)(a) was amended with effect from 1 June 2022 by the Statues Amendment (Child Sexual Abuse) Act 2021 (SA), s 17.  In view of that amendment, it was not strictly necessary that the probative value of evidence ‘substantially’ outweigh its prejudicial effect.

    [28] Reasons at [32].

25. Secondly, the judge ruled that the evidence of the individual complainants could also be used to find that the complainants’ accounts had such a degree of similarity that it was improbable that they were independently fabricated or imagined, or that the complainants were otherwise mistaken about the events alleged.

26. The judge then proceeded to set out the evidence led by the prosecution and the defence in some detail, before summarising the arguments made in their addresses.  The judge observed that one of the arguments that had been advanced on the appellant’s behalf was that there was a lack of opportunity during the relevant period for the events to have taken place at the family home (where the appellant resided) or the home of RK.  It was emphasised that the appellant had been supervised and that there was a ‘tight rein’ on him when the children were over at the family home.  The appellant’s counsel had also argued that the allegations were implausible.

27. The reasons then set out the judge’s assessment of the witnesses.  Relevantly, the judge considered that the accounts given by CK-E , BS and AK-E were reliable and that they were credible witnesses.[29]  In the case of SS, the judge found that whilst she was not being deliberately untruthful, SS’s evidence did not satisfy her beyond reasonable doubt of the appellant’s guilt.[30]  The judge accepted the evidence given by RK and KS to the effect that there were attempts to keep an eye on the appellant and to prevent the children being with him on his own, and that they had not themselves seen anything untoward that reflected the allegations in the matter.[31]

    [29] Reasons at [163], [168], [189].

    [30] Reasons at [179].

    [31] Reasons at [190].

28. In respect of the evidence of the three witnesses called by the appellant, LB, PE and DE, the trial judge considered that they exaggerated the extent of the supervision of the children who were at their house.  Whilst it was accepted that they had tried to keep an eye on the children, it could not be accepted that they succeeded at all times.  The trial judge found that because they were aware of the appellant’s behavioural issues there were limited opportunities for the appellant to behave in the way that was alleged.  However, the very nature of the allegations in relation to the female complainants was that they were brief and seemingly opportunistic.

29. The trial judge then went on to observe that there was a similarity between the allegations of each of the complainants, the most striking of which was the opportunistic nature of the offending.  The judge observed that:[32]

    … [t]he allegations made by each of the complainants involved sexual activities that took place quickly at the instigation of the accused and in the main occurred even when there were other people present in the house in which they were occurring.  It is improbable that the complainants would have independently made up such allegations.

    The evidence given by CK-E and BS that the accused put his hand over their mouths when he committed certain acts against them is also a feature of similarity that renders it improbable that they have independently made up the allegations.

    I have in this case considered the question of the similarity of the allegations of the four complainants in terms of the circumstances in which they are alleged to have occurred and the nature of the allegations.  I consider that there are such similarities as to have rendered it improbable that they would have independently fabricated, imagined or otherwise been mistaken about the offences.  I accept that none of the complainants have colluded with each other or anyone else in respect of their allegations.  I accept that their allegations have not been contaminated by any knowledge of the others either received wittingly or unwittingly.

    [32] Reasons at [198]-[200].

30. The trial judge then went on to address the specific propensity use of the evidence:[33]

    I also have given consideration to the question of the propensity of the accused to have engaged in sexual conduct with his younger family members opportunistically and notwithstanding that he may have been detected in the circumstances.  I consider that the evidence as a whole is capable of proving that the accused was a person with a propensity to engage in sexually predatory conduct with underaged family members as and when the opportunity presented itself in order to gain gratification notwithstanding the high risk of detection.

    [33] Reasons at [201].

31. The judge observed that the defence case had emphasised the implausibility of the appellant being prepared to engage in such risky and brazen sexual activity.  She considered that the tendency to engage in precisely that kind of behaviour was capable of meeting or resolving the doubt that might be raised by the inherent riskiness of the alleged conduct and thus implausibility of the allegations. 

32. The judge went on to make the following findings by way of conclusion:[34]

    I find that it is improbable that the four complainants have given this evidence that is concocted or imagined by each of them independently of the other when there are such similarities between them.  However, for the reasons that follow even though I do not disbelieve SS even engaging in this reasoning has not been sufficient for me to be satisfied of Counts 3 and 4.

    I also find that the accused had a propensity to engage in the conduct as alleged with younger family members in an opportunistic and brazen fashion notwithstanding the presence of others and the possibility of detection.

    [34] Reasons at [204]-[205].

33. Her Honour then dealt with each of the charges separately bearing the earlier expressed findings in mind.[35]  The appellant was found guilty of Counts 1, 2 and 5, and not guilty of Counts 3 and 4 on the Information.

    [35] Reasons at [206].

    The principles governing the question of cross-admissibility

34. In a trial involving multiple complainants, the secondary use of evidence of offending against one complainant in connection with charged conduct involving another complainant attracts the application of s 34P of the Act.[36] 

    [36]   Collins v The Queen [2020] SASCFC 96 at [144] (Blue J, Peek and Stanley JJ agreeing).

35. The considerations which bear on the admissibility of evidence for an improbability of similar account use may overlap with those that bear on its admissibility for a particular propensity or disposition use.  But the paths of reasoning are conceptually distinct and the statutory requirements for admissibility differ.   

    Use that relies on a particular propensity or disposition

36. In order for the evidence of sexual offending against one complainant to be admissible to demonstrate a particular propensity or disposition (sometimes referred to as a ‘proclivity’[37]) in proof of sexual offending against another, it is not sufficient that the evidence in question be relevant to a fact in issue.[38] 

    [37]   See, eg, R v C, CA [2013] SASCFC 137 at [68] (Kourakis CJ).

    [38]   See, eg, MDM v The Queen (2020) 136 SASR 360 at [9] (Kourakis CJ).

37. First, evidence of an accused’s conduct towards one complainant must be shown to have a probative value in respect of allegations concerning the accused’s conduct towards other complainants that outweighs any prejudicial effect it may have.[39] In assessing that question, it is necessary to have regard to whether the permissible particular propensity or disposition use is and can be kept sufficiently separate and distinct from the impermissible use identified in s 34P(1),[40] namely, a use which involves reasoning that the accused is more likely to have committed the charged offence merely because he has engaged in discreditable conduct on another occasion.[41]

    [39]   Evidence Act 1929 (SA), s 34P(2)(a).

    [40]   Evidence Act 1929 (SA), s 34P(3).

    [41]   In R v MJJ; R v CJN (2013) 117 SASR 81, Kourakis CJ said (at [18]) that evidence of discreditable conduct that shows no more than that the accused has engaged in other conduct which has no relevant connection to the offence other than that it shares the epithet ‘discreditable’ may, with some imprecision, be described as evidence of a mere, or general, propensity.

1. The prejudicial effect of evidence is the risk that the jury will use the evidence improperly, either by engaging in an impermissible mode of reasoning, attributing disproportionate weight to the evidence, or by becoming distracted from the real issues by reason of an emotional response to the evidence. 

2. Secondly, the evidence in question must be shown to have ‘strong probative value having regard to the particular issue or issues arising at trial’.[42]

   [42]   Evidence Act 1929 (SA), s 34P(2)(b).

3. The probative value is to be assessed by taking the evidence at its highest and having regard to the other evidence in the case.[43]

   [43]   TL v The King (2022) 275 CLR 83 at [28] (the Court).

4. This was not an identity case, and there was no question of consent.  The central issue arising in respect of each of the unlawful sexual acts alleged to have been committed against the complainants was whether those acts occurred as alleged.  In such a case, evidence tending to show the accused has engaged in unlawful sexual acts against a person other than the complainant may have a high degree of probative value where, by itself or together with other evidence relevant to proof of the offence against the complainant in question, it strongly supports proof of a tendency, propensity or proclivity which in turn strongly supports the proof of the charge under consideration.[44]  Whilst it has been said that there must be some feature of or about each unlawful sexual act which links the offending together, it is not necessary, and may distract, to determine whether the evidence reveals a ‘striking similarity’, ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’.[45]

   [44]   Hughes v The Queen (2017) 263 CLR 338 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ).

   [45]   Hughes v The Queen (2017) 263 CLR 338 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ), R v MJJ; R v CJN (2013) 117 SASR 81 at [19] (Kourakis CJ).

5. The level of specificity with which the propensity or disposition is identified is relevant to the evaluative assessment that must be made.  A body of evidence may more readily support proof of a propensity framed at a high level of generality, but a propensity so framed may not strongly support proof of the charged conduct.[46]  A propensity or disposition that is more particularly identified may, if established, offer stronger support as an intermediate fact to be deployed in aid of the proof of the relevant charge.[47]

   [46]   Hughes v The Queen (2017) 263 CLR 338 at [64] (Kiefel CJ, Bell, Keane and Edelman JJ).

   [47]   DPP v Roder (a pseudonym) (2024) 98 ALJR 644 at [27] (the Court).

6. An inclination on the part of a mature adult to engage in sexual conduct with underage children coupled with a willingness to act upon that inclination is unusual as a matter of ordinary human experience.  But whether evidence tending to show that an accused person has engaged in sexual offending against one child is admissible to prove a charge of sexual offending against another child requires a close analysis of whether evidence of the former, considered together with the other evidence in the case relevant to proof of the latter, is ‘strongly probative’.

7. Regard may be had to whether there are characteristics common to the complainants themselves (by reference to their age, gender or some other characteristic such as their relationship to the accused[48]) and to whether there are similarities in the physical acts comprising the unlawful sexual acts committed against the complainants.  The circumstances surrounding the physical conduct may also reveal and tend to establish a particular or distinctive method of procuring the opportunity to offend, or of seeking to insulate the offending from detection. 

   [48]   An interest and preparedness to engage in paedophilic conduct towards a close relative might be said to be a less common tendency than an interest and preparedness to engage in that kind of conduct with young children generally.  See, eg, DR v R [2011] VSCA 440 at [88] (Neave and Hansen JJA and Beach AJA), where it was said that sexual abuse of a child, stepchild or grandchild by their parent, step parent or grandparent was not such a common occurrence that it should be regarded as having limited probative value in relation to an allegation that the applicant had abused another child, stepchild or grandchild.

8. In Hughes v The Queen,[49] the plurality instanced ‘grooming of potential victims’ as a feature which, if common to allegations of sexual offending against a group of complainants, might reveal a pattern of conduct, before continuing:[50]

   But significant probative value may be demonstrated in other ways.  In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by.  This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience.  The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.

   [49]   Hughes v The Queen (2017) 263 CLR 338.

   [50]   Hughes v The Queen (2017) 263 CLR 338 at [57] (Kiefel CJ, Bell, Keane and Edelman JJ), R v Bauer (a pseudonym) (2018) 266 CLR 56 at [59] (the Court).

9. Those observations were made in the context of a case involving multiple complainants where the commission of the acts was in dispute and where the defence case was that the complainants had fabricated the allegations.  The plurality explained that relevant to a consideration of the evidence’s probative value was the circumstance that, considered in isolation, the allegation of a particular complainant might raise a reasonable doubt in the jury’s mind for the very reason that the conduct alleged involved opportunistic behaviour which carried an evident risk of detection.  In that context, the plurality said:[51]

   The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again.  Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.

   [51]   Hughes v The Queen (2017) 263 CLR 338 at [60] (Kiefel CJ, Bell, Keane and Edelman JJ).

10. The point being made was that where the allegations themselves raise the spectre of improbability or implausibility because of the unusual risk associated with the conduct alleged, other evidence which is capable of demonstrating that the appellant has a proclivity to engage in conduct in such circumstances may take on a particular significance in the case, such that a relatively stringent requirement as to probative value may be met.[52]

    [52]   The decision in Hughes v The Queen (2017) 263 CLR 338 concerned the requirement of ‘significant probative value’ in s 97(1)(b) of the Evidence Act 1995 (NSW), whereas s 34P(2)(b) of the Evidence Act 1929 (SA) requires ‘strong probative value’, but the observations made by the plurality remain pertinent notwithstanding any difference in the required probative value.

11. In a case where the issue is not the identity of the offender but whether the alleged offending occurred, the significance of evidence which tends to show that an accused has engaged in sexual offending against victims in circumstances where the risk of detection is high is not so much that it demonstrates a specific propensity,[53] but that it may demonstrate a particularly strong propensity – that is to say, a disposition to offend that is sufficiently strong to overwhelm the inhibition[54] that would typically attend a high risk of detection.

    [53]   The position may be otherwise where it is contended that the conduct suggests that the accused was motivated by a thrill associated with the risk of detection.

    [54]   Alternatively, the evidence may demonstrate a lack of inhibition in respect of sexual conduct, which may be equally significant (albeit for a slightly different reason) where the alleged conduct suggests a high risk of detection.

12. Whilst care should be taken not to reduce the required analysis to a numerical exercise, it may also be relevant to consider the extent and frequency of the conduct alleged in respect of a complainant,[55] the number of complainants who give evidence of relevant conduct, and the extent to which the evidence tends to show an underlying propensity over an extended period of time.[56]  The strength of evidence led to establish a propensity may vary depending on the frequency, duration and temporal proximity of the discreditable conduct and the similarity between the circumstances of the charged offences and the discreditable conduct.[57]

    [55]   See, eg, RHB v The Queen [2011] VSCA 295 at [20], [22] (Nettle JA, Harper JA agreeing).

    [56]   See, eg, Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [36] (Basten JA, Johnson and Hulme JJ agreeing).

    [57]   R v MJJ; R v CJN (2013) 117 SASR 81 at [39] (Kourakis CJ).

13. The requisite analysis is evaluative and multi-factorial, with the result that although in point of legal theory there is only one correct answer to the question whether the relevant evidence has the requisite probative value, it is one about which reasonable minds may differ.[58]

    [58]   R v Bauer (a pseudonym) (2018) 266 CLR 56 at [61] (the Court).

14. The highly fact-sensitive nature of the inquiries mandated by s 34P is evident from a consideration of intermediate appellate decisions in this State concerning the cross-admissibility of evidence of multiple complainants in cases of sexual offending against children.

15. In R v C, CA,[59] the appellant had been jointly tried in relation to allegations of unlawful sexual conduct towards three complainants, each of whom were pre-pubescent boys unrelated to the appellant.  Having undertaken a close consideration of the features of their respective accounts, Kourakis CJ ultimately concluded that whilst the evidence of offending against two of the complainants (MA and MG) showed a proclivity to commit offences of the kind committed against SG whenever an opportunity to do so arose, the more limited conduct with SG[60] was not capable of establishing a proclivity that would have strong probative force as circumstantial evidence of the charged offences against MA and MG.  Whilst, viewed retrospectively, the offending against SG could be viewed as a manifestation of the same propensity which led to the offending against MG and MA, the much more limited nature of the offending alleged to have been committed against SG was not considered to be ‘strongly probative’ in respect of the more extensive and intrusive offending against MG and MA.[61]

    [59]   R v C, CA [2013] SASCFC 137.

    [60]   SG gave evidence of a number of interactions with the appellant when they would swim naked, or when the appellant would watch SG showering, including one occasion when the appellant had an erection whilst watching him shower.  The charged conduct involving SG comprised an occasion when the appellant took SG’s hand and asked him to grab the appellant’s penis.  After SG refused the appellant took hold of SG’s penis, following which he jumped out of the shower.  This conduct, whilst self-evidently serious, was more fleeting and of a lesser order than the conduct involving MA and MG, who both described numerous instances of unlawful sexual intercourse. 

    [61]   R v C, CA [2013] SASCFC 137 at [71]-[74] (Kourakis CJ, Anderson J agreeing), [128] (Nicholson J).

16. In R v March,[62] one of the issues on appeal was whether the evidence of three complainants, two of whom were the appellant’s step-granddaughters (V1 and V2) and the third of whom was a granddaughter (X), was cross-admissible.  Each had been of a similar age at the time of the offending, which had occurred over a period of two years.  The prosecution had at trial relied upon a similarity of account use, and the trial judge did not direct the jury that they may engage in particular propensity reasoning.  On appeal, however, Kelly J (with whom Sulan J agreed) considered that the evidence of the complainants did possess the ‘strong probative value’ required for admission for a propensity use, and that the degree of probative value was such that it clearly transcended any prejudice it might cause the appellant.[63]  Her Honour considered that the evidence demonstrated more than a mere propensity to commit the general type of crime charged; it demonstrated a propensity to commit a highly specific type of crime, namely to commit sexual assaults of a very similar nature in a brazen fashion where detection was seemingly probable and when access to the child was facilitated by the appellant’s status of grandparent or step-grandparent to the respective victims.[64]  Her Honour considered there was an underlying unity in respect of the accounts arising from the close familial relationship, the similar ages of the complainants at the relevant times, the brazenness and risk of detection associated with the alleged conduct and the use of a pretext to create an opportunity for indecent touching.  There were some common physical features of the accounts, including kissing with an open mouth, however there were also differences in the nature of the sexual acts alleged to have been committed against each complainant.

    [62]   R v March [2014] SASCFC 54.

    [63]   R v March [2014] SASCFC 54 at [26], [29]-[37].

    [64]   R v March [2014] SASCFC 54 at [26] (Kelly J, Sulan J agreeing).

17. The Chief Justice did not consider it necessary to express a final conclusion on whether it was appropriate to admit or use the evidence as demonstrating a particular propensity or disposition, but observed:[65]

    The evidence in this case showed the appellant to have a strong sexual interest in early-teenage girls notwithstanding their familial connection and showed that he was driven to act on his sexual impulses even when there was a significant risk of detection.  I tend to the view that the probative force of the evidence of offending against each of the girls as evidence of propensity was strong.    

    [65]   R v March [2014] SASCFC 54 at [3] (Kourakis CJ).

18. In MDM v The Queen,[66] the appellant had been convicted of maintaining an unlawful sexual relationship with two step-daughters.  The appeal was allowed for reasons that are not presently relevant, and a re-trial was ordered.  The Chief Justice (with whom Kelly J agreed) and Peek J both considered that the evidence of the two complainants was cross-admissible on a similar account basis.  In relation to propensity use, Kourakis CJ observed that the nature of the physical acts was broadly similar, they were committed within the span of a decade and they were committed at night when both complainants appeared to be asleep and no-one else in the house was awake.  He went on to observe:[67]

    The mode of offending, and its timing, suggests that the appellant acted on his sexual interest in young girls when he had easy access to their bedrooms, and at a time, and in a way, which minimised the risk of complaint from his victims and the risk of discovery by others.  The offences were also committed in a period during which the appellant’s capacity for self-control was likely to be impaired by his heavy alcohol use.  Those combined circumstances provide a strongly arguable case for the cross-admissibility of the evidence for propensity purposes.

    [66]   MDM v The Queen (2020) 136 SASR 360.

    [67]   MDM v The Queen (2020) 136 SASR 360 at [11], referring to Hughes v The Queen (2017) 263 CLR 338 at [58] (Kiefel CJ, Bell, Keane and Edelman JJ).

19. By contrast, Peek J considered it strongly arguable that the prosecutor’s decision at trial not to rely on a propensity use was correct.  His Honour observed that Hughes v The Queen[68] had involved a much larger body of evidence (involving a larger number of complainants) and he considered that there were difficulties in satisfying the requirement in s 34P(2)(a) as it then stood, and in light of the consideration required by s 34P(3).[69]

    [68]   Hughes v The Queen (2017) 263 CLR 338.

    [69]   MDM v The Queen (2020) 136 SASR 360 at [117]-[123] (Peek J, Kelly J agreeing).

    Use that relies on improbability of similar account reasoning

20. Where the prosecution relies upon similarities between the accounts of complainants to demonstrate the improbability of independent concoction, fabrication or mistake, the proposed use of the evidence does not entail reasoning that the accused possesses a propensity or disposition to commit particular crimes and is more likely to be guilty as a consequence. 

21. That is so notwithstanding that, if the degree of similarity leads to a conclusion that the accounts of the complainants could not have been independently concocted, and if the reasonable possibility of collusion or contamination is otherwise excluded, such that the events described must have occurred, a propensity of the accused will be revealed.[70] 

    [70]   R v Bonython-Wright (2013) 117 SASR 410 at [50] (Kourakis CJ, Blue and Stanley JJ agreeing).

22. The requirement of ‘strong probative value’ in s 34P(2)(b) is therefore not attracted.[71]  The question is only whether the probative value of the evidence outweighs the prejudicial effect it may have.  For this reason, some care must be taken when considering and comparing decisions concerning similar account evidence made by intermediate appellate courts by reference to more stringent admissibility requirements.[72]

    [71]   See, eg, Slape v The Queen [2022] SASCA 91 at [47] (Doyle, Bleby and David JJA). At the time admissibility was determined in Slape, s 34P(2)(a) required that the probative value of the evidence ‘substantially’ outweigh any prejudicial effect it may have.

    [72]   See, eg, CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486, PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146, Harris v The Queen (2015) 44 VR 652. These decisions concerned ‘coincidence’ reasoning which, under s 98(1) of the Evidence Act 2008 (Vic) required that the evidence have ‘significant probative value’ and which, in order to avoid exclusion under s 101(2), was required to have a probative value that ‘substantially outweighs’ any prejudicial effect it may have on the accused. That form of s 101(2), which applies in Victoria and under the equivalent Commonwealth legislation, differs from that which applies under the New South Wales, ACT and Northern Territory legislation, where the requirement is that the evidence outweigh any prejudicial effect it may have on the accused.

23. Where admitted for a similar account use, the probative value of the evidence is its capacity to negate the possibility that the complainants independently concocted, fabricated or imagined their accounts.  Since s 34S makes clear that evidence is not to be excluded only on the basis that it may be the result of collusion, it is not essential that the complainants’ accounts themselves disprove or tend to disprove that the accounts have been affected or infected by collusion (or innocent contamination, for that matter).  Indeed, it may be that similarities which attend the accounts of numerous complainants themselves raise the spectre of collusion, such that it becomes the primary forensic issue in the trial.[73]   

    [73]   R v C, CA [2013] SASCFC 137 at [58]-[60] (Kourakis CJ, Anderson J agreeing).

24. In this context, the inherent unlikelihood of more than one child known to an adult accused incorrectly alleging sexual abuse against the accused is the starting point for analysis,[74] but it is by no means sufficient to justify cross-admissibility.  Whilst it may be true to say that being the subject of two or more false accusations is an inherently less likely state of affairs than being the subject of one, a moment’s consideration shows the danger of reasoning from that basal improbability alone, and its potential to undermine if not invert the designedly exacting criminal standard of proof.[75]

    [74]   MDM v The Queen (2020) 136 SASR 360 at [14] (Kourakis CJ).

    [75]   Douglass v The Queen (2012) 290 ALR 699 at [48] (the Court).

1. The relevant inquiry is whether, as a matter of human experience, the levels of similarity between the complaints go beyond those which might be expected if, for reasons, conscious or sub-conscious, which are peculiar to them, the complainants had independently concocted, fabricated or imagined the offending which they alleged.[76] 

   [76]   R v C, CA [2013] SASCFC 137 at [65] (Kourakis CJ, Anderson J agreeing), DES v The Queen [2020] SASCFC 32 at [73] (Doyle J, Kourakis CJ and Livesey J agreeing).

2. The focus is upon the similarities contained in the narrative of the allegations made by the complainants, rather than the similarities relating to the circumstances of the complainants themselves which exist independently of the alleged conduct on the part of the accused.[77]  The age and circumstances of the complainants, and the relationship between the complainants and the accused, may nevertheless feature in or inform an assessment of the significance of similarities between the accounts of complainants.[78]  

   [77]   R v C, CA [2013] SASCFC 137 at [65] (Kourakis CJ, Anderson J agreeing), MDM v The Queen (2020) 136 SASR 360 at [128]-[135] (Peek J, Kelly J agreeing), Slape v The Quen [2022] SASCA 91 at [57] (Doyle, Bleby and David JJA).

   [78]   McRoberts v The King [2024] SASCA 92 at [52]-[53] (Kourakis CJ, Bleby and David JJA).

3. In considering whether there are similarities in the accounts which add the requisite force to what has been referred to as the basal improbability, it may be instructive to consider whether there are commonalities between the accounts that would not be expected if each of the complainants were disposed to fabricate or somehow prone to imagine an account of offending by the accused.[79]  Framing the inquiry in that way may assist in identifying those similarities which are most significant in this context. 

   [79]   Similarities which are ‘unremarkable’ or which do not transcend generic features common to many allegations of the type of offending in question are not significant in this context: McRoberts v The King [2024] SASCA 92 at [72] (Kourakis CJ, Bleby and David JJA).

4. At one extreme, a common description of the accused’s appearance is of no significance if the accused is otherwise known to the complainants.  It says nothing about the improbability that each complainant independently fabricated or imagined their account that the accused engaged in sexual offending against them.

5. At the other extreme, when the accounts of multiple complainants each include a common description of highly idiosyncratic behaviour linked to the offending, the evidence may have the capacity very powerfully to negate the possibility that the complainants independently concocted, fabricated or imagined the same detail of their account.  That may be so even though there are other aspects of their accounts which are dissimilar.  In such a case, the dissimilarities may not logically detract from the probative force arising from a particular common feature.[80] 

   [80]   See, eg, Page v The Queen [2015] VSCA 357 at [59] (Maxwell P, Redlich JA and Beale AJA).

6. If, however, the unusual or idiosyncratic behaviour is unrelated to the offending, such that the complainants might all have observed the accused behave in this way in the course of innocent interactions, the similarity would lose its significance in rebutting independent concoction.  Indeed, it might be the very kind of detail that one might expect to be included in false allegations made by complainants for independent reasons. 

7. The unlikelihood of independent concoction may also be affected by the age and circumstances of the complainants.  It is one thing to observe that aspects common to the accounts of two adult complainants are relatively unremarkable features of a narrative account of the offences described by them,[81] but similar accounts of sexual conduct given by young children who might not be expected to have any understanding or experience of the typical or characteristic features of sexual abuse against children may take on a different complexion.[82]

   [81]   See, eg, Slape v The Queen [2022] SASCA 91 at [61] (Doyle, Bleby and David JJA).

   [82]   See, eg, R v Marshall [2023] SASCA 105 at [161] (Livesey P, David JA and Kimber AJA).

8. Ultimately, it is necessary to consider the detail of the accounts and then to stand back and consider whether, having regard to the complainants’ accounts in their entirety, the similarities in the accounts tend against the possibility of independent concoction, fabrication or mistake to an extent that gives the evidence a probative value sufficient to outweigh the prejudicial effect it may have upon the accused.[83] The most obvious aspect of the risk of prejudice is the antipathy to the accused that multiple allegations will engender, and the consequential risk that the trier of fact may be distracted from any defects and frailties in the evidence directly bearing on the offences charged.[84]  

   [83]   McRoberts v The King [2024] SASCA 92 at [73] (Kourakis CJ, Bleby and David JJA).

   [84]   R v C, CA [2013] SASCFC 137 at [61] (Kourakis CJ, Anderson J agreeing).

9. In R v C, CA, Kourakis CJ said that it was important that the similarity between the accounts ‘very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score’.[85] However, that observation was made in the context of the application of s 34P(2)(a) as it stood prior to its amendment. The removal of the adverb ‘substantially’ from s 34P(2)(a) may facilitate cross-admissibility in cases where the similarities do not, with quite the same degree of strength as was previously required, tend to exclude the possibility of independent concoction.[86] 

   [85]   R v C, CA [2013] SASCFC 137 at [61] (Kourakis CJ, Anderson J agreeing).

   [86]   R v Marshall [2023] SASCA 105 at [169]-[171] (Livesey P, David JA and Kimber AJA), McRoberts v The King [2024] SASCA 92 at [60] (Kourakis CJ, Bleby and David JJA).

   The two uses compared

10. Save to observe that there is an additional requirement that must be considered where a propensity use is contemplated, it is not helpful, and will not always[87] be accurate, to say that a greater degree of similarity between the accounts is required before the evidence will be admitted for a propensity use than for an improbability of similar account use.[88]     

    [87]   See MDM v The Queen (2020) 136 SASR 360 at [14] (Kourakis CJ).

    [88]   Indeed, in Page v The Queen [2015] VSCA 357, Maxwell P, Redlich JA and Beale AJA expressed the view (at [53]) that where the occurrence of the offending is in issue, coincidence evidence will ordinarily need to exhibit a greater level of similarity, or commonality of features, than is required for tendency reasoning. That view was expressed in the context of a statutory regime which required that evidence relied on for coincidence purposes have ‘significant probative value’.

11. A particular feature which is common to the narrative of two complainants’ accounts may point strongly in favour of admission for improbability of similar account purposes, notwithstanding that the conduct comprising the offending might be substantially different.

12. Conversely, however, there may be cases where the complainants’ narrative descriptions bear no similarity on their face, but when considered together, reveal so strong or unusual a disposition that the evidence is cross-admissible for that reason.  

    Consideration

13. We turn now to consider the appellant’s submissions with respect to the two uses of the evidence relied upon by the trial judge.

    Probative value in demonstrating a particular propensity or disposition

14. As has been noted, the trial judge considered the evidence of each of the four complainants was admissible on the basis that the evidence of each complainant could be used to demonstrate a propensity on the part of the appellant to sexually assault relatives even when there was a substantial risk of detection.  When using the evidence for that purpose, the judge also pointed to the opportunistic nature of the offending described by each of them.

15. The appellant contends that AK-E’s evidence of the offending against him did not support the finding of a propensity to act in an opportunistic or brazen fashion.

16. In particular, the appellant emphasises that in the case of CK-E and BS, the appellant was alleged to have suddenly and forcibly removed them from common areas of the home by covering their mouths before taking them into a secluded area so that he could abuse them.  It is submitted that this is in marked contrast with the circumstances surrounding the offending alleged against AK-E, with whom it is said the appellant had fostered a relationship through a mutual interest in video game playing over several years.  The appellant emphasises that there was an element of grooming in the case of AK-E, such that the offending could not be seen as exhibiting the feature of opportunism or brazenness associated with the conduct alleged in respect of CK-E and BS. 

17. Accordingly, the appellant submits that the conduct involving AK-E did not support a particular disposition or propensity of the kind that the judge considered assisted in proof of the offending against each of the other complainants, and that the evidence of the conduct against CK-E and BS admitted to establish a disposition or propensity of that kind was not of sufficient probative value to justify its use in proof of the allegations concerning AK-E.

18. The appellant is correct to submit that there were material differences between the accounts given by CK-E and BS, on the one hand, and the account given by AK-E, on the other.  The offending against AK-E was undertaken in circumstances where there was an independent reason for AK-E’s presence in the appellant’s bedroom.  In three of the four instances described by AK-E, the offending by the appellant was undertaken after AK-E had requested to play a particular video game.  There was, to that extent, an element of bargaining, as the appellant submitted on appeal.

19. But the significance of this feature of the offending against AK-E should not be overstated.  The evidence suggested that the appellant had an interest in gaming.  That a young boy would share that interest is not surprising.  There was little in the evidence to suggest that the opportunity which the shared interest in gaming presented to the appellant to offend against AK-E was cultivated for that purpose.  The shared interest in gaming presented the appellant with an opportunity to offend against AK-E in the appellant’s bedroom without the need for the appellant to take steps physically to isolate AK-E or manoeuvre him into his bedroom.  But that does not mean that the offending against AK-E did not involve an element of opportunism.

20. Although there was evidence of gaming in the shed during which AK-E had sat on the appellant’s lap and the appellant’s movements might suggest he was obtaining sexual gratification from him doing so,[89] the appellant’s conduct on the first particularised occasion of offending did not involve a gradual escalation in conduct but a relatively sudden and serious course of overtly indecent interactions.  Importantly, when AK-E sought to stand up and pull his pants back up, the appellant used a degree of force to restrain AK-E, before making a violent threat in the event that AK-E told anyone what had occurred.  This is not suggestive of the appellant having engaged in an extensive period of grooming which might have conditioned AK-E to submit to, or not question, the offending.  The element of bargaining on the subsequent two occasions should be understood as having occurred in a context where that threat had earlier been made, and where a degree of force had been used.  On AK-E’s account, the appellant also restrained him from leaving the room on two of the subsequent occasions. 

    [89] The trial judge ultimately decided not to place any weight on the evidence in relation to these earlier interactions: Reasons at [181].

21. Moreover, the finding of a relevant propensity or disposition by the trial judge was not so much focused upon the degree of opportunism (and associated force); it was the fact that the risk of detection associated with the conduct against each complainant was indicative of a strong desire to offend against young children.  That is to say, the evidence of the complainants tended to show that the appellant’s desire to obtain gratification from sexual acts with or towards young children was such that he was prepared to take the risk that his conduct would be detected either in the course of commission or by a subsequent report to a family member.

22. In that respect, there is little reason to distinguish the offending against AK‑E from the offending against the other complainants.  It was submitted on appeal that, but for one occasion, the offending would occur when the two of them were the only people present in the house.  However, of the four occasions described by AK-E, there was only one in respect of which he positively suggested that others were not present in the home – the second of the four occasions described earlier.  In respect of the fourth, the presence of someone at the door suggests that at least one other person was home.  As to the first and third occasions described earlier, AK-E’s evidence was effectively neutral on the question of whether others were at home or might be expected soon to return.  Since it is apparent from the evidence that a number of family members either lived in or visited the Salisbury East home, and considering that there were a number of family members to whom AK-E might subsequently have complained, it can be said that the offending against AK‑E carried a high risk of detection.

23. As well, the fact that some physical force was deployed in connection with the offending against AK-E, as it was in respect of CK-E and BS, adds to the capacity of the evidence to show a propensity to engage in opportunistic conduct notwithstanding a high risk of detection.  That the appellant was required to restrain AK-E from getting away from the appellant serves to highlight that the appellant could not be assured that AK-E would not, after removing himself from the appellant’s presence, report his conduct to others or otherwise exhibit distress of a kind that might lead to the detection of his conduct.

24. The nature of the offending against AK-E was not of an inherently lesser order of seriousness than the conduct alleged by CK-E or BS, and noting the repeated instances of abuse described by AK-E, taken at its highest, the evidence was strongly probative of a preparedness to sexually abuse young relatives.

25. In those circumstances, particularly when considered together with the other evidence, the evidence of AK-E supported a finding that the appellant had a particular propensity or disposition to offend against young relatives notwithstanding a relatively high risk of detection. 

26. That is reflective of a desire to obtain sexual gratification from young children that was sufficiently strong as to dispose the appellant to act in a way which posed a significant risk to his own liberty, not to mention the loss of the support of his family.  A propensity of that kind strongly supports the proof of the charged offences, particularly where the inherent improbability of the accused acting in the way alleged by the complainants was a matter that inevitably arose in considering whether those allegations were proved beyond reasonable doubt.

27. The evidence of AK-E was therefore strongly probative of the appellant’s guilt of the conduct alleged against him in respect of CK-E and BS.

28. We also consider that the particular propensity or disposition which the appellant accepts was demonstrated by the evidence of CK-E and BS was strongly probative of the appellant’s guilt in relation to AK-E.

29. We will return to the question of s 34P(2)(a) after a consideration of the improbability of similar account use.

    Probative value in demonstrating improbability of similar accounts

30. Each of CK-E and BS described occasions on which, whilst present in a common area of the Salisbury East residence, the appellant covered their mouths in the course of carrying or otherwise manhandling them into his bedroom, whereupon he sexually abused them.  CK-E also described an occasion at her home, and also in the ensuite at the Salisbury East residence, where the appellant had covered her mouth with his hand.  The appellant emphasised that these features were absent from AK-E’s account.  AK-E did not describe being pushed or carried into a location where he was abused, and nor did he describe the appellant covering his mouth. 

31. The similarities identified between the accounts of CK-E and BS, and absent from the account of AK-E, are indeed striking.  However, the strength of the argument for cross-admissibility as between the accounts of CK-E and BS should not distort a consideration of whether there were otherwise relevant similarities between the accounts of AK-E and the other complainants.

32. The similarities relied upon by the trial judge included that the offending against each complainant was opportunistic, took place quickly at the instigation of the accused and in the main occurred when there were other people present in the house. 

33. In our view, it was correct to consider that each complainant gave an account of conduct which could be described as opportunistic and as carrying a significant risk of detection. 

34. That said, to some extent, a level of risk of detection would attend almost any account of offending against a young child.  Because the appellant, although an adult, was not living independently, it would not be particularly surprising that an accusation of wrongdoing against him by a person familiar with those circumstances would be characterised by a risk of detection.  Put another way, allowing for the possibility that these complainants might have concocted or imagined allegations of wrongdoing by the appellant, it may not be surprising that they would describe interactions on occasions where other family members might have been present or nearby.  That consideration diminishes, to some extent, the potency of that similar feature in the narrative accounts of the complainants. 

35. However, even making allowance for that, one is struck by the common feature in the accounts of AK-E and CK-E that the first overtly sexual contact between the appellant and each of those complainants involved a sudden, serious and brazen episode of offending.  Although there was the background circumstance of the shared interest in gaming that brought the appellant into close and more frequent physical proximity with AK-E than was the case with the other complainants, none of the complainants’ accounts suggest that the appellant took steps in advance of the offending to seek to normalise the conduct which was to come, nor to minimise the risk of an immediate report or maximise the possibility of a plausible explanation in the event of such a report, by commencing with less serious forms of indecent interaction. 

36. There are other relevant similarities.  Each of AK-E, CK-E and BS described occasions when the appellant caused or sought to cause them to hold and masturbate his penis.  Although of lesser significance, each of AK-E, BS and SS described occasions on which the appellant ceased his conduct towards them when another person was close by or called out.

37. When added to the basal improbability that four complainants might independently fabricate or otherwise make untrue allegations of sexual offending against the same person, the similarities between the accounts of AK-E and the other complainants were of a quality that rendered independent concoction improbable to an extent necessary to give the evidence real probative value in relation to proof of the offending alleged against the other complainants.

38. That is to say, there are features of the accounts of each complainant that exhibit similarities that are greater than one would expect to see in the accounts of four children were they each, for reasons individual to them, to have fabricated or imagined sexual offending against them by the same person.

    Conclusion on admissibility and use

1. Having reached the view that the evidence in question had ‘strong probative value’ in demonstrating a particular propensity or disposition relevant to proof of each allegation, and that the similarities between the accounts were such as to give the evidence of the complainants real probative value in negating the possibility of independent concoction by the complainants, it remains to be considered whether the use of the evidence in those ways was permissible having regard to the requirements of s 34P(2)(a), informed by the consideration in s 34P(3).

2. A question arises whether, for the purposes of comparing the probative value of the evidence with the prejudicial effect it may have, the probative value associated with each of the two uses under consideration is to be cumulated.[90]  The issue was not ventilated in this appeal. 

   [90]   See R v C, CA [2013] SASC 137 at [137] (Nicholson J).

3. Adopting an approach which is favourable to the appellant, we will consider whether the probative value of the evidence sought to be admitted in respect of each use outweighs the prejudicial effect it may have, while recognising that the risk of prejudice (and the inquiry mandated by s 34P(3)) requires a consideration of the directions that may be given or required to be given if the evidence is admitted for multiple uses (and any difficulties that may be created if the directions relating to the different uses could lead to confusion or contradiction).

4. The approach taken by Kourakis CJ in R v C, CA[91] to the question of prejudice illustrates that the risk of prejudice may need to be considered in the broader context of the directions that may be required in respect of other items of evidence.[92] 

   [91]   R v C, CA [2013] SASCFC 137 (Anderson J agreeing).

   [92]   Kourakis CJ considered that the evidence of SG might, on a stand alone basis, have demonstrated a similarity with the accounts of MA and MG, such as to give it strong probative value in the case of the charges against MA and MG.  He considered that although, generally speaking, the nature of the reasoning associated with similar account use is anterior to, and can therefore be kept separate from, propensity reasoning, there was a difficulty arising from the fact that, in that case, the evidence of MA and MG was admissible as demonstrating a particular propensity or disposition relevant to proof of the offending against SG.  In these circumstances, a direction that the impermissible use must be avoided when using the evidence of SG in proof of the offences against MA and MG, would be of questionable efficacy: R v C, CA [2013] SASCFC 137 at [83]-[88].

5. The particular difficulty that was presented in that case is not applicable here,[93] but a more general concern is whether, when a trier of fact is considering engaging in both forms of reasoning, the difficulty in avoiding the simplistic and forbidden form of impermissible general propensity reasoning, or the risk of other potential sources of prejudice, is enhanced.   

   [93]   Given the conclusion provisionally reached that no differential approach should be taken as between the complainants to the question of whether the evidence of a complainant should be admitted for a particular propensity or disposition use (as distinct from an improbability of similar account use).

6. However, in our view, consistently with the observation of Kelly J in R v March, there can be no absolute preclusion against simultaneously engaging in both forms of reasoning.[94]  The reasoning paths are conceptually distinct but they are not logically inconsistent with one another.

   [94]   R v March [2014] SASCFC 54 at [24] (Kelly J, Sulan J agreeing).

7. In our view, the danger associated with entertaining both lines of reasoning in a particular case is principally that the greater the complexity of any task, the greater the risk that an error will be made, or that confronted with such complexity the trier of fact may revert to simplistic and impermissible modes of reasoning.

8. The dangers will be most evident when the similarities that are relevant to the two different reasoning paths differ in important respects, giving rise to the potential for an overestimation of the probative force of one of the uses.  The risks may be heightened where there is a reason to think that one complainant’s account (to a much greater degree than others) might evoke a strong emotional response which may distort or detract from a conscientious effort to separately calibrate the similarities between that account and the other accounts for two distinct purposes. 

9. No doubt mindful of the potential for difficulties of the kind adverted to above, the Victorian Court of Appeal has observed that it ‘would be desirable that the prosecution only rely on the evidence for one purpose, in order to simplify the directions required to be given to the jury, and to simplify the task of the jury’.[95] 

   [95]   Dempsey (a pseudonym) v The Queen [2019] VSCA 224 at [104] (Beach, Kaye and Ashley JJA).

10. Here, the judge’s reasons contain an appropriate self-direction against engaging in the impermissible use, and the reasons show that the two uses were kept separate from reasoning of that kind.  Whilst it will not always be the case, the features relevant to the two distinct uses of the evidence were, in this particular case, essentially overlapping.  The offending described by each of the complainants was serious, but this was not a case in which there was a particular risk that any one complainant’s account would tend to distract from or distort a consideration of the combined strength of the evidence relevant to each count on its merits. 

11. Whilst a judge is not immune from the prejudice that may be engendered by the existence of multiple allegations, the reasons here show that the judge did not allow the existence of a similarity between the accounts or the existence of a relevant propensity to distract from a separate consideration of the strength of the prosecution case on each charged act.  That is demonstrated by the acquittal of the appellant on Counts 3 and 4.

12. The probative value of the evidence for the proposed uses was not required ‘substantially’ to outweigh the prejudicial effect it may have.  The question was simply whether the evidence to be admitted for each such use had a probative value that outweighed the prejudicial effect it may have.  Ultimately, we are satisfied that it did.

    Disposition of the appeal

13. The above conclusion renders it strictly unnecessary to consider whether, had the opposite conclusion been reached, the verdicts in respect of Counts 1, 2 and 5 ought be set aside.

14. Resolving that question would have entailed considering whether, although no positive objection was advanced to the cross-admissibility of the evidence,[96] the fact that the judge’s reasons included a ruling as to admissibility meant there was a ‘decision on [a] question of law’ within the meaning of s 158(1)(b) of the Criminal Procedure Act 1921 (SA) and, if so, whether it could be said to be ‘wrong’ in view of the position adopted by the appellant.

    [96]   See, eg, Kane (a pseudonym) v The King [2024] SASCA 70 at [56] (Doyle JA, David JA agreeing), referring to Hofer v The Queen (2021) 274 CLR 351 at [119] (Gageler J), R v Soma (2003) 212 CLR 299 at [11] (Gleeson CJ, Gummow, Kirby and Hayne JJ) and Johnson v The Queen (2018) 266 CLR 106 at [52] (the Court).

15. It may also have required consideration of the proposition of Nicholson J in R v Jones[97] that even where discreditable conduct evidence is not objected to, thus obviating the requirement for the judge to consider the question of admissibility, its ‘proper use and the directions required by s 34R must still be attended to’.

    [97]   R v Jones (2018) 131 SASR 532 at [28] (Nicholson J, Kourakis CJ and Hinton J agreeing), referred to in Kane (a pseudonym) v The King [2024] SASCA 70 at [63] (Doyle JA, David JA agreeing).

16. Where a particular use has been foreshadowed and not objected to, it may be doubted whether, without more, such a use must be directed against and, in the case of a trial by judge alone, avoided.  In order to demonstrate a miscarriage of justice in such a case it may be insufficient to demonstrate that the use could successfully have been objected to; regard may need to be had to whether the non-objection was the product of a forensic decision to which the appellant should be held.[98] 

    [98]   See, eg, R v Golubovic [2016] SASCFC 144 at [67]-[68] (Blue J, Nicholson and Doyle JJ agreeing), Kane (a pseudonym) v The King [2024] SASCA 70 at [57] (Doyle JA, David JA agreeing), referring to Orreal v The Queen (2021) 274 CLR 630 at [15]-[16] (Kiefel CJ and Keane J).

17. The parties did not advance any detailed submissions in relation to these matters and it is therefore undesirable to express a concluded view about them. 

18. The appeal is dismissed.