J v the Queen (No 2) - [1989] TASSC 37

Serial No 33/1989
List "A"

CITATION: J v The Queen (No 2) [1989] TASSC 37; (1989) Tas R 116; A33/1989

PARTIES:  J
  v
  THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 65/1987
DELIVERED ON:  24 August 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Underwood and Wright JJ

Judgment Number: A33/1989
Number of paragraphs: 97

Serial No 33/1989
List "A:
File No CCA 65/1987

J v THE QUEEN (No 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
UNDERWOOD J
WRIGHT J
24 August 1989

Order of the Court

Direct that judgments and verdicts of acquittal be entered in respect of counts 2, 3, and 5.

Serial No 33/1989
List "A:
File No CCA 65/1987

J v THE QUEEN (No 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ

24 August 1989

This is an appeal and an application for leave to appeal against conviction which was partially determined by orders made by this Court for reasons published on 21 October 1988, Serial No 47/1988. The High Court has set aside so much of this Court's order as directed that there be a new trial and has ordered that the matter be remitted to this Court to complete the hearing and determination of the appeal.

The charges and the verdicts which are the subject of this appeal are as follows:

Count 1    Unnatural carnal knowledge of A in approximately December 1985: not guilty.
Count 2    Unnatural carnal knowledge of B between the 1 September 1986 and 25 September 1986: guilty.
Count 3    Assault of B on 25 September 1986: guilty.
Count 4    Indecent assault of B on or about the 25 September 1986: not guilty.
Count 5    Rape of A on or about the 30 January 1987: not guilty of rape but guilty of indecent assault.
The only grounds now relied upon by the appellant are as follows:
"5That the learned Trial Judge erred in law in directing the jury as he did as to corroboration of the complainant's evidence.
6That the learned Trial Judge erred in law in allowing alleged evidence of similar facts to be led by the Crown."

The error alleged in ground 5 was identified in a supplementary document as follows:
"EThe learned trial judge erred in law in holding that the evidence of one complainant was capable in law of corroborating the evidence of another complaint (sic)."

The court having already held that the convictions on counts 2, 3 and 5 should be quashed, the question now before the court is whether a retrial should be ordered or whether judgments and verdicts of acquittal should be entered instead.

At the time of the trial s136(1) of the Criminal Code read:

"136–(1) No person shall be convicted of any crime under the provisions of any of the foregoing sections of this chapter, or of an attempt to commit the same, on the evidence of the person in respect of whom the crime is alleged to have been committed or attempted, unless the evidence of such person is corroborated in some material particular by other evidence implicating the accused."

The crime charged in count 2 and the crime of indecent assault of which the appellant was convicted upon count 5 were crimes under the provisions of the chapter referred to.

The only evidence which was capable of satisfying the requirements of s136(1) in respect of counts 2 and 5 was evidence which was given by the other complainant of similar acts done by the appellant. Thus an important question which needs to be resolved for the determination of these resumed proceedings is whether upon a retrial A's evidence of the appellant's acts in relation to her would be admissible in respect of count 2 and whether B's evidence in respect of the appellant's acts in relation to her would be admissible in respect of count 5. Apart from the issue of whether that evidence would be admissible as similar fact evidence a preliminary question arises as to whether those parts of the evidence of the complainants which relate to the charges in counts 1 and 4 would be rendered inadmissible by the fact that the appellant was acquitted of those charges.

In Kemp v The King (1951) 83 CLR 341 the appellant had been indicted upon three counts of indecent assault upon the same male complainant each count relating to a different occasion. The appellant was acquitted on the first and second counts and was convicted on the third count. That conviction was quashed on appeal and a new trial was ordered in respect of the third count. On the second trial the complainant gave evidence of similar acts by the accused which included the acts which were the subject of the first two counts upon which the appellant had been acquitted. The judgment of the High Court comprising Dixon, Williams and Webb JJ was given by Dixon J who said at pp342 and 343:

"The decision of the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya (1950) AC 458, at p479 is decisive to show that the prisoner must be taken to have been innocent of the charges covered by the two first counts of the indictment for such a purpose as that for which the evidence was tendered. As to the effect of issue estoppel based upon acquittal see also R v Wilkes (1948) 77 CLR 511, at pp518, 519.
The boy may have been uncertain as to dates and confused. But it seems to us to be clear upon the evidence that the occasions covered by the indictment were at least included in the evidence of similar acts which was tendered and received. Evidence of these occasions was, in our opinion, inadmissible. The evidence was admitted after objection. Moreover, no direction was given to the jury enabling them to understand that they should discard any evidence covering the same matters as were the subject of the two first counts. The conviction, therefore, in our opinion, cannot be supported."

In Garrett v The Queen (1977) 139 CLR 437 the appellant was convicted of rape. The appellant admitted having intercourse but claimed the complainant had consented. At his trial evidence was given by the complainant that on an earlier occasion the appellant had had intercourse with her without her consent and that as a result he had been charged with rape but acquitted. In the course of giving reasons for judgment with which Stephen, Mason and Jacobs JJ expressed their agreement, Barwick CJ said at p445:

"The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, if the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible."

n The Queen v Storey (1978) 140 CLR 364 the respondents had been convicted of rape. It was admitted that intercourse had taken place but it was claimed that the complainant had consented. The complainant gave evidence that earlier in the evening the respondents had forced her to leave a railway station and accompany them to a hotel. One question before the High Court was whether that evidence had been rendered inadmissible by virtue of the fact that the respondents had been acquitted of abduction at an earlier trial at which it was claimed the sole issue had been whether the complainant had been forced to leave the railway station. The court was divided on the question of whether and if so the extent to which the doctrine of issue estoppel is applicable to criminal proceedings. However, although all members of the court held that in certain cases evidence otherwise relevant will not necessarily be rendered inadmissible by the fact that it might tend to show that the accused was guilty of an offence of which he has been acquitted, no member of the court acceded to the submission made by the Crown that the court should overrule the decision in Kemp v The King although Barwick CJ, Gibbs J, Mason J, and Aickin J were of the view that that case should not be regarded as being based upon the doctrine of issue estoppel. As well all members of the court save for Murphy J expressly or implicitly accepted the principle applied in Garrett v The Queen (supra) that independently of the doctrine of issue estoppel the Crown is precluded from seeking to show that an accused person is guilty of an offence of which he has previously been acquitted. See Barwick CJ at 372, Gibbs J at 385 and 387, Mason J at 396, Jacobs J at 408 and Aickin J, with whose reasons Stephen J agreed, at 415. In my opinion Storey's case can be regarded as affirming the proposition which follows from the principle which was referred to in Sambasivam v Public Prosecutor, Federation of Malaysia [1950] AC 458 at 479 and applied in Kemp's case and Garrett's case that "evidence will be inadmissible if its only relevance is to show that the accused is guilty of an offence of which he has been acquitted", per Gibbs J in The Queen v Storey (supra) at 387.

In this case as in Kemp v The King (supra) the evidence of A relating to the events which were the subject of count 1 and the evidence of B relating to the events which were the subject of count 4 could on a retrial only be "tendered as evidence of similar facts, facts which were only similar if the accused had been guilty of the earlier offence" and as such would clearly be "a challenge to the earlier acquittal" per Barwick CJ in The Queen v Storey (supra) at p374. I hold therefore that on a retrial the evidence of A in respect of the events which comprised count 1 and the evidence of B in respect of the events which comprised count 4 would not be admissible.

he question then arises whether the remaining evidence of the complainants would be admissible as similar fact evidence.

he Crown relied upon the following "striking similarities" between the evidence of A and B in support of its contention that A's evidence was admissible as corroboration of B's evidence in respect of count 2:

1         The crime consisted of anal intercourse.
2         The crime occurred in a shed.
3         The door was locked.
4         The appellant made the complainant stand on a box or a ladder.
5         The appellant looked out of a window whilst committing the crime.

The whole of the evidence given by A was so closely bound up with the evidence she gave in respect of count 1 that it is arguable that none of it would be admissible on a retrial or, alternatively, that a proper exercise of the trial judge's discretion would require its exclusion. However, even if the evidence not relating to count 1 could be isolated from the rest of her evidence and were not excluded, in my view it could not possibly be regarded as satisfying the criteria which would make it admissible as similar fact evidence. It was imprecise and lacked specificity and, as well, one of the incidents which it appears that A was describing possessed only feature 1, whilst the other incident or incidents she appeared to be describing only possessed features 1, 2 and 3 which could not be characterised as sufficiently striking or unusual to render evidence of them admissible.

B's evidence apart from that relating to count 4 amounted to no more than a fairly vague description of an incident involving the appellant placing his penis on or near her vagina which also could not be regarded as satisfying the requisite criteria to render it admissible as similar fact evidence in respect of count 5.

I conclude therefore that A's evidence of the appellant's acts in relation to her would not be admissible in respect of count 2 and that B's evidence in respect of the appellant's acts in relation to her would not be admissible in respect of count 5.

In exercising my discretion whether or not to order a new trial I am influenced by the following factors:

1As no direction was given to the jury that in the event of their acquitting the appellant on counts 1 or 4 they could not rely upon any findings which impugned those acquittals when they were considering their verdicts upon counts 2 and 5, there exists a real risk either that the jury improperly convicted the appellant upon counts 2 and 5 without being satisfied that the complainants' evidence was corroborated or that they made improper use of the evidence given by the complainants in respect of counts 1 and 4.
2Since the trial s136 of the Criminal Code has been repealed and replaced by a new section which, in essence, provides that a judge shall not give a warning as to corroboration unless he is satisfied that the warning is justified in the circumstances. It may be arguable that on a retrial the provisions of the old s136 should still apply, in which event the absence of corroborative evidence would make an order for a retrial inappropriate. However, even if the new s136 were held to apply on a retrial, I would still be of the view that a retrial should not be ordered as it would seem to me to be unjust that a retrial should be ordered merely because of the fortuitous circumstance that before this appeal could be determined the law was changed so that the requirements for conviction were rendered less stringent than they were when the appellant was first tried.
3Substantial and difficult questions as to what evidence was admissible and what evidence should be excluded in the exercise of the trial judge's discretion would arise on a retrial.

As to the relevance of the above considerations see Newell v The King (1936) 55 CLR 707; Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627 at 630 and R v Jensen and Ward [1980] VR 194 at 206.

In my opinion verdicts and judgments of acquittal should be entered in respect of counts 2 and 5.

In view of the length of time which the appellant has already spent in prison I do not think that a retrial on count 3 would be warranted and in my opinion a verdict and judgment of acquittal should be entered in respect of that count also.
File No CCA 65/1987

J. v THE QUEEN (NO. 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

UNDERWOOD J
24 August 1989

The appellant was tried on an indictment which alleged that:

1In December 1985 he had unnatural carnal knowledge of his daughter A [then aged 14 years].
2In September 1986 he had unnatural carnal knowledge of his daughter B [then aged 12 years].
3In September 1986 he assaulted B by punching her [the Crown case was that this crime was committed in conjunction with the crime charged by the second count].
4In September 1986 he indecently assaulted B by placing a finger or fingers into her genitalia.
5On 30 January 1987 he raped A.

The appellant was acquitted on the first and fourth counts but convicted on the second and third. On the fifth count he was convicted of the alternative crime, indecent assault. He was sentenced to 5 years imprisonment.

An appeal against the convictions and an application for leave to appeal against sentence was lodged. There were numerous grounds of appeal. On 21 October 1988 this court allowed the appeal and ordered that the convictions and sentence be quashed and that there be a new trial of the appellant. The court considered only two grounds of appeal namely:

"1That the learned trial erred in law in that he failed to decide for the purposes of determining the admissibility of the similar fact evidence of the complainants whether there was:
(a)any possibility of, or alternatively
(b)a real chance

of conspiracy between the complainants Toni Maree Jones and Veronica Lee Jones.
2That the learned trial judge erred in law by admitting into evidence a prior statement by Toni Jones."

Specifically, the court did not consider grounds 5 and 6:

"5That the learned trial judge erred in law in directing the jury as he did as to corroboration of the complainants' evidence in holding that the evidence of one complainant was capable in law of corroborating the evidence of the other complainant.
6That the learned trial judge erred in law in allowing alleged evidence of similar facts to be led by the Crown."

Special leave to appeal to the High Court against the order directing a new trial was granted and the appeal allowed. The High Court held that this court had not completed the determination of the appeal in that a determination favourable to the appellant on either grounds 5 or 6 would have entitled him to an order of acquittal (except presumably on count 3, assault on B). The order of the High Court was that the appeal be allowed in part and that there be set aside so much of the order of the Court of Criminal Appeal as directs that there be a new trial and the matter be remitted to the Court of Criminal Appeal to complete the hearing and determination of the appeal.

The appeal is now before this court for determination in accordance with the terms of that order. At the resumed hearing, learned counsel for the appellant expressly elected to rely on grounds 5 and 6 only.

Ground 6

The learned trial judge determined substantial questions of admissibility on statements in the Crown papers and before the trial began. It is clear from his Honour's ruling on the admissibility of similar fact evidence that the contents of those papers bore little resemblance to the evidence later adduced at the trial.

At the relevant time the Code, s136(1) provided:

"No person shall be convicted of any crime under the provisions of any of the foregoing sections of this Chapter or of an attempt to commit the same, on the evidence of the person in respect of whom the crime is alleged to have been committed or attempted, unless the evidence of such person is corroborated in some material particular by other evidence implicating the accused."

With respect to count 5, the learned trial judge directed the jury to acquit on the charge of rape and consider only the alternative of indecent assault. Thus, the lawful conviction of the appellant on counts 2 and 5 depended upon there being evidence capable in law of corroborating the commission of the crime charged or its alternative.

If the evidence of one complainant was not admissible as similar fact evidence to corroborate the evidence of the other complainant the provisions of s136(1) had not been satisfied and the appellant is entitled to an order of acquittal on all counts except count 3.

In our reasons for making the order for a new trial we held that, in accordance with Hoch v The Queen (1988) 81 ALR 225, the circumstances of the case called for an inquiry into the possibility of concoction between the two complainants and that the failure of the learned trial judge to so enquire constituted an error of law. (That failure occurred before the decision in Hoch had been handed down). On the resumption of the hearing of the appeal, learned counsel for the appellant submitted in support of ground 6 that, apart from any possibility of concoction, the evidence of each complainant lacked those characteristics necessary to qualify it for admission as similar fact evidence in accordance with the principles laid down in cases such as Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528 and R v Boardman [1975] AC 421. The submission was that an inquiry to determine the possibility of concoction was only necessary if the evidence bore the characteristics referred to in those cases.

Evidence was admitted from both complainants of facts which tended to prove the commission of the crimes charged and of facts of allegedly similar events but not the subject matter of any charge. In the case of B representations made by her in a statement given to the police on 29 September 1986 were admitted into evidence pursuant to the provisions of the Evidence Act, s81B. That statement is set out in full in the reasons for judgment delivered earlier by this court. In that judgment we held that a condition precedent for the admissibility of a representation under s81B was proof that the representation had been made at a time when the facts were fresh in the memory of the witness. We said at p16 of our reasons for judgment:

"Whether a note was made when facts were fresh in the witness' memory is a question of fact and degree. See R v Simmonds & Ors. (1967) 51 Cr App R 316 at p330. The question of freshness is determined by reference, almost exclusively, to the time elapsed between the occurrence of the events and the making or verification of the note."

We held that at least the last sentence, "Dad has put his snake in my backside before but I can't remember when it was", by its own terms did not satisfy the criterion for admissibility and as a result prejudicial evidence had been wrongly admitted. The freshness of the other representations in the statement were not considered by this court as it was unnecessary to do so at that time.

Ground 6 of the notice of the appeal must be considered on the evidence which was properly admitted. With respect to the representations admitted pursuant to s81B, as no direct evidence on the issue of the freshness of the witness' memory was adduced, only those parts which, by their terms, satisfy the condition precedent for admission should be taken into account on a consideration of the issue raised by this ground. I turn to consider the evidence.

Not surprisingly, both complainants were more than a little hesitant in giving their evidence. I set out the essence of A's evidence.

Count 1 (Acquitted)

There was a shed in the garden of their home at Risdon Vale. On an occasion not specified, A was in the shed with her father. Her father shut the door and locked it. He told her to stand on a little wooden box. "He put his thing up my backside". "It hurt a bit".

Count 5

On 30 January (presumably in 1987) A went to the police station. Before she went "Dad made me do sex with him". A was unclear whether her father put his penis on or in "her thing". She could not remember if her clothes were on or not. Her father ejaculated on her. The event occurred on the bottom bunk in her brother's bedroom.

Matters Which Were Not the Subject of a Count

Immediately after the last recounted passage of evidence there were these questions and answers:

"Now before that time had your dad done things to you at all before? ... Yes.
What sort of things? ... The same sort of things."

Immediately after the evidence concerning the incident in the shed there followed this exchange:

"Is that the only time that your dad put his thing in your bottom? ... No.
How many other times did it happen? ... Once or twice I think.
And where did it happen those times or that time? ... In the shed.
When was the first time that it happened? ... At Electrona." [about two years earlier in a different house].

Finally, A said that a few days before she went to the police station she was in bed and her father came in and "put his hand near my thing".

I set out the essence of B's oral evidence.

Count 2

Sometime during 1986 B was with her father in the same shed that A had referred to. The door was locked. She was told to get on a ladder. She pulled her trousers down and her father did "something". At this stage the witness failed to respond to questions and her statement was put in evidence. Consequently, there was insufficient oral evidence to sustain a conviction on counts 2, 3 and 4 and no oral evidence which could on any view, provide the required corroboration for the conviction on count 5.

The statement contained in part a description of two events, one stated to have occurred "last Thursday night" and one to have occurred "about three weeks ago or something like that". In the absence of other evidence, of the whole statement only these two accounts satisfy the condition precedent for admissibility prescribed by s81B(1)(c)(i). These written representations were as follows:

Counts 2 and 3

"About three weeks ago, or something like that, we were out in the shed. Dad always tells Mum I have to help. Sometimes we had to tidy up. About seven o'clock we went to tidy the shelves. Dad locked the door from the inside. Dad told me to stand on the ladder.
I was on about two steps up. He pulled my trousers down to me knees and undid his fly. I was facing the ladder. He told me to put me hands flat on the wardrobe that was in front of the ladder. He opened my cheek things of my backside and put his snake in me hole where me backside is. He just pushed it in. I felt it go in and it hurt and I screamed out. He punched me in me side and told me to shut up. I started to cry. He just left it in there and took it out after a long time. He didn't push it in and out. He took it out and I got off the ladder and he had a white cloth wiping white stuff off his snake. He put the cloth in the garbage bin, a yellow plastic one.
He told me to wipe my backside in the toilet. I went to the toilet and wiped myself on toilet paper and there was blood on it. I was sore for a couple of days. He said the same as he always does, 'Don't tell anyone'."

Count 4 (Acquitted)

"Last Thursday night I went to bed around nine o'clock. I share a room with my sisters Veronica and Sonya but Thursday night they slept in the loungeroom with Mum. Mum and Dad haven't been sleeping together. I was asleep and Dad pushed me and woke me up. He told me to get out of bed and pull my pyjama pants down. He only had his underpants on and he took them off. Dad told me to lie on the floor. I laid on the floor between the bunk bed and the single bed and Dad got on top of me and put his snake on the top part of my fanny where hair grows from. He moved up and down. It was pushing on my skin and hurting because his snake was hard. Dad got off me and told me to pull up my pyjamas."

Although the evidence with respect to count 4 was at variance with the particulars pleaded the learned trial judge directed the jury that this evidence could be used to sustain a conviction on count 4. As the appellant was found not guilty on count 4 nothing turns on this.

The issue on the trial was whether the events charged occurred at all. Leaving to one side the diminution of the probative force by reason of the possibility of concoction, the evidence of each complainant only becomes capable of corroborating the other complainant if that evidence "reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience the objective improbability of some event having occurred other than as is alleged by the prosecution" per Mason, Wilson and Gaudron JJ in Hoch's case at p227.

With respect to B's evidence on count 4 it could not be described as having such striking similarities with A's evidence on count 5 that it either had a real bearing on or was highly probative of the issues raised on the trial on count 5. The same observation is made a fortiori with respect to the other evidence given by B. The following passage appears in the judgment of Lord Wilberforce in Boardman at p444:

"The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstances that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s)".

In R v Kelly [1984] 1 Qd R 474 the Queensland Court of Criminal Appeal held that evidence of incest by one daughter was inadmissible on a charge of incest with another daughter. Thomas J said at p476:

"The general principle justifying reception of such evidence depends upon the improbability that a certain series of events would occur in similar circumstances merely by coincidence, in which case such evidence may have probative force."

At the conclusion of his reasons his Honour expressed a general view with which I am in respectful agreement that, "in the normal run of cases evidence of prior acts of a father with daughter B will not be admissible on a charge of incest with daughter A."

Accordingly, I conclude that, even in the absence of the possibility of concoction, there was no admissible evidence capable of corroborating A's evidence on count 5 as then required by s136(1). This court should direct that a judgment and verdict of acquittal be entered on count 5.

The complainants' evidence with respect to counts 1 and 2 is different in that in both cases the accounts contain similarities which can be described as striking. Both described a specific incident of anal intercourse with their father, in a locked shed in the garden during which the complainants were required to stand on an object to facilitate the commission of the crime. Whilst it might be said unfortunately, that sexual impropriety between a father and his daughter is not per se unusual the same cannot be said of anal intercourse between a father and his daughter particularly when the commission of those acts is said to have taken place in very similar and unusual circumstances. Accordingly, again leaving aside the possibility of concoction which can only be determined on a new trial, and subject to the determination of ground 5, I am of the opinion that the evidence of complainant A led with respect to events concerning count 1 was admissible to corroborate the evidence of complainant B on count 2. However, A's evidence not referable to any matter charged was so imprecise in its detail that it could not be said to have the requisite striking similarity and therefore should not have been admitted as either probative of an issue or as corroboration of B's evidence.

Ground 5

It was submitted that, as a matter of law, the evidence of either complainant was incapable of corroborating the evidence of the other. The submission was based on the decision of R v Kehagias& Others [1985] VR 107.

A useful starting point is Manser v The Queen (1934) 25 Cr App R 18 in which the English Court of Criminal Appeal held that the sworn evidence of a complainant could not be corroborated by the unsworn evidence of a child because such evidence itself could not render an accused liable to conviction unless it was corroborated. The need for corroboration of the unsworn testimony of a child of tender years arose from the provisions of the Children's and Young Person's Act 1933 (UK) which contained a provision very similar in its terms to the Code, s136(1). Doubt with respect to the correctness of the decision in Manser was expressed in DPP v Hester [1973] AC 296 a decision which was the subject of careful analysis in Kehagias.

In Hester, Lord Diplock referred to the historical and logical reason for the "rule" that the evidence of one accomplice is incapable of corroborating the evidence of another and expressed the opinion that there was no reason to apply the same "rule" to evidence given by witnesses not likely to act in concert to give a false story but whose evidence requires corroboration for a different reason. At p326 he said:–

"There is no case in the books to support the practice of treating the evidence of one suspect witness as incapable in law of corroborating the evidence of another, except where both suspect witnesses are accomplices in the strict sense of being participes criminis with the accused in the crime with which he is charged. Reg v Campbell [1956] 2 QB 432 is direct authority to the contrary.
I conclude, therefore, that there is not now, and a fortiori was not in 1885, any common law rule of general application that evidence of a witness which is itself suspect for a reason which calls for a warning of the danger of convicting on it unless it is corroborated is incapable in law of amounting to corroboration of the evidence of another witness whose evidence is also suspect for the same or any other reason which calls for a similar warning."

The last part of the above passage is cited in the majority judgment in Kehagias at p114 and followed by the opinion that Hester is distinguishable on the basis that it was concerned with the construction of a particular statutory provision dealing with the requirement for corroboration in the case of young children. Such basis for distinguishing Hester does not exist in the present appeal due to the similarity between the provisions of the United Kingdom Act and the Code, s136(1). Starke and Hampel JJ referred to the general propositions in Hester with respect to corroboration but concluded that they did not apply to the facts of that case. Three men were jointly tried on the indictment. Two were charged with the rape of one female, the third was charged with the rape of another female and one of the accused was charged with aiding and abetting one of the others to commit rape. The offences were all alleged to have occurred at the same time and place and the substantial issue at the trial was consent. From the outline of facts contained in the report of the case it might be inferred that there was occasion to suspect the possibility that each complainant would wish to ensure that the other complainant's evidence was that the intercourse was non–consensual in order to support her own complaint to that effect. Their Honours said at p115 that it was a case:–

"... where two women, both complainants in a case involving sexual assaults allege that they were victims of an assault occurring at the same time and place. In that situation, each of the two complainants may well have a particular motive to support and bolster up the evidence of the other in order to make her own complaint more credible …".

In R v Kilbourne [1973] AC 729 at 747, Lord Hailsham expressed the view that the argument supporting the decision in Manser was fallacious and that the unsworn testimony of a complainant could be corroborated by the unsworn evidence of a child of tender years and vice versa. Lord Hailsham said at p749:

"The witnesses of the several children were ex concessis admissible, and there were sufficient points of similarity in their several pieces of testimony to provide the underlying unity to make their evidence mutually probative within the meaning of the first passage from Rex v Sims [1946] KB 531 and the Scottish authorities quoted above. There is no general rule that witnesses of a class requiring corroboration cannot corroborate one another if otherwise admissible and relevant as probative. The distinction adumbrated in Rex. v Sims and Reg v Campbell [1956] 2 QB 432 on which the Court of Appeal founded their decision is logically untenable, as is the 'circular argument' doctrine enunciated in Rex. v Manser (1934) 25 Cr App R 18 and disapproved in Reg v Hester [1973] AC 296. The rule regarding inability of fellow accomplices to corroborate one another does not apply in this case."

The present case is not one involving the question of corroboration by accomplices or persons who are in participes criminis in respect to the actual crime charged. In such cases, the danger of concoction in order to pass the blame to the accomplice provides good reason for the proposition that the evidence of such persons cannot constitute corroboration. See R v Webbe and Brown [1926] SASR 108; R v Lamb [1975] Qd R 296; Medcraft v The Queen [1982] WAR 33.

It is clear that the risk of acting in concert to present a false story underpinned the reason for the view expressed by the majority in Kehagias' case although their Honours did state that, as a general proposition, the existing law was that the evidence of two complainants in a sexual case could not amount to mutual corroboration.

In the later case of R v Rosemeyer [1985] VR 945 the learned Chief Justice accepted that Kehagias was authority for the general proposition that in sexual cases the evidence of one prosecutrix cannot corroborate the evidence of another. Murray J expressly disapproved of Kehagias as authority for such a general proposition (p952) and Ormiston J, after an extensive and illuminating historical survey of the law of corroboration, expressed doubt as to the correctness of Kehagias on this point but said he felt constrained to follow it as the critical error was held to be the failure to state in absolute terms that one complainant could not corroborate another. However, his Honour did observe at p969 that the majority judgment in Kehagias was in effect referring to "an invariable practice" in the State of Victoria.

The views expressed in the majority judgment in Kehagias and the views of the members of the court in Rosemeyer were discussed in a joint judgment of Murphy, Brooking and Hampel JJ in R v Williams [1988] VR 261 at p268 et seq The court avoided re–affirming the existence of any rule of evidence applicable in Victoria prior to the statutory abolition of the requirement for corroboration in sexual cases, that the evidence of one prosecutrix cannot corroborate the evidence of another. The court said at p269:–
"In our opinion the concern of Starke and Hampel JJ in Kehagias and that of the Chief Justice and Murray J in Rosemeyer that if stated at all the concept of corroboration be stated 'correctly' or 'accurately' was a concern that anything said to juries should not be inconsistent with the decided cases concerning corroboration in so far as they contain judicial decisions as to what is or is not probative with regard to a given issue."
The same view of the ratio decidendi of Kehagias was later expressed by the Victorian Court of Criminal Appeal in Bizumic v The Queen (1986) 23 A Crim R 163. Fullagar J said at p164:–

"In my opinion, the ratio decidendi of Kehagias is the proposition of law that if a judge, after 1 March 1981, embarks on warning a jury that it is unsafe to convict the accused of a sexual offence on the uncorroborated evidence of the person with or upon whom the offence is alleged to have been committed, he is obliged to indicate adequately and correctly what corroboration is as a legal concept, and he cannot give to the jury erroneous examples of evidence which can in the case constitute corroboration. He should give at least some example of corroboration existing in the evidence, and the example should be correct in law."

See also Pahuja v The Queen, (1988) 49 SASR 191 at p196.

Accordingly, I am of the opinion that Kehagias cannot be regarded as authority for the general proposition that the evidence of one complainant in a sexual case is incapable of being corroborated by the evidence of another complainant. Such a proposition has no sound historical basis (see Ormiston J in Rosemeyer) and is contrary to the opinions expressed in R v Kilbourne (supra) and DPP v Hester (supra).

Although there may be cases in which it might be said that the evidence of one prosecutrix lacks the essential quality of independence from the evidence given by another, such evidence would in any event be inadmissible on the basis expressed in Hoch v The Queen (supra).

On 21 October 1988, this Court quashed the appellant's convictions and sentence on counts 2,3 and 5 and ordered a retrial. The order for retrial was set aside by the High Court. I have already expressed my view that there was no admissible evidence capable of corroborating A's evidence on count 5, and the appellant is entitled to a judgment and verdict of acquittal on that count. It remains to consider what order should now be made with respect to counts 2 and 3.

The Code, s404(1) provides:

"On any appeal the court may, either of its own motion or on the application of the appellant, order a venire de novo or new trial at such time and place as it thinks fit, if the court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a veneri de novo or new trial than by any other order which the court is empowered to make."

The power given this Court by that subsection calls for the exercise of a discretion. The judgment of the court in DPP (Nauru) v Fowler (1984) 154 CLR 627 contains the following passage at p630:

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. ... Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused."

In R v Bailey [1956] SASR 153 the court held at p162 that in the exercise of this discretion it is appropriate to ask:

"First, what is it likely that the jury would have done if the trial had followed the due course of law, with an accurate direction? and, secondly, what are the probabilities with respect to the result in the event of a new trial?"

See also Clemenesha v The Queen [1978] WAR 193 at p201.

In R v Leek [1969] SASR 172 the court held that if there is evidence upon which a jury could reasonably convict and might not improbably convict, the interests of justice generally demand an order for new trial unless there are some particular circumstances surrounding the accused which would make such an order unjust. However, where the case against the accused is weak and a jury likely to acquit a court's discretion might properly incline towards refusing to order a new trial.

Upon the resumed hearing of this appeal the learned Director of Public Prosecutions conceded with respect to count 2, that the only evidence given at the trial capable of providing the corroboration required by s136, was that given by the other child complainant. For the reasons expressed above, only that part of this evidence which tended to prove the commission of the crime charged by count 1 bore the characteristics necessary to qualify it as similar fact evidence and therefore, subject to the possibility of concoction, admissible to provide the necessary corroboration. The appellant was acquitted on count 1. On a retrial that evidence, adduced to prove the commission of the crime of which the appellant has been acquitted, would be inadmissible. See Kemp v The King (1951) 83 CLR 341; Garrett v The Queen (1977) 139 CLR 437; Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458.

The appellant's trial concluded with the verdicts on the 29 June 1987. By the Criminal Code Amendment (Sexual Offences) Act 1987, which came into operation on 26 November 1987, s136 of the Code was repealed. If a retrial on count 2 were ordered a question would arise as to whether the appellant could be convicted in the absence of corroborative evidence. This question was considered by Wright J in Carrick v J 143/1988. Cf Attorney–General's Reference No 11988 (1988) 49 SASR 1. It is presently under consideration on an appeal to this Court, Rodway v The Queen, in which judgment has yet to be delivered.

However, in my opinion, it is unnecessary to consider this question in order to determine the appeal. The provisions of s136 were in force at the time of the appellant's trial and his conviction on count 2 could not then have been secured without proof of the facts constituting the crime charged by count 1. On a retrial, evidence of those facts would be inadmissible and the Crown case thereby considerably weakened. The appellant's conviction would almost certainly depend upon the Crown being able to establish that corroboration, necessary for a conviction at the first trial, was no longer necessary by virtue of a change in the procedural law after the conclusion of the first trial. In these circumstances an order for a retrial would, in my view, be unjust to the appellant. This leaves count 3, an assault alleged to have occurred during the commission of the crime charged by count 2. Aside from the practical difficulties of trying this count in isolation from count 2, the appellant has already spent a considerable period in gaol serving the sentence imposed on 1 July 1987 and which was set aside by this court on 21 October 1988.

The Code, s402(3) directs that, subject to the special provisions of ch44, "The court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered." I would finally determine this appeal by directing a judgment and verdict of acquittal on counts 2, 3 and 5.
File No CCA 65/1987

J v THE QUEEN (NO 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

WRIGHT J
24 August 1989

This appeal has been remitted to this Court by the High Court of Australia for further consideration on the basis that a favourable determination of some outstanding grounds of appeal may justify the acquittal of the appellant on counts 2 and 5 without proceeding to a retrial. Counsel for the appellant has elected to proceed only on Grounds 5 and 6 of the Notice of Appeal.

It is plain from Hoch v The Queen (1988) 62 ALJR p582 that in a case such as this where the Crown seeks to lead evidence of similar facts for the purpose of establishing that one or more of the crimes alleged against the accused actually occurred, it is necessary that the Court dealing with the application to admit such evidence should have a clear perception of the factual issue to which such evidence is directed. The issue here was not identity as is frequently the case; it was whether or not the indecent acts alleged to constitute the crimes contained in the indictment ever occurred at all. In short, it is necessary to consider whether the evidence of one girl as to indecent activities allegedly perpetrated by the accused was so strikingly similar or formed part of such a plainly discernible system or pattern that the acceptance of her evidence rendered it highly improbable that the evidence of the other girl was incorrect. As the High Court said in Hoch per Mason CJ, Wilson and Gaudron JJ at 583:–

"Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies;"

Their Honours continued at p584:–
"In Sutton (at 564) Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused."

They also said:–
"In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view – viz joint concoction – is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.
Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction."

Similar views were expressed in the joint judgment of Brennan and Dawson JJ at p586 where their Honours said:–
"The distinction between mere propensity on the one hand and 'system' or non–innocent association on the other seems extremely fine and there may be little distinction between evidence tending to prove the truthfulness of a complainant's evidence and evidence tending to show that the accused was likely to have committed the indecent act to which the complainant testifies. It is not necessary to dwell on these distinctions in this case, for it is not disputed that, if there were no real chance of a conspiracy among the complainant boys, their evidence would have been admissible on all counts. But it is clear that the possibility of a conspiracy is critical to the assessment of the force of each boy's evidence to prove a system or to rebut a defence of innocent association or to confirm the truthfulness of the evidence of another boy. Admissibility of evidence of this kind depends not only on similarity between the acts which the prosecution seeks to prove but, more importantly, on the non–existence of 'a cause common to the witnesses'". (My italics)

This Court has already considered whether or not there was sufficient material before the trial judge to indicate the possibility of concoction between the two girls and our conclusion was that as that issue had not been properly determined by the trial judge it was not a matter upon which we ourselves could reach a concluded view. Of course if the view was open on the evidence that there was a real possibility of joint concoction, even if an affirmative conclusion could not be reached one way or the other, it would nonetheless be appropriate to exclude the evidence from the jury. In Hoch's case the High Court posed "a possibility of joint concoction" (Mason CJ, Wilson and Gaudron JJ, or "a real chance" or "a real danger of concoction" (Brennan and Dawson JJ) as the foundation for excluding such material.

It does not seem to me that we can conclude that the test in either form is necessarily capable of resolution in favour of the appellant, as his counsel urged upon us, for the simple reason that the issue was not fully canvassed at the trial. Insofar as it was pursued by defence counsel the evidence of the two girls (which was basically consistent) tended to suggest that any opportunity to collaborate, and thus, the possibility of concoction, was fairly remote. Indeed it would be fair to say that an inference of such a possibility may have been stronger if the matter had not been explored in the evidence to the degree that it was. Accordingly, one cannot simply say that the Crown has failed to discharge the onus of disproving the possibility of concoction of the evidence and that therefore the appellant should be successful.

It is not permissible to approach the question of possible concoction "in vacuo" or by simply looking at the relationship between the girls and saying, "well they are sisters and lived for a time after the alleged events in the same house, therefore the possibility of concoction or at least collaboration must exist". The possibility of such a state of affairs must be evaluated on the basis of the whole of the evidence relevant to that issue – including any evidence given by the girls themselves – otherwise the Crown could never disprove the bare possibility of fabrication.

On the other hand the Crown has a heavy onus, indeed an onus to establish a negative proposition beyond reasonable doubt, before such evidence will be admissible in any case in which concoction is a live issue. The short point is that the trial judge must have the opportunity of forming a conclusion on the basis of evidence led upon the voir dire or otherwise before ruling upon such a question.

In Hoch the High Court suggested that a voir dire would not be necessary in all cases but except in the unusual case of a witness having admitted concoction in his or her statement or deposition I have difficulty in seeing how such an inquiry could be avoided. In addressing argument to us counsel for the appellant made it clear that he did not necessarily accept the view which we previously expressed on this matter (see Jones v The Queen No.471988) and he attempted by reference to the transcript of the evidence at the trial to show that there was a sufficient foundation for the Court to say that a real danger of collaboration and concoction existed. For the reasons already expressed I am unable to say that I am persuaded to this point of view.

It therefore seems to me that it is necessary to consider whether it can be said that, leaving aside the question of concoction, the other criteria for admissibility of similar fact evidence have been fulfilled. The test proposed by Deane J in Sutton v The Queen (1982–83) CLR 152 at p557 was as follows "... if the similarity between the evidence of different witnesses as to different offences which the accused is said by them to have committed is so striking 'that they must, when judged by experience and common sense, either all be true, or have arisen ... from pure coincidence' (Boardman [1975] AC, at p444), the 'similar fact evidence' will, in the context of the evidence as a whole, have probative force on the question whether the accused committed the offence with which he is charged which is distinct from its prejudicial tendency as evidence of mere propensity." This passage was referred to with approval by the majority of the High Court in Hoch.

Mr Kable of counsel for the appellant has prepared for us a synopsis of the evidence of the two girls which incorporates most of their evidence as to the crimes charged in the indictment and other sexual activity involving their father. Accepting for present purposes Mr Kable's submission that what the Court must look for before admitting evidence of one girl on the trial of complaints alleging aberrant sexual behaviour with the other, is a striking similarity between the fact sought to be proved and the fact capable of establishment by the similar fact evidence, it is of considerable assistance to recall the words of Brennan J in Perry v The Queen (1982) 150 CLR 580 at 610 where he said:–

"The factors which give probative force to other species of circumstantial evidence give probative force to similar fact evidence. A striking similarity between the fact directly established by the evidence and the fact in issue is a frequent hall–mark of admissible similar fact evidence (see Reg v Boardman [1975] AC 421, at pp441, 444, 462; Markby (1978) 140 CLR at p117). Evidence of strikingly similar facts may be received in an appropriate case though they occurred on only one other occasion, as Reg v Straffen [1952] 2 QB 911 illustrates. But evidence of a series of occurrences exhibiting a more attenuated similarity may be admissible because the frequency of the occurrence of the similar facts enhances the probative force of the evidence, though the necessary probative force would be lacking if the similar fact had occurred but once or on a few occasions only (cf Reg v Scarrott [1978] QB 1016, at pp1022, 1023).
In the almost infinite variety of cases where similar fact evidence is offered in proof of a fact in issue, it is not possible to enunciate a formula which, attributing particular weight to each of the factors which might give probative force to the evidence, determines its admissibility. Lord Hailsham in Boardman [1975] AC at p453 referred to the kind of factor which might usefully guide a judge in determining the question: 'the number of instances involved, any interrelation between them, the intervals or similarities of time, circumstances and the details and character of the evidence'. It is not material to ascertain whether one factor or another gives probative force to the evidence; what is material is whether or not it has that strong degree of probative force which warrants its exception from the primary exclusionary rule."

In Sutton his Honour also said at p548:–

"Admissibility depends on cogency to prove another fact, not upon the likelihood that the jury will convict the accused person if they accept the similar fact evidence: cf Vaitos ((1981) 4 A Crim R 238 at p274). The cogency of similar fact evidence is assessed by reference to its connection with a fact in issue or to a fact in the chain of proof of a fact in issue. The requirement of cogency to prove such a fact is not satisfied by the capacity of the evidence to engender mere prejudice; it must go clearly beyond that to be admissible. Provided the similar fact evidence exhibits a sufficient connexion with the fact to be proved – a question of degree to be assessed by the trial judge – and the fact to be proved is or is relevant to a fact in issue in the trial, the similar fact evidence is admissible."

Having considered the evidence to which we have been referred in light of these pronouncements I have come to the conclusion that there is indeed a striking similarity to be seen in the evidence of the two girls in relation to what may be called "the tool shed incidents".

The appellant was charged with two counts of unnatural carnal knowledge arising out of these incidents. The first count was alleged to have occurred in December 1985 and to have involved A. However on this count the accused was found not guilty by the jury and the Crown, of course, does not seek to interfere with that acquittal. On the third count in the indictment as it was originally drawn (but which subsequently became Count 2 and which I will thereafter refer to as Count 2) the appellant was charged with unnatural carnal knowledge of B in September 1986.

I have come to the conclusion that, generally speaking, this is a proper matter in respect of which A's similar fact evidence would normally be admissible on a re–trial of Count 2. In the first place the very nature of the alleged offences is unusual. Each complainant girl is a daughter of the accused and at the time of the offences alleged in Count 2, B was aged approximately 11 years and 6 months and A was aged approximately 13 years 8 months. They were thus of comparable ages. Whilst allegations of sexual interference and incest between fathers and daughters in early years of puberty are becoming more frequent, it is, in my experience, most unusual for allegations of attempted anal penetration to be made in such cases.

Turning to more specific allegations made in this case one finds that whereas both girls have referred in their evidence to more "normal" sexual activity occurring in the house, the only occasions when anal interference allegedly occurred was in the tool–shed. One also finds, significantly, that in A's case she claims that she was told to stand on a little wooden box by her father and, although she gave scant detail, she said the same activity had occurred on one or two occasions previously. Her evidence suggests that each of those occurrences took place in the shed although there is some ambiguity in her reference to it happening for the first time "at Electrona". It appears to me also to be significant that at the time she says that this was occurring to her, she was about the same age as B was when B claims that she became involved in a similar course of conduct. Another point of some significance is that A claims that her father shut the shed door and locked it before these assaults were made upon her.

In B's case although she does not claim that she stood on a wooden box, she says that she was told to get on a ladder. To my mind the major point of significance in this evidence is not that B was told to get on the ladder whereas A was told to get onto a box, but rather that each manoeuvre can be interpreted as an attempt by the appellant to raise the buttocks of the child to about the level of his penis. B also claimed that the door was locked. Although she did not repeat it in her sworn evidence, her statement to the police (which was admitted into evidence) suggested that a similar activity had occurred on another occasion. However I leave this last mentioned feature out of account because it seems to me that, upon any view of the evidence, this part of her statement to the police would not be admissible in documentary form under s81B of the Evidence Act 1910 and, even though B may be able to give oral evidence with additional detail of that earlier occasion on a retrial "it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case" (DPP v Fowler (1984) 154 CLR 627 at 630).

Comparing the versions given by each girl I find the requisite degree of striking similarity to exist as to the tool shed incidents. However, in respect of the other indecent assault of which the accused was convicted (Count 5) I am unable to find any such similarity in the evidence of the two girls as would enable the evidence of one to be called in relation to the case in respect of the alleged indecencies involving the other. If similar fact evidence in relation to one girl cannot be called upon the trial of the Counts relating to the other, the Crown will be unable to proceed if it is essential that corroborative evidence be given before the accused may be lawfully convicted because there is no other evidence capable of amounting to corroboration as required by s136 of the Tasmanian Criminal Code as it stood at the time of the original trial.

Having concluded that A's evidence in relation to the tool–shed incidents is prima facie admissible upon the trial of the appellant in relation to Count 2, I pass on to consider ground 5 of the Notice of Appeal. It was urged upon us that even if similar fact evidence of the kind discussed was technically admissible at the trial, it would be incapable of providing corroboration within the meaning of s136 of the Code. Mr Kable based this submission upon some of the observations made by the Full Court of Victoria in R v Kehagias Leone & Durkic [1985] VR 107. The majority of that Court came to the conclusion that where complainants in a case involving sexual assaults alleged that they were victims of an assault occurring at the same time and place they cannot corroborate each other because the danger exists that each of the two complainants may seek to support and bolster the evidence of the other in order to make her own complaint more credible.

In R v Rosemeyer [1985] VR p945 Murray J at p952 referring to Kehagias said:–

"With all respect to the majority of the Court in that case I am quite unable to agree with the view that in cases involving allegations of sexual assault the evidence of one prosecutrix cannot corroborate the evidence of another prosecutrix. Whatever may have been the practice of particular judges in warning juries to that effect, in my opinion it is not and never has been the law in England or in Australia that there cannot be mutual corroboration between female complainants in cases of sexual offences".

At p969 Ormiston J agreed with Murray J on this particular issue and I think it is fair to say that in R v Williams [1988] VR 261 Kehagias received less than enthusiastic endorsement. Indeed, I would take the view that in the light of Rosemeyer and Williams, Kehagias may well be regarded as of doubtful authority on this point in Victoria (see also R v Sorby [1986] VR 753).

Until now I have taken it to be clear law according to Reg v Kilbourne [1973] AC 729 and Reg v Boardman [1975] AC 421 that similar fact evidence of the kind now under discussion is or may be corroborative of the commission of the alleged offence in respect of which it has been admitted and, notwithstanding the argument of counsel for the appellant, I remain of the view that the opinion expressed by Murray J in Rosemeyer is correct. This view is also supported by what Mason CJ, Wilson and Gaudron JJ said in Hoch in the third passage from their joint judgment which I have quoted above. In any event it must be doubted whether A's evidence falls into the special category dealt with in Kehagias because neither A nor B claimed to have been present at the same time and on the same occasion when unnatural acts were committed upon both of them.

Were it not for a further matter of fundamental importance to the determination of this appeal I would conclude that, subject to the trial judge being satisfied that there was no real danger that A and B colluded to concoct a false story, the evidence of A in relation to the tool–shed incidents should be admitted as probative of the appellant's guilt on Count 2 and, if so admitted, it would be capable of constituting corroboration in respect of that count for the purposes of s136 of the Tasmanian Criminal Code.

The appellant has been acquitted on Count 1 of the indictment and the only substantial evidence capable of providing corroborative material upon Count 2 is that which was given at the original trial to support the Crown case on Count 1. This being so, it seems to me that such evidence would not be admissible upon the appellant's retrial on Count 2. This principle was clearly established in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 at p479, and was applied in circumstances indistinguishable from the present in Kemp v The King (1951) 83 CLR 341, R v Wilkes (1948) 77 CLR 511 and Mraz v The Queen (No 2) (1956) 96 CLR 62 also support the proposition that when an issue of fact or law has been clearly raised during the course of a trial and the verdict or judgment given thereon necessarily determines that issue, it remains settled once and for all and cannot be successfully impugned in subsequent proceedings.

This does not mean that all evidentiary facts relevant to the original determination are necessarily excluded in subsequent proceedings (see for example, R v Calcedo [1986] VR 499) but in a situation such as the present where the jury's verdict on Count 1 necessarily implies that the appellant did not have unnatural carnal knowledge of A on the occasion of the alleged tool shed incident involving her in December 1985, evidence may not be given in direct contradiction of that result at a fresh trial whether upon a new indictment in respect of A herself, in which case the plea is autrefois acquit, or as similar fact evidence in respect of B, in which case the evidence is precluded by what is in effect a species of estoppel.

Accordingly, as it seems to me that the only other evidence given by A relating to the appellant's sexual molestation of her is not capable of satisfying the test of admissibility under the similar fact rule in respect of proceedings for an offence against B, the only proper course for this court is to allow the appeal in respect of Counts 2 and 5.

The learned Director of Public Prosecutions has submitted that the amendments to s136 of the Criminal Code effected by the Criminal Code Amendment (Sexual Offences) Act 1987 which commenced on 26 November 1987 would govern the course of a retrial of the accused on Count 2. In Carrick v J 111987 I considered the question of whether or not those amendments were procedural or substantive. I concluded that they were procedural only. I have no present reason to resile from that opinion. Consequently it may be said that B's evidence in respect of the offence alleged in Count 2 would not require corroboration upon a retrial and that therefore the appellant could be lawfully convicted thereon on the basis of B's evidence alone. Recent amendments to the statute law in this State which have removed the mischievous tendency for women and children to be treated as witnesses of prima facie doubtful credibility, are welcome reforms which correct past attitudes and misconceptions, but it does not necessarily follow that the appellant should be required to stand trial again and face the possibility of being convicted upon Count 2 on the uncorroborated evidence of B, even on such a serious matter as this.

In Newell v The King (1936) 55 CLR 707, the High Court unanimously took the view that a prima facie procedural amendment could not be allowed to alter the rules applicable to a criminal proceeding where the trial had already commenced before the change in the law took effect. The same process of reasoning must clearly apply to the present case. Whether or not a new trial is technically a fresh proceeding is beside the point. The indisputable fact is that when the appellant was first put on trial the law required corroboration and to change the rules thereafter would seem to me to be unfair. Furthermore, bearing in mind the discretionary nature of an order for retrial upon the determination of a criminal appeal (see R v Wilkes (supra) and, Cheatley v The Queen [1981] Tas R 123) it seems to me that it may be said with considerable justification that the appellant should not be obliged to confront the possibility of conviction again upon a case which will be substantially weaker than it was originally because the Crown is now precluded from leading corroborative evidence. (See DPP v Fowler (supra)).

It may be argued that in declining to order a retrial this Court would be conferring something of a windfall upon the appellant but I think the overriding principle is that the consequences of the appellate process should not be seen to create disadvantage and, therefore, possible unfairness to an accused person who has already faced one trial. If the appellant is sent back for retrial on Count 2 I think this would be the only reasonable perception of the case.

Therefore, on balance, I am of the opinion that there should be no order for a new trial on Count 2. I concur in the reasons expressed by my learned brother Underwood J in declining to order a new trial in respect of Count 3. In my opinion the appropriate orders are that in respect of Counts 2, 3 and 5 verdicts and judgments of acquittal be entered.