Police v A, Mr
[2008] SASC 255
•19 September 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v A, MR
[2008] SASC 255
Judgment of The Honourable Justice Gray
19 September 2008
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - SEXUAL OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY
Appeal against severance order and direction as to separate trials – defendant (respondent) charged with five counts of indecent assault against different complainants contrary to section 56, Criminal Law Consolidation Act 1935 (SA) – complainants all teenage girls associated with defendant’s family – indecent assaults all involved touching of complainant’s breasts or genital region over or through clothing – at hearing before magistrate, defence application for counts to be severed and heard separately was allowed – appeal to Supreme Court pursuant to section 42(1a), Magistrates Court Act 1991 (SA) – whether evidence on any one count cross-admissible between other counts – whether real possibility of concoction of evidence – consideration of principles concerning admissibility of similar fact evidence.
Held: appeal allowed – there is sufficient similarity to demonstrate the relevance and cross-admissibility of evidence of each complainant in regard to all other counts – no real possibility of concoction established – magistrate’s severance order and direction as to separate trials was erroneous and should be set aside – complaint remitted for trial to Magistrates Court.
Criminal Law Consolidation Act 1935 (SA) s 56; Magistrates Court Act 1991 (SA) s 42(1a); Summary Procedure Act 1921 (SA) s 103(2) and s 103(3), referred to.
Phillips v The Queen (2006) 225 CLR 303; Hoch v The Queen (1988) 165 CLR 292; Handy [2002] 59 SCR 908; Sutton v The Queen (1983) 152 CLR 528; Martin v Osborne (1936) 55 CLR 367; Pfennig v The Queen (1995) 182 CLR 461; HML v The Queen (2008) 245 ALR 204; Boardman [1975] AC 421; R v H [1995] 2 AC 596, considered.
POLICE v A, MR
[2008] SASC 255Magistrates Appeal
GRAY J
This is a prosecution appeal against an order made by a Magistrate severing counts on an information, and directing that there be a separate trial on each count.
The defendant, A, MR was charged on information[1] with five counts of indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).[2] The offences are alleged to have occurred between January 1980 and September 1985, and the ages of the alleged victims at the time of the commission of the offences vary between about 13 years and 21 years.
[1] The information provides:
“1.Between the 1st day of January, 1980 and the 31st day of May, 1980 at Beaumont in the said State indecently assaulted EA, a person of the age of 15 years.
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.
2.Between the 12th day of April, 1980 and the 31st day of December, 1980 at Beaumont in the said State indecently assaulted TM, a person of the age of 17 years.
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.
3.Between the 1st day of March, 1982 and the 16th day of August, 1982 at Beaumont in the said State indecently assaulted VC, a person of the age of 17 years.
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.
4.Between the 1st day of January, 1984 and the 31st day of December, 1984 at Glenelg in the said State indecently assaulted DW, a person of the age of 13 or 14 years.
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.
5.On the 20th day of September, 1985 at Tusmore in the said State indecently assaulted KC, a person of the age of 21 years.
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.”
[2] Section 56 of the Criminal Law Consolidation Act 1935 (SA) provides:
“(1)A person who indecently assaults another is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 8 years;
(b) for an aggravated offence—imprisonment for 10 years.
(2)If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.”
The Prosecution Evidence
Before coming to discuss the substance of the appeal, it is appropriate to summarise the proposed prosecution evidence. In doing so, I draw on the prosecutor’s opening. Neither party on appeal sought to place any further material before the Court.
The first count related to EA, a friend of the defendant’s daughter. EA would often stay over at the defendant’s home. It was alleged that when EA was aged about 15 years, in or around January to May 1980, in the course of the day, she was in the dining room of the defendant’s home. The defendant came up behind her, placed his left arm over her left shoulder and around her front. He grabbed her right breast over her clothing. His hand then moved down the side of her body, and he grabbed her groin, rubbing her around the vaginal area. At the same time, the defendant was thrusting his groin into the small of EA’s back and rubbing himself into her. She managed to twist herself out of his grip, and left the room.
The second count related to TM, whose mother was a friend of the defendant’s former wife. The defendant’s then wife was TM’s godmother. The two families would often stay at the other’s home. It was alleged that when TM was about 12 years of age, she was playing a ball game with the defendant’s daughter and the defendant. The defendant encouraged TM to jump up and down continuously. TM gained the impression that the defendant was staring at her breasts. TM recalls that from that time on, the defendant would give her “wet kisses” when he greeted her. When TM was 17 she was sleeping over one night at the defendant’s home, in the defendant’s daughter’s room. It was hot, and she had only a sheet covering herself while she slept. She awoke to find the defendant kneeling over her, with his hand on one breast, over her clothing but under the sheet. The defendant said to TM “I’m just waking you up”. This incident was said to have occurred between April and December 1980. TM never stayed at the defendant’s home again.
The third count related to VC, whose mother was a first cousin of the defendant’s former wife. VC lived in the country and would occasionally stay with the defendant and his then wife when in Adelaide. It was alleged that when VC was aged 17 years, on occasion between March and August 1982, she went to the defendant’s home to speak with his then wife. As VC was leaving, the defendant walked her to her car, as he often did. This time, however, she felt uneasy, as he was walking close to her. This felt unusual – he was so close that she could smell liquor on his breath. They touched arms and shoulders as they walked. When VC arrived at the car, the defendant pushed her back onto the car and pinned her shoulders to the car with both hands. He trapped her arms to her sides and placed his mouth over her mouth, putting his tongue in her mouth. VC tried to pull away, but he put his hand up under her jumper, grabbed her breast and fondled it as he kissed her. VC screamed “What are you doing? Let go of me!”. VC freed her arms and slapped the defendant. She managed to get into her car, lock the door, and drive a short distance before pulling over because she was unable to see through her tears.
The fourth count relates to DW, whose mother was a close friend of the defendant’s then wife. DW’s family would frequently visit the defendant’s home. It was alleged that when DW was about 10 years of age she was staying at the defendant’s home. At one stage while the defendant was showing her a calculator he had purchased, he placed his right arm over her body and over both her arms. He then put his hand through the gap in her nightie, and rubbed her chest and nipple area. She moved away and said nothing. From this time on, whenever the defendant and DW were together he would rub her back in the vicinity of her brassiere. When he greeted her he would give her “wet kisses” and try to kiss her on the mouth. As he was kissing her he would run his hand up and down her back. The alleged incident, the subject of the count, occurred at some time during 1984, when DW was 13 years old. She was walking on the beach with her father and the defendant. The three entered a lift. However, her father exited, leaving her and the defendant in the lift together. Once the door closed, the defendant approached her, and put his hand down the front of her shirt near her breasts. She dropped to the floor to avoid contact. The defendant lifted DW from the floor, holding her arms, and said words to the effect of “don’t be a silly little girl”. He then unbuttoned three or four buttons on her top and placed both hands over her breasts, fondling them. She was not wearing a brassiere. Her breasts were exposed. As he fondled her breasts he said words to the effect of “yes, developing nicely”. The incident lasted a couple of minutes before she buttoned her shirt. She did not tell anyone about this, and continued to associate with the defendant and the defendant’s family. At one stage she was in the defendant’s house cleaning her teeth when the defendant walked in. She said words to the effect of “fuck off” and he left the room.
The fifth count relates to KC, who was a friend of the defendant’s daughter. She first met the defendant and the defendant’s then wife when she was 16, and became close to them, thinking of them as her second parents. It was alleged that on 20 September 1985, when KC was aged 19 years, she was alone in the kitchen with the defendant. The defendant gave her a hug and she felt his hand go up her leg, over her side and onto her breast. He squeezed her breast and said words to the effect of “you don’t really think of me as a dad, do you?”. She said words to the effect of “not anymore, I don’t”, and went to the defendant’s daughter’s bedroom where she stayed for the rest of the evening.
The Ruling
The proceedings came before a magistrate on 31 March 2008. At the outset, counsel for the defendant made an application for severance of the five counts. Counsel submitted that none of the evidence on any one count was capable of being classified as cross-admissible between the counts. It was further argued that there was a possibility of concoction between the defendant’s former wife and daughter and the complainants. Counsel contended that the application should be determined on the proposed evidence. The inherent difficulties for the trier of fact in the consideration and determination of the five counts were emphasised.
The prosecution opposed the application, arguing that the evidence on any one count was cross-admissible on all other counts. It was suggested in particular that this evidence disclosed an underlying unity in the defendant’s course of behaviour that was sufficient to make the evidence cross-admissible.
The Magistrate, having heard preliminary submissions, indicated that she would be assisted by having further detail about the proposed evidence. The prosecutor then outlined the proposed evidence of each of the complainants. The Magistrate also had before her a written record of interview of the defendant. Counsel for the defendant agreed that this formed a satisfactory basis on which the Magistrate could rule.
The Magistrate accepted the defence submission that the evidence of each count was not cross-admissible in respect of all other counts and ordered that the counts be severed and heard separately. In light of this finding, the Magistrate did not consider the question of concoction. The Magistrate observed:
The relevant principles applicable to an application for severance where sexual offences are charged are summarised in the recent case of R v Wallace [2008] SASC 47 where reference is made to Hoch v The Queen, Pfennig v The Queen and other cases.
As stated at para 30 of Wallace:
Where sexual offences are charged on the one Information in respect of more than one complainant and if the admissible evidence on the counts relating to one complainant is not admissible in relation to the other offences charged, separate trials of the offences should normally be ordered.
In the case before me, the prosecution case is that the evidence of the commission of each offence charged is admissible as similar fact evidence of the other offences charged. The criterion for the admissibility of such evidence “is the strength of its probative force … (and) that strength lies in the fact that the 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 alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 294-295.
One of the difficulties I have with the prosecution case is that on the allegations presented, I do not consider that the case involves issues of similar fact. The evidence on any one count will not assist the trier of fact in deciding any other count because there is no real commonality in the manner the defendant allegedly carried out the offences.
Assuming, however, similar fact to be a relevant issue, I cannot discern striking similarities, unusual features, pattern, system and, in particular, an ‘underlying unity’ alluded to by the prosecutor. It is the case (on the allegations) that the defendant indecently assaulted young girls who had visited the family home and were friends of his daughter, [J], and some of those girls had formed a close emotional attachment to the defendant and/or his ex wife, however, those matters do not constitute the type of nexus referred to in the authorities. The alleged “breach of trust” which underpinned many of the prosecutor’s submissions is of no assistance. Nor is the allegation of breast touching. I agree with the defence submission that such matter is an unremarkable feature and, in any event, the touching was more extensive in the case of “EA”, “KC” and “VC”. I also agree with the defence submission that the allegations indicate opportunistic behaviour rather [than] pattern or system.
…
In conclusion, I accept the defendant’s argument that the evidence of each count is not cross admissible in respect of all other counts and order that the five counts be severed and heard separately. It is unnecessary to decide upon the issue of concoction and contamination.
The Appeal
The prosecution has appealed the Magistrate’s ruling pursuant to section 42(1a) of the Magistrates Court Act 1991 (SA). Section 42 outlines the right of appeal from judgments delivered in the criminal division of the Magistrates Court. Section 42(1a) was introduced as an amendment in 2005,[3] to overcome problems consequent upon there being no avenue to appeal interlocutory orders of particular importance.[4] Section 42 relevantly provides:
[3] Section 42(1a) was first inserted by section 18(a) of the Statutes Amendment (Courts) Act 1994 (SA), as from 9 June 1994. By section 12 of the Statutes Amendment (Criminal Procedure) Act 2005 (SA), section 42(1a) was replaced by a new section 42(1a), as from 1 March 2007.
[4] South Australia, Parliamentary Debates, House of Assembly, 20 September 2005, 3469 (Michael Atkinson, Attorney-General).
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a) the judgment stays the proceedings; or
(b) the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c) the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
…
(4)On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b) it may remit the case for hearing or further hearing before the Magistrates Court;
(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6)Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.
In the present case, the prosecution contended that section 42(1a)(b) and 42(1a)(c) were enlivened. Although the prosecution relied primarily on section 42(1a)(b), in my view section 42(1a)(c) is more appropriate in the present proceedings. In particular, there was no evidence or suggestion that there was likely to be an abandonment of the prosecution. In my view there are special reasons why it is in the interests of the administration of justice to have this appeal determined before the commencement or completion of the trial, but it is more appropriate to discuss this after the primary issues in this appeal have been addressed.
Preliminary Observations
It is appropriate to make a number of observations of a preliminary nature. The information contained five counts alleging indecent assault against different complainants, all being offences against section 56 of the Criminal Law Consolidation Act. Each alleged offence is a minor indictable offence and, subject to an election by the defendant to be tried before a jury, will be heard by a Magistrate.[5] In the present case, there has been no election for a jury trial, and the defendant accordingly is to stand trial before a magistrate sitting alone.
[5] Summary Procedure Act 1921 (SA), sections 103(2), 103(3).
In the case of a trial before a judicial officer sitting alone, the possibility of prejudice as a result of propensity reasoning may properly be negatived by that judicial officer. Such an officer being aware of the dangers of propensity reasoning can ensure that such reasoning does not occur, and in reasons for judgment may make it plain that such reasoning has not in fact occurred.
A judicial officer sitting alone may proceed to hear a trial involving a number of counts, with the ability to consider the cross-admissibility of evidence late in the trial. At that time the Court may be in a much better position to assess cross-admissibility. It is a frequent occurrence in trials before juries involving several counts or several defendants, that issues of cross-admissibility may arise, and directions are frequently given as to what parts of the evidence are admissible against a particular defendant. The same process may be followed by a judicial officer sitting alone. Magistrates are familiar with this process.
In the present case, the Magistrate was placed in the invidious position of being invited to determine cross-admissibility on a relatively brief opening by the prosecution. That opening recounted in general terms the evidence of each of the complainants. The Magistrate was also provided with a copy of the defendant’s record of interview, a part of which the prosecution proposed to tender. The Magistrate did not have the advantage of reading the depositions of each of the complainants or of conducting a voir dire hearing. There was no reason why the Magistrate could not have deferred her ruling on cross-admissibility until the closing of the prosecution case, or until the time of addresses.
The ordering of severance and directing separate trials did not preclude, in any one trial, the leading of the evidence of the other complainants. If this course was to be followed, each of the complainants would be required to give evidence on five separate occasions. This would be an undesirable situation.
Had the Magistrate deferred her ruling about cross-admissibility until later in the trial, she would have been able to determine the issue of cross-admissibility with the advantage of the evidence having been led in detail and tested in cross-examination. It would then be open to the Magistrate to conclude that all, some or none of the evidence was cross-admissible.
Relevant Principles
Cross-Admissibility
At the outset, it is necessary to identify the issues at the trial on which the similar fact evidence is to be tendered. This step allows the suggested relevance and probative force on which the admissibility of similar fact evidence depends to be assessed.[6]
[6] Phillips v The Queen (2006) 225 CLR 303 at [26]. See also Hoch v The Queen (1988) 165 CLR 292 at 301 (Brennan and Dawson JJ); Handy [2002] 59 SCR 908 at [69].
In Sutton,[7] Dawson J summarised the general approach to be taken to the reception of a similar fact evidence:
The law does not admit evidence tending to show only that an accused person has committed other offences as proof of the commission of a particular offence with which he is charged. This is because mere proof of the other offences can do no more than demonstrate a criminal propensity and the prejudicial nature of evidence of this kind is far greater than any relevance it might have. To admit such evidence would be to invite the jury to proceed upon suspicion rather than proof. If, however, the evidence which tends to prove the commission of other offences has a sufficient additional probative value beyond showing a disposition to commit crime or a particular type of crime, then the evidence is admissible for that reason and not because it may show a criminal propensity. The cases in which similar fact evidence may have sufficient additional relevance to make it admissible are not confined, but recognized instances occur where the evidence is relevant to prove intent or to disprove accident or mistake, to prove identity or to disprove innocent association.
…
The question which arises with similar fact evidence, which because of its prejudicial nature is treated as a special kind of circumstantial evidence, is not only what direction should be given to the jury but whether the evidence is admissible at all. Having regard to the various expressions which are used to lay down the test of admissibility, it seems to me that a trial judge may find assistance in arriving at the correct test in any particular case by applying the same standard as the jury must ultimately apply in dealing with circumstantial evidence. If in considering the admissibility of similar fact evidence the trial judge concludes that there is a rational view of that evidence which is inconsistent with the guilt of the accused, then he ought not admit it because in those circumstances the evidence cannot be said to have a sufficiently strong probative force. Prejudice may operate where neither logic nor experience necessarily require the answer that the evidence points to the guilt of the accused and that being so the probative force of the evidence will not outweigh or transcend its prejudicial effect.
Such an approach is, I think, consistent with what this Court said in Martin v. Osborne [(1936) 55 C.L.R. 367] in considering the admissibility of similar fact evidence and is certainly consistent with the frequently expressed view that similar fact evidence is dangerous and is to be treated with greater caution than other circumstantial evidence. Of course, the question is ultimately one for the jury but if in order to rule that the evidence is admissible the trial judge must conclude (as it is clear he must) that it has a stronger degree of probative force than would lead merely to the conclusion that it is capable of being regarded, apart from propensity, as pointing to guilt, then it seems to me to follow that before admitting the evidence the trial judge himself must conclude that a reasonable jury would, if they accept the evidence, regard it as being inconsistent with innocence.
This is to say no more than that to be admissible the similar fact evidence must give rise to a clear inference tending to establish an element of the offence charged and must not be reasonably explicable upon some other basis. Notwithstanding that the question is one of admissibility, it is nevertheless a matter of degree rather than deductive logic and it cannot be said that a clear inference arises unless “general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved”. See Morgan v. Babcock & Wilcox Ltd [(1929) 43 C.L.R. 163, at p. 173.]
…
It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately. Despite some suggestion to the contrary in the Court below, Perry v. The Queen [(1982) 150 C.L.R. 580 ] did not require each set of similar facts in that case to be regarded separately in order to arrive at their probative value; it was merely that the impugned evidence, even when viewed in the context of the other evidence, did not have the required probative force.
[7] Sutton v The Queen (1983) 152 CLR 528 at 562-565, 567-568.
As earlier observed, one issue raised on this appeal concerns the cross-admissibility of evidence in circumstances where there are allegations of sexual offending by the one defendant against different complainants. In Hoch,[8] the High Court addressed the circumstance of several complainants making allegations of sexual abuse against the one defendant. Mason CJ, Wilson and Gaudron JJ drew on the observations of Dixon and Evatt JJ in Martin v Osborne,[9] and observed that the basis of admission of similar fact evidence lies in that evidence possessing a particular probative value or cogency by reason that it reveals a pattern of activity, such that if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. Their Honours then addressed the circumstance, as in the present case, where an accused disputes the happenings which are said to bear a sufficient similarity to each other, as to make evidence of one happening in proof of the others. In this circumstance the issue is whether the acts, which are said to be similar, occurred at all. Their Honours discussed the relevance of the evidence in these circumstances and concluded that the evidence was relevant to prove the commission of the disputed acts. They considered that the value of the evidence lay in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity, unless the happenings had in fact occurred. Mason CJ, Wilson and Gaudron JJ proceeded to identify the two functions that similar fact evidence has in cases such as the present:[10]
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.
These observations in Hoch have been approved in the later High Court decisions of Pfennig,[11] Phillips,[12] and HML.[13]
[8] Hoch v The Queen (1988) 165 CLR 292.
[9] Martin v Osborne (1936) 55 CLR 367.
[10] Hoch v The Queen (1988) 165 CLR 292 at 296.
[11] Pfennig v The Queen (1995) 182 CLR 461.
[12] Phillips v The Queen (2006) 225 CLR 303. A detailed discussion of the difficult issues canvassed in Phillips and the earlier High Court authorities is to be found in David Hamer, “Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious” (2007) 30(3) UNSW Law Journal 609; and Jeremy Gans, “Similar Facts After Phillips” (2006) 30 Criminal Law Journal 224.
[13] HML v The Queen (2008) 245 ALR 204.
The complaints, as earlier observed, are against the one defendant, alleging sexual abuse by the defendant against each of the complainants. It is important to distinguish this case from the situation where the one complainant makes complaint on separate occasions against the one defendant.
On the occasions of the alleged conduct, the complainants were teenage girls. Broadly, the allegations relate to touching of the breasts or genital region, over or through the clothing with someone associated with the defendant’s family. The incidents the subject of the charges took place on occasions over a period of some years, and at different locations. Earlier in these reasons, I have summarised the substance of the proposed evidence of each of the complainants. Each of the complainants had an association with the defendant’s family, in particular through the defendant’s former wife or his daughter. The circumstances of the association were such that confidence and trust had been engendered between the complainants and the defendant. These circumstances allowed the defendant the opportunity to have contact with the complainants, and on the prosecution case, the defendant took advantage of those circumstances to commit the offences. Each of the alleged offences, on the prosecution case, took place in opportunistic circumstances, and generally in a brazen way.
The evidence proposed to be tendered as being cross-admissible is circumstantial evidence with respect to each count. As Brennan J observed in Sutton:[14]
Evidence of similar facts consisting in proof of the commission of offences other than the offence charged is therefore a particular category of circumstantial evidence which is subject to a special exclusionary rule. It is wrong to regard evidence of that kind as undifferentiated from circumstantial evidence generally and to hold, as Wells J. held, that there are no categories of circumstantial evidence.
Dawson J similarly observed:[15]
Similar fact evidence is, of course, only circumstantial evidence but it is circumstantial evidence of a particular kind because of the inevitable prejudice, to use the words of Wilson J., which it carries with it. Although there is no necessary requirement of law or of practice, generally where the evidence in a case is circumstantial some direction ought to be given to that jury that before they convict the accused they must be satisfied that the facts are such as to be inconsistent with any other rational conclusion than the guilt of the accused. See Reg. v. Hodge [(1838) 2 Lewin 227, at p. 228 [168 E.R. 1136] at p. 1137]; Plomp v. The Queen [(1963) 110 C.L.R. 234]; Gant v. The Queen [(1981) 147 C.L.R. 503]. Such a direction is a particular expression of the mandatory direction that guilt must be proved beyond reasonable doubt, but it is appropriate in most cases of circumstantial evidence because it serves to emphasize the special care which must be taken in those cases.
[14] Sutton v The Queen (1983) 152 CLR 528 at 548.
[15] Sutton v The Queen (1983) 152 CLR 528 at 563-564.
In considering the admission of the proposed evidence as circumstantial evidence, one commences with the proposition that the evidence is assumed to be true. That is, that the defendant committed the alleged other misconduct. This, as a body of circumstantial evidence, allows the inference to be drawn that the defendant has a tendency to commit misconduct of this kind. Then, having regard to the accumulation of common circumstances in the alleged offending allows the inference or conclusion to be drawn that, looked at together, the events were not mere coincidences, but represented a pattern of similar conduct.
There is a further way in which the proposed evidence is relevant and admissible. As Mason CJ, Wilson and Gaudron JJ observed in Hoch:[16]
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims [[1946] K.B. 31]) or as corroboration (Reg. v Kilbourne [[1973] A.C. 729, at pp. 749, 751, 758]) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman [[1975] AC, at p. 452], per Lord Hailsham and Lord Cross [[1975] AC, at p. 458]; Sutton [(1984) 152 CLR, at pp. 556-557], per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman [[1975 AC, at p. 444]:
“This probative force is derived, if at all, from the circumstance 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.”
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: see Sims [[1946] K.B., at p 540]; Boardman [[1975] AC, at pp 439, 459-460]; see also Rupert Cross, “R v Sims in England and the Commonwealth”, Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.
In the present case, the value of the proposed evidence lies in the improbability of each of the proposed witnesses giving accounts of happenings having a relevant degree of similarity, unless those happenings occurred.
[16] Hoch v The Queen (1988) 165 CLR 292 at 295-296.
On the face of the material, there is a sufficient similarity to demonstrate the relevance and cross-admissibility of the evidence of each complainant in regard to all other counts. In my view, the conclusion of the Magistrate to the contrary was incorrect.
In Hoch,[17] Mason CJ, Wilson and Gaudron JJ considered the question of joint concoction, a matter raised by the defendant in the present case, and observed:
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. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.
[17] Hoch v The Queen (1988) 165 CLR 292 at 296-297.
In my view, the limited material presently available demonstrates that the proposed evidence of each of the complainants is cross-admissible. The proposed evidence, assuming it to be true, would establish that the defendant, as a middle-aged man, was sexually attracted to young women, and in particular, teenage girls. His conduct toward each of the complainants occurred in circumstances where they had been guests in his home, and where the opportunity to take advantage of his proximity to them would arise. Each of the complainants described the sexual abuse as having occurred following an apparently innocent contact with the defendant, which placed him in close physical proximity to them. He then took advantage of that proximity to engage in acts of inappropriate sexual contact, including, in particular, inappropriate touching over or through clothing. The defendant’s conduct on each occasion could be described as “brazen”. On each occasion, following the complainant’s protestations, the conduct ceased. In my view, the evidence of each complainant is relevant and probative with respect to each of the other complaints. There is a sufficient similarity about the conduct to suggest propensity on the part of the defendant to have committed the alleged conduct.
Equally, the fact that the five complainants each complained of similar conduct toward them would suggest that the occurrences were not coincidental. The value of the evidence also lies in the improbability of the witnesses giving accounts of happenings, having the described degree of similarity, unless those happenings in fact occurred. To adopt the reasoning of Lord Wilberforce in Boardman:[18]
This probative force is derived, if at all, from the circumstance 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.
[18] Boardman [1975] AC 421 at 444.
As has been pointed out in Hoch, Pfennig, Phillips and HML, the question of cross-admissibility is to be assessed assuming the truth of the proposed evidence, and a consideration of that evidence in the context of the prosecution case. In the present proceedings, the primary evidence in regard to the separate accounts comes from the particular complainant. In each case, the direct evidence of the complainant of the sexual assault, assuming the truth of the other complainants’ evidence, is such that it could not be said that there was no rational view of the challenged evidence consistent with the innocence of the defendant.
Concoction
This view about the relevance of possible concoction has been approached differently by courts in other jurisdictions. In H,[19] the House of Lords rejected this approach, holding that collusion is a question of fact for a jury and should not affect admissibility.
[19] R v H [1995] 2 AC 596.
There is a difficulty in making an assumption that the similar fact evidence is true when determining admissibility, and at the same time considering whether there exists a real possibility of concoction. The latter consideration necessarily involves questioning the truth of the proposed evidence. This difficulty is addressed in Phillips,[20] where the Court observed:
What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations. First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.
[20] Phillips v The Queen (2006) 225 CLR 303 at [63] (footnotes omitted).
As earlier observed, the second issue raised on this appeal concerns the possibility of concoction between the complainants. The defendant contends that the prosecution has not demonstrated that there was no real possibility that concoction had occurred. Although this question was argued at first instance, the Magistrate did not consider or address the question.
The only material relevant to assessing concoction before the Court are certain assertions made by the defendant in his record of interview. The Magistrate received an edited version, but on appeal it became apparent that to do justice to the defendant’s submissions there was a need to review the entire transcript. Both counsel consented to this course.
In the record of interview, from the outset the defendant described his former wife as a “vindictive, evil woman”, and immediately suggested that she had had a part to play in the making of the allegations. The first part of the interview involved the police putting to the defendant allegations that his daughter made of sexual abuse. It is relevant to address these matters as, in the defendant’s submission, they assist in reaching a conclusion that there is a real possibility of the complainants having concocted the evidence.
The defendant’s daughter’s complaints related to alleged incidents that occurred when she was aged between 8 and 12 years. It was said that on more than two hundred occasions she had been raped or indecently assaulted by the defendant. In the course of the police interview, the defendant denied all allegations and asserted that his ex-wife had put the daughter up to the making of false allegations. He claimed that his former wife had said in his last conversation with her “I will make sure your friends never talk to you again, I will destroy you”. The defendant added that he had not spoken one word to his former wife since that time. He then continued, in answer to the interviewer’s observation that his former wife was not the complainant:
She’s put [the defendant’s daughter] up to it. We, we know that. We have other friends that have given me all this information, including my brother. He said, in fact my brother said she’s an evil woman.
In the event, it appears that the daughter of the defendant has not to the present time proceeded with her complaints.
In the course of the interview, a number of allegations made against the defendant were discussed. Those allegations included the allegations made by the five complainants. It is convenient to turn to those aspects of the interview immediately.
The defendant described the complainant EM as one of his daughter’s closest friends. He said that they had been friends at school. The defendant denied the allegations made by EM, and in the course of the questioning concerning EM, the defendant asked “[t]hese signed statements, or – can they constitute perjury if, if they’re lying?”
In regard to the complaint of TM, the defendant denied the allegations. The defendant recalled that TM and her family lived in the South-East, and were frequent visitors. In the course of the record of interview, the defendant made no allegation of any contact between TM and the other complainants, his daughter, or his former wife.
In his record of interview, the defendant appeared to have trouble recalling the complainant VC. It was suggested by the interviewing officer that VC was the daughter of a cousin of the defendant’s former wife. The defendant denied the allegations, but did not make any suggestion that VC had concocted her evidence, had any contact with the other complainants, or had any contact with his daughter or his former wife, relevant to the concoction of evidence.
The defendant denied the allegations made by the complainant DW. The defendant described DW’s parents as “old friends”. On the issue of concoction, the following interchange took place:
Q.And with, with regards to [DW], is there any reason why she would give a statement to police saying this is what you did.
A. Apart from the fact they’re initial friends of my ex-wife’s.
Q. Other than that, is there any reason that –
A. Well I can’t think of any reason whatsoever.
In the record of interview the defendant did not suggest that there had been contact between DW and the other complainants, or of any contact between DW and his daughter or former wife, relevant to concoction.
The defendant had no memory of the complainant KC. However, he maintained at all times his denial of any wrongdoing toward anybody.
The question to be determined is whether the defendant’s apparent belief about his former wife’s desire to “destroy him”, his daughter’s complaints, and the fact that the complainants are linked by family or social contact to the defendant’s former wife or his daughter, gives rise to a reasonable possibility that the complainants have concocted their account of his misconduct. In my view, there is no evidence disclosed thus far that would allow the conclusion that there is a real possibility of concoction in this case. There is no evidence to link any of the complainants to the other complainants. There is no evidence of any contact between the former wife of the defendant, his daughter and any of the complainants. The defendant’s apparent belief that his former wife arranged for false complaints to be made against him is not supported by any evidence.
It may be that in the course of a joint trial, the cross-examination of the prosecution witnesses may allow a conclusion that there is a real possibility of concoction. In that event, not only would the evidence of the complainants not be cross-admissible, but if that real possibility was not disproved by the prosecution, all complaints would be dismissed. At the present time, however, as earlier observed, the material available does not establish a real possibility of concoction.
Conclusion
As earlier observed, the challenge to cross-admissibility arose at a very early stage in the trial, and on the basis of a brief prosecution opening of the evidence. No depositions were tendered. No voir dire was conducted. At this point of the trial, the truth of the evidence sought to be tendered was to be assumed. As I have observed above, in my view the evidence, accepting its truth, was cross-admissible, and accordingly it follows that there was no occasion for the order of separate trials. It follows that the order of the Magistrate should be set aside.
Later in the trial if the complainants do not relevantly come up to proof, or other facts arise, then it may transpire that some or all of the evidence will not be cross-admissible with respect to other counts. In that event the Magistrate will be able to have no regard to that evidence when determining the verdict on any particular count. A similar course would be followed in the event of there being a reasonable possibility of concoction arising. In this way the trial can proceed as a joint trial without any undue prejudice to the defendant.
This appeal is allowed. The order of the Magistrate directing separate trials is set aside. The complaint is remitted for trial to the Magistrates Court.
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