R v BCW - [2021] SADC 23

District Court of South Australia
(Criminal)
R v BCW
[2021] SADC 23
Ruling of her Honour Judge Fuller
12 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER
The accused is charged with two counts of maintaining an unlawful sexual relationship with a child - each count relates to a different complainant - application to sever counts to allow for separate trial for each complainant - whether evidence cross-admissible as discreditable conduct evidence on the basis of similarity of account.
Held: The evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P (2) (a) of the Evidence Act 1929 (SA).
Application allowed. Order for severance of counts requiring separate trials for each complainant.
Criminal Procedure Act 1921 (SA) 102(6)(b); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), s 34P(3); District Court Criminal Rules 2014 (SA) Rule 49(1)(e), referred to.
R v Maiolo (No 2) (2013) 117 SASR 1; R v M, JJ; R v C, JN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137; De Jesus v The Queen (1986) 68 ALR 1; R v N, SH [2010] SASCFC 74; Sutton v The Queen (1984) 152 CLR 528; Des v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80; Hughes v The Queen (2017) 263 CLR 228, considered.

R v BCW
[2021] SADC 23

BCW is charged on one Information with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50 Criminal Law Consolidation Act 1935. He has elected for trial by Judge alone.
The first count relates to the complainant JW and alleges that the accused maintained an unlawful sexual relationship with JW, a person under the age of 17 years, between 1 January 1987 and 31 December 1990 by engaging in two or more unlawful sexual acts with or towards JW. Those unlawful sexual acts are particularised as being:
(a)     kissing and/or licking him on the neck and/or ear on more than one occasion;
(b)     biting him on the ear on more than one occasion;
(c)     touching his buttocks on more than one occasion;
(d)     touching his genitals on more than one occasion; and
(e)     thrusting his penis between JW’s buttocks on more than one occasion, usually to the point of ejaculation.
The second count relates to the complainant RSL and alleges that the accused maintained an unlawful sexual relationship with RSL, a person under the age of 17 years, between 1 January 1994 and 31 December 1996 by engaging in two or more unlawful sexual acts with or towards RSL. Those unlawful sexual acts are particularised as being:
(a)     kissing him on the mouth on more than one occasion;
(b)     biting his nipples;
(c)      touching his buttocks on more than one occasion;
(d)     touching his genitals on more than one occasion;
(e)     thrusting his penis between RSL’s buttocks on more than one occasion, usually to the point of ejaculation;
(f)      inserting his penis into RSL’s anus on more than one occasion, usually to the point of ejaculation; and
(g)     inciting or causing or procuring RSL to touch his genitals on more than one occasion.
On 15 April 2020, the prosecution filed a notice of intention to adduce discreditable conduct evidence. The notice stated that the discreditable conduct was the evidence of the conduct comprising count 1 in relation to count 2 and vice versa. The notice asserted that the permissible use of the evidence under section 34P (2) (b) Evidence Act 1929 (SA) was to prove that the accused had a sexual interest in young male children and a willingness to act on that interest when the opportunity arose, by orchestrating opportunities for such acts notwithstanding other persons were in the vicinity and/or there was a risk of detection, and that the accused had a particular propensity to engage in the type of conduct described by JW and RSL.
On 8 February 2021, the accused filed a notice of objection to the proposed evidence of discreditable conduct. The notice of objection asserted that the discreditable conduct evidence did not substantially outweigh its prejudicial effect and did not have strong probative value having regard to the identified issue.
On 8 February 2021, the accused filed an application pursuant to Rule 49 of the District Court Rules 2014 seeking, inter alia, an order that there be separate trials of counts 1 and 2.
The trial was listed to commence on 1 March 2021. As a result of the timing of the Rule 49 notice and the notice of objection to the proposed discreditable conduct, those arguments were dealt with by me, as the trial Judge, on the voir dire at the commencement of the trial.
The lateness of the notices meant that a determination of the application for separate trials (which of necessity requires a determination of the application to adduce discreditable conduct evidence) could not take place well in advance of trial by a Judge who was not the trial Judge. It is much preferable, particularly in a trial by Judge alone, for such applications to be determined in advance by a Judge who is not allocated the role of trial Judge.
In the event that separate trials are ordered, the evidence adduced in the subsequent trials will relate only to the count or counts to be tried by the trial Judge. This avoids the necessity of the Judge having to put out of mind, or to one side, inadmissible and prejudicial evidence relating to a count or counts that have been severed from the Information. It is in the interests of justice and fairness to the accused that this situation is avoided.
On 1 March 2021, the prosecutor, Mr Hill abandoned reliance upon the discreditable conduct notice. Mr Hill said that the prosecution no longer contended that the evidence on one count was admissible on the other pursuant to s 34P (2) (b). However, the prosecution contended that the evidence was admissible pursuant to s 34P (2) (a), on the basis of similarity of account.
On 4 March 2021, I ruled that the evidence on each count was not cross-admissible. I then heard further argument in respect of the application to sever the counts. Following argument, I ordered that there be separate trials of each count. I now publish my reasons for so ruling.
The joinder of charges is authorised by s 102 (6) (b) Criminal Procedure Act 1921 (SA). That section provides: -
(6)Despite subsection (5) any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different victim.
The discretion to order a separate trial of a count relating to a particular complainant is only to be exercised where the evidence in relation to that count is not cross-admissible. That discretion is to be exercised judicially. In R v N, SH[1] the Court said of the earlier equivalent of s 102 (6) (b):
In our view, the amendment of s 278 by the insertion of subsection (2a) does not alter the general proposition that if the evidence on one count is not admissible on the other count or counts, the Court will usually exercise its discretion to order separate trials, particularly in sexual cases. The section limits the Court in deciding the cross admissibility of the evidence, but upon the Court determining the evidence is not cross admissible the Judge, in exercising his or her discretion, must have regard to the principles in Sutton and De Jesus.[2]
[1] [2010] SASCFC 74
[2] At [44].
Discreditable Conduct
Evidence that a person has committed sexual offences other than the charged offence is evidence of ‘discreditable conduct’. The admissibility of this evidence is governed by s 34P of the Evidence Act 1929 (SA).
Section 34P provides:
34P – Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than the conduct constituting the offence (discreditable conduct evidence) –
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if –
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue – the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2) (a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other     party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
Cross‑admissibility
The prosecution submits that the evidence of each complainant is cross‑admissible and can be used in consideration of the charge in relation to the other complainant on the basis that similarities exist between each complainant’s account such as to demonstrate the improbability that the conduct alleged was concocted or imagined by each of them independently of the other.
In R v MJJ; R v CJN[3] Kourakis CJ set out the process by which the probative value of the evidence is weighed:
The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as “context”, “background” and “underling unity” will seldom illuminate the analysis.
[3] (2013) 117 SASR 81.
Similarity of account
In R v C, CA[4] Kourakis CJ described similarity of account as the clearest basis for the cross-admissibility of evidence of offending against each complainant:
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury.
The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
[4] [2013] SASCFC 137.
In Des v The Queen[5], Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Further, the focus must be upon similarity (or dissimilarity) that bears upon the improbability of fabrication, coincidence or collusion.[6] In Des v The Queen, Doyle J identified the several significant similarities between the allegations of the three complainants. The allegations each involved the appellant sexually abusing a young niece by entering their bedroom late at night whilst asleep; often involved the appellant getting into bed with the relevant complainant and touching her vagina; on most occasions this occurred when he was babysitting, or his mother was babysitting and he smelt of beer or alcohol; the offending was brazen and opportunistic. Doyle J described the issue as ‘relatively finely balanced’ but was satisfied that the trial Judge was correct to accept that the evidence of the three complainants was cross-admissible under s 34P (2)(a) on a similarity of account basis.
[5] [2020] SASCFC 32.
[6] At [70].
Livesey J agreed with Doyle J that the issue was ‘finely balanced’:
Whilst that may be a relevant consideration when determining admissibility, it is ultimately resolved by a decision by the trial Judge about the extent to which the degrees of similarity of account bear on the improbability of independent fabrication or coincidence. This, together with whether the permissible and impermissible uses can be kept sufficiently separate and distinct so as to remove the risk of impermissible use, will determine cross admissibility.
…Whilst it was not beyond argument, the evidence in this case was not merely that which “would always present itself” in cases of sexual abuse by a male of a female.[7]
[7] At [158]–[159].
The focus must be on the similarity between the complainants’ allegations, rather than the complainants’ characteristics:
…the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complainants such as to make it improbable that each complainant would have independently falsified to that same level of detail.[8]
[8] MDM v The Queen [2020] SASCFC 80 at [130] per Peek J. In R v C, CA, at [92] – [93], Kourakis CJ said that the features identified by the trial Judge of the similar age of the complainants, the absence of a father figure, their common acquaintance with another person and the accused’s practice of taking the complainants on outings had no relevance for the purpose of similarity of account reasoning.
I have a discretion to admit the evidence for non-propensity purposes if I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and that this use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
In R v Maiolo (No 2)[9] Peek J said:
…the combined effect of ss 34P(2)(a) and 34P(3) is to require, for evidence of discreditable conduct to be admissible, that it must have a degree of probative value which substantially outweighs any prejudicial effect it may have on the defendant and, in assessing the possibility of prejudicial effect (and hence the question of whether the possibility is substantially outweighed) the Judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose (i.e. of impermissible use).
[9] (2013) 117 SASR 1 at [54].
Relevance of forum for trial
The accused has elected for trial by Judge alone. The prosecution contends that in a trial by Judge alone the capacity to remove any appreciable risk of the evidence being used for an impermissible purpose is much greater than in a jury trial. The prosecution submission on this topic was as follows:
The prosecution further submits, that given this is to be a trial by Judge alone, there is no real risk that the Court will employ basic impermissible bad person reasoning, namely that because the applicant is of bad character, he is more likely to have committed the charged offences. The Court is also experienced in the use of evidence for, and only for, specified purposes, such that there is no real risk that any permissible use of the evidence would not be kept separate and distinct from the impermissible use.[10]
[10] Separate Trials: Prosecution Written Submissions, 1 March 2021, paragraph 64.
In R v C, CA, Kourakis CJ said:
The mischief to which s 34P (3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use.[11] [Emphasis added]
[11] [2013] SASCFC 137 at [76].

In R v C, CA Kourakis CJ said that although it is to be assumed that a Judge has a greater capacity to keep the reasoning distinct from a jury of twelve, a Judge does not have the benefit of having his or her reasoning tested by jury room debate. However, his Honour said:
…I would not be inclined to attribute to Parliament an intention to prescribe a test for the admissibility of evidence which would be applied differently depending on the mode of trial. Section 34P of the Evidence Act imposes a test for admissibility which involves an evaluative judgment as a matter of law, and not the exercise of a discretion.[12]
[12] Ibid at [82].
I note that in the recent decision of MDM v The Queen [2020] SASCFC 80, the Court considered the application of s 34P (3) in an appeal from a trial by Judge alone. In that case, the prosecutor had not contended that the discreditable conduct evidence was admissible as evidence of propensity under s 34P (2) (b). The trial Judge had, however, used it in this way. Peek J took the view that it was arguable that the prosecutor had made the right decision. In considering whether s 34P (2) (b) would have permitted the trial Judge to look at the evidence of one of the complainants quite separately from that of the other, accept it beyond reasonable doubt, and then find it to establish a relevant propensity which could then be used in assessing the evidence of the other complainant, Peek J said:
First, that the probative value of the evidence asserted to be cross-admissible for an ostensible “permissible use” of establishing propensity pursuant to that legal theory could not substantially outweigh the prejudicial effect it may have on the defendant (and particularly so having regard to the fact that the evidence would be otherwise admissible under s 34P(2)(a) of the Act); and
Secondly, that the probative value of the evidence asserted to be cross-admissible for an ostensible “permissible use” of establishing propensity pursuant to the legal theory could not have strong probative value having regard to the particular issue arising (and particularly so having regard to the fact that the evidence would be otherwise admissible under s 34P(2)(b) of the Act); and
Thirdly, that in determining the above questions, it is not possible “to remove any appreciable risk” of the evidence being used for the impermissible use of suggesting that the defendant is more likely to have committed the offence because he has engaged in discreditable conduct (s 34P(3) of the Act).
The fact that the trial was by Judge alone did not feature as a relevant factor in the resolution of the application of s 34P in the circumstances of that case.
In R v C, CA Kourakis CJ did not distinguish between Judge and jury in considering whether it was possible to remove any appreciable risk of propensity evidence admissible in respect of two complainants being used, impermissibly, to suggest that the accused was more likely to have committed the offences alleged in respect of a third complainant:
In considering the predisposition manifest in the evidence of MG and MA it is very difficult, for a judge or jury, to put the evidence of SG completely to one side. The evidence has the capacity to prejudice the evaluation of the evidence of MG and MA for propensity purposes because of the strong human tendency to reason retrospectively to the effect that the appellant’s conduct against SG was a manifestation of the tendency suggested by the conduct against MG and MA and that the only reason the appellant did not offend in that way against SG was that the appellant was not given sufficient opportunity to indulge his proclivity with SG. Consciously or subconsciously, the evidence of the offending against SG will then be used to reinforce the inference of a particular propensity arising out of the evidence of MG and MA. Fallacious retrospective reasoning of that kind is common to trained and lay minds alike. The evidence of SG, for that purpose, is not strongly probative and easily conflated with “bad person” reasoning.[13] [Emphasis added]
[13] At [87].
Parliament has not confined the operation of s 34P (3) to the forum of a jury trial and has not formulated a different test for a trial by Judge alone.
The resolution of the question of whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose does not depend upon the forum of the trial but rather on the particular facts of the case and an evaluative judgment as a matter of law.
Overview of the evidence
JW was born on 30 November 1980. The accused is his uncle. The accused is brother to JW’s mother. JW alleges that he was sexually abused by the accused between the ages of about 6 and 10, at his family home in St Agnes. JW was living at the family home with his mother, MW and his father KW, his younger sister TW and younger brother CW.
The accused was employed as a teacher at a Riverland school, during the mid to late 1980’s but transferred to a western suburbs school, at the start of 1990.
JW alleges that the accused would occasionally stay at the family home at St Agnes when he came to Adelaide from the Riverland on weekends or during school holidays. When the accused transferred to the western suburbs school he stayed at JW’s family home for an extended period whilst waiting to obtain his own accommodation.
JW’s younger brother CW had Downs Syndrome and TW was born in March 1985. As a result, at the time of the alleged offending, his mother was very busy caring for his siblings.
JW alleges that when the accused came to stay, he slept on a mattress that was removed from a sofa bed and placed on the lounge room floor. The alleged offending always occurred early in the morning, when his father was at work and always on the mattress on which the accused slept. On occasions when JW left the bedroom he shared with CW to go to the toilet, the accused would ask or gesture for him to get into bed with him for ‘special cuddles’.
JW estimated that he was sexually abused by the accused more than 5 but less than 10 times. He described the sexual acts as follows:
[The accused] would ask or gesture for me to get into bed onto the mattress with him. [The accused] would put the covers over us and would be ‘spooning’ me. This is when he would pull me into him with my buttocks pushed into his crotch area. [The accused] would use his hands to touch and rub over my body, rubbing my back, touching my bottom, down my legs and up the front of me and into my groin. [The accused] would also put his top right leg over my hips and pull me closer to him, while using his legs to rub mine. He would kiss and lick my neck and right ear whilst making groaning noises and talking to himself. On numerous occasions I can remember him biting/nibbling me on my ear as he got more aroused his penis became more erect and he would push his penis and hips into my bottom area. I had underwear and pyjamas on at the time. [The accused] would keep thrusting his hips and groin area into my bottom area until he came to ejaculation. Once he ejaculated on my pants he would cuddle me tighter and say things to me like: ‘I like our special cuddles’ or ‘good boy, you did well’ and ‘remember it’s our little secret, just us okay’. Once he had ejaculated and told me that it’s our secret, I was told to go back to my bedroom and get back into bed until mum came and woke me up for school. I always wondered but I could never work out why in the morning my underwear of [sic] pyjamas were wet and sticky – for many years I assumed that somehow I had wet myself or that I had sweated to cause what I now know as [The accused’s] sperm and bodily fluids.[14]
[14] Affidavit of JW, 8 December 2018 paragraph [12].
RSL met the accused not long after RSL started at the western suburbs school in year 8 in 1994. RSL had an unhappy family life, being raised by his alcoholic gambling mother and with 2 of his 5 brothers living at home with him. The family had no money and RSL and his brothers had to steal food to survive.
RSL had trouble fitting in at school and early in 1994 started truanting. On one occasion, he was sitting on a bench near Cash Converters at Port Adelaide when the accused recognised him and offered him a lift back to school. The accused told RSL that he would not tell anyone provided RSL did not do it again. Thereafter the accused allowed RSL to buy food on his account at the school canteen and asked him to do odd jobs like cleaning and collecting cans, for which the accused paid him.
RSL describes the first two incidents of sexual abuse as occurring at school, during year 8, and in a storage room attached to the accused’s classroom. The accused had asked RSL to clean his classroom during recess time. Whilst in the storage room, the accused asked RSL to get up on a ladder and grab something from the top shelf. As RSL was standing on the ladder, the accused came up behind him and put his nose between his bottom cheeks and started rubbing his crotch with his hands, on the outside of RSL’s clothing. While the accused’s nose was in between his bottom, he started making funny snarling, growling noises with his mouth and it seemed to RSL that the accused was trying to bite his bottom cheeks. The accused said something like ‘you like that don’t you’. RSL climbed down the ladder and they both left the room and did not speak of what had happened.
The next time that the accused asked RSL to clean his classroom, the accused again asked RSL to climb a ladder, which was about a metre and half long. As RSL was passing boxes down to the accused, the accused put his nose between his bottom cheeks and was snarling and grunting like a pig. He reached around with his hand and put it down RSL’s track pants, underneath his underwear and started rubbing his penis. The accused masturbated RSL for a minute or two and suddenly stopped and went back into his classroom. This incident occurred within 3 weeks of the first incident.
Towards the end of year 8, the accused started to come to RSL’s home. RSL was playing football for a local team, and also in a school team, and the accused was a mentor for the school team. The accused would buy RSL tracksuit pants and football boots.
The accused visited RSL’s house every Saturday morning towards the end of year 8 when RSL was 13 years old. By this stage, the accused had left the western suburbs school. RSL started ‘hanging out’ with the accused almost every Saturday for a 12-to-18-month period between 1994 and 1996. The accused would drive RSL to wherever the accused was staying at the time and sexually abuse him.
On about 10 occasions, RSL stayed overnight with the accused at the accused’s parents’ house. On the occasions that RSL stayed the night, the accused never abused him at night. The accused would always sexually abuse him within 5 minutes of arriving at the house he was staying, unless there were people present. RSL described the accused as ‘launching’ himself at him like an animal.
On some occasions on the way to the house, the accused would put RSL’s hand on his crotch and make him rub the accused’s crotch. This was over the accused’s clothing. On some occasions in the morning after a sleep over with the accused, the accused would molest RSL in the accused’s bedroom. On two occasions the accused masturbated RSL whilst they were both in the accused’s vehicle. He put a condom over RSL’s penis and masturbated him. On one of those occasions, RSL ejaculated.
Throughout this period of abuse, the accused would regularly give RSL money as payment for RSL doing minor manual labour or other jobs for the accused.
The locations at which the sexual abuse occurred were:
·The accused’s sister’s house at Old Reynella Village.
·The accused’s sister’s house near Noarlunga.
·The accused’s parents’ home near Noarlunga.
·A house on Henley Beach Road.
·Pelican Point in the accused’s vehicle.
·Near Flinders Hospital in the accused’s vehicle.
RSL said the sexual abuse that occurred in the homes at which the accused would stay was always the same. He described it as follows:
As soon as the door was closed he turned into that snarling pig again. I was only thirteen and he was a much bigger older man. He was just all over me, like suffocating me. He took his clothes off and then he took my clothes off. He bear hugged me and we were both naked. He pulled me onto the bed. I was lying on my back and he was lying on his side but half on top of me. Like two people kind of spooning, except he was aggressive. He started wrapping his leg over me and talking dirty to me. I remember he was trying to kiss me and force his tongue down my throat. He whispered in my ear things like, you love this you dirty little slut. He said other things like Gay lust, red hot white meat. He asked me what kind of stuff I liked whilst squeezing my penis so hard it was painful. He started masturbating me. I was able to ejaculate by this time. When I came he rubbed semen all over my chest and my genitals with his hands. He turned me over so I was lying on my stomach. I clenched my bottom cheeks as tight as I could because I was so frightened. He was telling me to relax but I wouldn’t. He pushed my butt cheeks together with his hands and thrust his erect penis in and out of my bottom until he ejaculated in my butt cheeks. He never used any lubricant. [The accused’s] penis was unusually small and thin. Even when it was erect it would have only been two or three inches long. [The accused’s] penis was so small that only the tip of his penis was able to penetrate my anus. [The accused’s] penis was uncircumcised. [The accused] also had a birthmark on one side of his chest. It was about as big as my palm. [The accused] was unable to fully penetrate my anus because his penis was so small. He cleaned himself up and passed me the towel. After that it was like he flicked a switch and went back to being that top bloke again who was a father figure to me and someone I enjoyed being around.[15]
[15] Affidavit of RSL, 7 June 2018, paragraph 31.
RSL also said that the accused put his finger between RSL’s anus and scrotum and pushed, in order for RSL to get an erection. This occurred during the incidents at the various houses. RSL had a faint recollection of that occurring during the two incidents that took place at the western suburbs school.[16]
[16] Affidavit of RSL, 23 January 2021, paragraph 3.
RSL said that on either the first or second occasion of abuse at the accused’s sister’s home, the accused said something to him along the lines of ‘don’t tell anyone about this, let’s keep it our little secret’. [17]
[17] Affidavit of RSL, 7 June 2018, paragraph 37.
Analysis
The prosecution contends that the accounts of each complainant of the offending are such as to raise the improbability, as a matter of human experience, of each of them independently concocting such similar accounts. The similarities upon which the prosecution rely are as follows:
·The offending occurred (for the most part) at homes occupied by the accused’s family;
·The offending involved a risk of detection;
·Both complainants were vulnerable due to their family circumstances and this was known to the accused;
·The sexual acts described by the complainants involved them lying with the accused in a ‘spooning’ position; both complainants specifically refer to the accused wrapping his leg or legs around them.
·A feature of the offending was biting or biting/nibbling and kissing;
·Both complainants describe the accused touching their penises;
·Both complainants describe the accused thrusting in the area of their anus and that the conclusion of the sexual act involved the accused ejaculating;
·Both complainants recall the accused referring to the offending as ‘our little secret’ or words to that effect.
The first and third feature relied upon by the prosecution have no relevance for the purposes of similarity of account reasoning.[18] In any event, in respect of the third feature, the evidence does not permit a finding that JW was vulnerable due to his family circumstances.
[18] In R v C, CA [2013] SASCFC 137 at [92] – [93], Kourakis CJ said that the features identified by the trial Judge of the similar age of the complainants, the absence of a father figure, their common acquaintance with another person and the accused’s practice of taking the complainant’s on outings had no relevance for the purposes of similarity of account reasoning.
The focus must be on the degree of similarity between the complainants’ allegations of abuse and whether the similarities (or dissimilarities) bear upon the improbability of fabrication, coincidence or collusion.
I have carefully considered the evidence of each complainant and focussed on the degree of similarity between their respective allegations. I agree that in respect of each narrative, a similar feature is the allegation of spooning and the thrusting of the accused’s penis against each complainant’s bottom whilst in a spooning position. However, JW alleges that he remained clothed whilst this occurred and there was no penetrative activity. In contrast, RSL was always naked and alleges that there was penetrative activity.
In addition, each complainant alleges that the accused engaged in behaviour intended to prevent any complaint, by telling each complainant that what was occurring should be kept secret. However, this aspect of the alleged offending is an all-too-common feature in accounts of offending of this type.
The other similarities upon which the prosecution rely are also, in my view, upon closer scrutiny, contextually dissimilar. The allegations of biting/nibbling, touching of the penis and the accused thrusting his penis against the bottom of each complainant occur in markedly different contexts as between each complainant.
The account of RSL is of aggressive overbearing sexual conduct, commencing on most occasions with the accused launching himself at RSL as soon as the opportunity to do so presented itself. The touching of RSL’s penis is described as rough and painful and included the unusual feature of the accused rubbing ejaculate on RSL’s stomach and penis after masturbation had concluded. The accused’s kissing of RSL was forceful and involved the accused ‘sticking his tongue’ down RSL’s throat. The accused bit RSL’s nipples. The language used by the accused was also sexually aggressive – ‘dirty little slut’ and ‘red hot meat’. RSL describes the accused as snarling and grunting like a pig, and this behaviour is displayed on the earliest occasions of abuse.
In contrast, JW’s account of the alleged offending bears none of the hallmarks of aggression and dominance. The accused does not speak to JW in the manner he speaks to RSL; the accused uses the words ‘special cuddles’ and the description of the accused’s behaviour and demeanour is quite different from that experienced by RSL.
There are other dissimilarities in each complainant’s narrative, both as to the nature of the sexual offending alleged and the circumstances in which it occurred. On RSL’s account, the abuse involved grooming, both before and during the alleged offending. On JW’s account there is a complete absence of any evidence of grooming. In addition, the offending involves no touching of bare skin in the areas of JW’s genitals or bottom, and no penetrative sexual activity takes place. Further, in contrast to RSL’s account, there is no allegation that the accused incited, caused or procured JW to perform a sexual act upon him. The offending against JW did not advance or escalate; on each occasion the offending was the same, and in the same location, the only difference being the circumstances in which it commenced and concluded. The offending against RSL occurred in a variety of locations.

Whilst I consider the matter to be finely balanced, the matters identified above have led me to the conclusion that the respective accounts do not have a sufficient degree of similarity that the hypothesis that each complainant independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect.
In reaching this conclusion, I have had regard to the fact that RSL gives an account of the characteristics of the accused’s penis which, if true, is consistent with RSL having esoteric knowledge. The photographs of the accused penis establish that it has the peculiar characteristics ascribed to it by RSL. Those characteristics will not have changed due to the effluxion of time. Absent an innocent explanation for RSL having seen the accused’s penis, this is potentially very powerful evidence supporting RSL’s account of the alleged abuse. This esoteric knowledge, peculiar to RSL alone, contraindicates concoction, imagination or collusion on his part, independent and irrespective of any similarity between RSL’s account and that of JW.
Separate trials
Pursuant to s.106(2)(b) of the Criminal Procedure Act 1921 (SA) my ruling that the counts are not cross-admissible enlivened the discretion to order a separate trial of each count. A Judge may order a separate trial but does not necessarily have to: R v N, SH.[19]
[19] (2010) SASCFC 74.
In De Jesus v R (1986) 68 ALR 1, Gibbs CJ and Brennan and Dawson JJ reaffirmed the remarks of Brennan J in Sutton v The Queen (1984) 152 CLR 528, in which his Honour said:
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have on the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear…where the evidence admissible on one count is not admissible on another and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials.[20]
[20] At 541.
In R v N, SH, the Court observed:
In our view, the amendment of s.278 by the insertion of sub-s.(2a) does not alter the general proposition that if evidence on one count is not admissible on the other count or counts, the court will usually exercise its discretion to order separate trials, particularly in sexual cases. The section limits the court in deciding the cross-admissibility of the evidence but upon the court determining the evidence is not cross-admissible the judge, in exercising his or her discretion, must have regard to the principles referred to in Sutton and De Jesus.[21]
[21] (2010) SASCFC 74 at [44].
I refer to those authorities because, in this case, the accused has elected for trial by Judge alone. Ordinarily an application for severance would be heard well in advance of trial and if the Judge hearing it then granted that application, each trial would be heard by a different Judge. In this case, given the proximity of the application to the trial proper, the parties during argument contended that I should determine both the severance application and hear the trial proper (whether as a joint trial or as a trial of one count).
In those circumstances, if I ordered separate trials of each count, I would be considering the evidence in respect of one count despite being aware of, and having considered in detail, the evidence to be led by the prosecution on the other count. When I raised this with counsel during the severance application, neither counsel suggested that, should I sever the counts, another Judge should preside over the trial of the count upon which the DPP determined to proceed with first. Both counsel submitted that I, as a Judge, could put to one side and out of my mind the information I have learnt during the course of the application.
My initial view was that if I were to refuse the application to sever and proceed with a joint trial, I would be in the same position of being required to consider the evidence on either count 1 or count 2, wholly separate from, and without regard to, the evidence on the other count. The only difference would be that the oral testimony would be adduced before me on the trial proper instead of in affidavit form on the voir dire.
As I did not hear detailed submissions on this aspect of the matter, I deferred my ruling on the severance application until after counsel had been given the opportunity to make further submissions.
During argument, defence counsel raised the issue of my assessment of the accused's answers in his record of interview and the potential effect of me rejecting the accused's account in respect of one set of allegations on my assessment of his answers in relation to the other set of allegations. In my view, there was considerable force in that submission, notwithstanding that the record of interview was structured such that there was no co-mingling in the putting to the accused of the allegations relating to RSL and those relating to JW.
Defence counsel also raised the same issue with respect to the possibility of the accused giving evidence in the trial, which would not be known until the close of the prosecution case. The prosecutor argued that if the accused gave evidence, I could take into account any adverse assessment of the accused’s credibility in respect of his evidence on one count in my assessment of his credibility vis-à-vis his evidence on the other count. The prosecutor also contended that he should be permitted to cross-examine the accused on the evidence he gave on one count in the course of cross-examining the accused on the other count.
In my view, this approach would be impermissible if the counts were the subject of separate trials. The evidence of the accused in respect of a count that I have ruled is not cross-admissible could not be led or deployed against him in a separate trial of the other count. There is no reason in logic or principle for the position to be any different if the counts were to be tried together. If the trial were a joint trial, I would not have permitted the prosecutor to proceed in this way.
Nevertheless, I formed the view that there was a real risk of impermissible reasoning if the accused gave evidence, and I formed an adverse view of his credibility in respect of the case on one count. I considered that it would be difficult, if not impossible, for me to be able to quarantine that adverse credibility finding from any credibility findings I made on his evidence on the other count.
Accordingly, I concluded that the risk of impermissible reasoning was too high and, in the interests of fairness to the accused, I granted the application for severance and ordered that there be separate trials of each count.