R v Brprst Rc No. DCCRM-02-627

[2003] SADC 47

R v BRP

[2003] SADC 47

Judge Bishop

Criminal

Reasons for ruling

The accused is charged upon an information which alleges that he committed ten sexual offences against three young girls between 1 January 1996 and 22 December 2001, a period of about 5 years.  Upon his arraignment, he pleaded not guilty and made application for a separate trial with regard to the offences alleged against each of the three complainants and, in relation to the complainant K, that the offence alleged in count 10 be tried separately from the other counts (count 1, 3 and 5) in which she is the complainant.  For the accused, it was contended that the proposed evidence with regard to each count is not cross-admissible with regard to the other counts. The application was opposed.

Upon the material documentarily presented, I am satisfied that the ten alleged offences are properly characterized as forming part of a series of offences of the same or a similar character, within the established judicial interpretation of those words in section 278(1) of the Criminal Law Consolidation Act and, as such, were correctly joined in the information (see R v Liddy [2002] 81 SASR 22, at 49 to 53). As Ms David, then for the Crown, submitted, each of the offences alleged is a sexual offence committed against a child. The complainants are all young girls who became known to the accused in consequence of his relationship with K’s mother. All of the alleged offences occurred in the house where K (or the accused’s mother) lived and usually occurred in K’s presence or when offences were committed against her.

Where separate offences are allegedly committed against complainants on an occasion when they are together present, those persons can each give direct (eye witness) evidence relating to each alleged offence.  The legal implications of that position were clearly expressed by Lord Morris of Borth-y-Gest in R v Hester [1973] AC 296, at 316, (where A was the complainant and B the witness):

“If A and B were independent of each other then clearly what B said would be separate from and independent of what was said by A.  If A and B were not independent of each other for the reason that they had agreed together to concoct a story or for some other reason such as that they had (though with no wrong motive) closely collaborated then their evidence would be either discredited or of little value.  Any warning to a jury of the need to examine the evidence of children with care would no doubt in a suitable case include mention of any circumstances affecting the independence of their testimony.”

(My emphasis.)

Of the 10 counts in the information, that position is applicable to the following counts:

In relation to K and D:

First –counts 2 and 3 and, separately, counts 4 and 5, which relate to two separate incidents during which offences were allegedly committed against each of those girls when both were present.

Secondly – count 6, which relates to an alleged offence against D during an incident when K was present.

Thirdly – count 7, which relates to an alleged offence against D during an incident when K was not present, but about which K was later told by the accused.

In relation to K and A:

Counts 8 and 9, which relate to two incidents during which offences were allegedly committed against A when K was present.

That position is not applicable to count 1, which relates to an alleged offence against K when no one else was present, and count 10, which relates to an alleged offence against K when her mother was present.  From this brief outline, K would appear to be a potential witness in relation to all ten counts of the information.  She is a complainant, together with D, in counts 2 to 5 (inclusive).  She is a witness to the alleged offences against D in counts 6 and 7, and against A in counts 8 and 9.  She is also the complainant in counts 1 and 10.

Each count of the information alleges the commission of a sexual offence and, unless the evidence of each offence is admissible in relation to the other offences charged, separate trials should be ordered (see Hoch v The Queen (1988) 165 CLR 292, at 294, per Mason CJ, Wilson and Gaudron JJ., citing De Jesus v The Queen (1986) 61 ALJR 1). In Hoch’s case, the direct evidence of the commission of each of three offences charged in respect of three boys (two of whom were brothers and the third was a friend of one of the brothers) was held by the trial judge to be admissible as similar fact evidence of the other offences charged, and application for separate trials was refused.  Upon appeal to the High Court, it was held that the three charges should not have been heard together because the evidence on each was not admissible on the others, there being no feature of the case which displaced concoction between the boys as being a reasonable explanation of their several accounts of the alleged offences.

The basis for the admission of similar fact evidence, in such a case, was stated in Hoch’s case (supra) by Mason CJ, Wilson and Gaudron JJ (at 294-295) in this regularly cited passage:

“The basis for the admission of similar fact evidence lies in its 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 offences charged: see Dixon J’s discussion in Martin v Osborne (1936) 55 CLR 367, at 375)…..

Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see Perry v The Queen (1982) 150 CLR 580, at 586-587, 605, 610; Sutton v The Queen (1984) 152 CLR 528, at 563; R v Boardman [1975] AC 421, at 439, 444. 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.

Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbably that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously.  The similar fact evidence is then admissible as evidence relevant to that issue.

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] KB 531) or as corroboration (R v Kilbourne [1973] AC 729, at 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 452) per Lord Hailsham and Lord Cross ([1975] AC, at 458); Sutton ((1984) 152 CLR at 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.”

(My emphasis.)

Similar fact evidence is, as their Honours there observed (at 269), circumstantial evidence and,

“to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.”

In a case such as this, where there are three complainants, any similar fact evidence (as distinct from direct eye witness evidence) of each complainant in relation to the offences alleged against the other complainants may, as their Honours there remarked (at 296), serve two functions:

“Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants.  Its second function is to serve as circumstantial evidence of the happening of the event or events in issue.  In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue.  In cases where there is a possibility of joint concoction there is another rational view of the evidence.  That rational view – viz. joint concoction – is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies.  It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.”

(My emphasis.)

Thus, in their Honours’ view (at 297), “the admissibility of similar fact evidence in cases such as the present depend on that evidence having the quality that it is not reasonably explicable on the basis of concoction.”  Their Honours then proceeded (at 297) to give guidance to the determination, as a primary finding, by the trial judge of whether, in the light of common sense and experience, that evidence is capable of reasonable explanation on the basis of concoction:

“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.” 
(My emphasis.)

For the accused, Mr Kane submitted that the circumstances in which the various complaints were made by each of the three complainants after 21 December 2001 give rise to a possibility of collaboration and concoction between them.  For the prosecution, Ms David submitted that,

“The question of concoction or collaboration between the complainants is not relevant to the question of severance.  This is not a case where the Crown relies on the improbability of three separate complainants describing separate incidents of sexual offending which, when looked at together, have an underlying unity or a striking similarity or united force…. this is a case where the probative value of the evidence arises from the complainants’ direct evidence of sexual offending committed upon each other in the presence of each other.  Furthermore, each complainant’s evidence of other charged and uncharged indecent dealings with the accused provides the context in which the offending relative to each charge occurred: Hoch v The Queen [supra].”

(My emphasis).

In that general submission (and as particularized), there is, to my mind, a measure of approbation and reprobation in relation to the asserted non-reliance by the Crown upon the basis enunciated in Hoch’s case for the admission of similar fact evidence.

In R v Liddy (supra) the prosecution did rely upon what the learned trial judge described (at 39) as the Hoch principle, “that the combination of circumstances in which these offences were committed had, in itself, such probative value” and that, “the evidence in its totality displays evidence of system and overwhelming unity in that pure Hoch sense.” In endorsing that approach and upholding that evidence of the charged and uncharged acts was admissible with respect to all counts (even though the counts related to different complainants), Mullighan J (with whom Williams and Gray JJ agreed) expressed as the basis of admissibility (at 45),

“that it has strong probative force…. The basis of the admissibility of the evidence of the charged and uncharged acts is that it has strong probative force for all of the reasons discussed in Hoch which I briefly summarise. It is capable of negativing innocent association between the appellant and each of the boys. It is capable of amounting to corroboration or confirmation of the evidence of each complainant about each charged act relating to him. The evidence is capable of proving that the incidents occurred and all complainants relating similar events is not a matter of pure coincidence. It is capable of proving the objective improbability of each of the complainants giving accounts of sexual conduct by the appellant unless those accounts are true and there is no reasonable view of the evidence other than as supporting an inference that the appellant is guilty of the charge under consideration. The evidence could negative innocent association. Furthermore, it is capable of establishing a sexual attraction on the part of the appellant to the complainants and to put their evidence into true context: R v Beserick (1993) 30 NSWLR 510. Also, the evidence is capable of establishing that he used the group of boys and the activities which he provided for them as the opportunity for his offending”.

(My emphasis.)

Some of those emphasised (by me) reasons were referred to and relied upon in the most helpful Crown Outline of Argument.

Although Ms David (and then Mr White) specifically disavowed reliance upon the Hoch principle, on the documentary material presented I do not consider that such a disavowal can here be adopted consistently with joint trial of these alleged offences.  Upon analysis, it is not factually accurate, in my view, to assert that from these three complainants there is direct (by which I assume is meant eye witness) evidence of sexual offending committed “upon each other in the presence of each other” of them in relation to the ten counts of the information.  Apart from any admissible “relationship evidence”, in relation to counts 1 and 10, K stands alone (supported by her mother in count 10).  In relation to counts 8 and 9 (which allege offences against A), K was present, but not D.  In relation to counts 2 to 6 (inclusive), K and D were both present, but not A.  In relation to count 7, only D was present (although, according to K, the accused later told her of his having shown dirty magazines to D).

This position was addressed by Dawson J in De Jesus’ case (supra, at 9-10):

“At all events, it is clear that the very nature of some offences is such that as a general rule they should not be tried together because of the risk of prejudice where the evidence admissible in proof of one is not admissible in proof of the other. 

The risk of prejudice is, of course, the risk that, notwithstanding any direction to the jury to consider the offences separately, they will treat the evidence upon one charge as evidence of similar facts in support of the other.  Similar fact evidence is excluded by the law where it can do no more than demonstrate a criminal propensity, because the prejudicial effect of the evidence is far greater than any relevance which it might have.  However, where the evidence has relevance beyond showing a criminal disposition then it will be admissible provided its probative value is sufficient to outweigh its prejudicial effect.”

(My emphasis.)

After reference to Sutton v The Queen (supra) and circumstances in which similar fact evidence may have sufficient probative value to make it admissible, Dawson J continued (at 10):

“In this case, however, there is no suggestion that the evidence admissible upon one count was admissible in proof of the other. That is because of the ordinary principle that similar fact evidence which shows no more than propensity is to be excluded because of the inevitable prejudice which it carries with it.  In cases where the prejudice is such that upon a joint trial it cannot be satisfactorily excluded by a direction to the jury from the trial judge, then separate trials should be required and that is the question to which the trial judge ought to have directed his mind.”

(My emphasis.)

On that approach, one must return to Hoch’s case (supra) and, upon the assumption that the criterion there enunciated for the admissibility of similar fact evidence is satisfied, consider whether, “the complainants have a sufficient relationship to each other and had opportunity and motive for concoction” (per Mason CJ, Wilson and Gaudron JJ, at 297).

In this case, upon the assumption that the relevant criterion for the admissibility of similar fact evidence is satisfied, I considered that an examination on the voir dire would have been necessary for the purpose of ascertaining the facts relevant to the circumstances of the three complainants, to permit an assessment of the probative value of that evidence by reference to the relevant consideration; that is, whether, in the light of common sense and experience, that evidence is capable of reasonable explanation on the basis of concoction, not for the purpose of making a preliminary finding whether there was or was not concoction.  However, such an enquiry was here specifically eschewed by the Crown for the reason that this case is not one of underlying unity but of direct eye witness evidence.  Factually regarded, in my respectful view, in relation to all of the ten counts of this information, that submission is incorrect, as previously stated.

For these reasons, in my view, joint trial of all ten counts should not be conducted; rather, there should be conducted three separate trials in relation to counts 1 and 10, counts 2 to 7 (inclusive) and counts 8 and 9, respectively.  I so rule.