R v C, CA

[2013] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, CA

[2013] SASCFC 137

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice Nicholson)

17 December 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

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

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

The appellant was charged with thirty counts of sexual offending against three complainants; MG, SG and MA. On a trial of those charges before a jury, the appellant was convicted of five counts of indecent assault and twelve counts of unlawful sexual intercourse. The appellant appeals against those convictions.

The appellant appeals on a number of grounds.  Primarily, the appellant contends that a fair trial miscarried as a result of the joint trial and that the judge failed to adequately direct the jury on the cross-admissibility of the evidence as between the counts relating to each of the complainants. The appellant also contends that the judge failed to: direct the jury with respect to the limited use to be made of the alleged admissions; direct the jury adequately in relation to the appellant’s good character; provide adequate directions in relation to the significant forensic disadvantage as a result of the delay; and, adequately present the defence case.

Held (allowing the appeal):

(1) In the absence of an objection, a trial judge does not have to consider the issue of the admissibility of evidence of discreditable conduct under s 34P of the Evidence Act 1929 (SA) (Kourakis CJ at [54], Anderson and Nicholson JJ agreeing).

(2)  The Judge was right not to order a separate trial of the counts relating to MG from those relating to MA; the evidence was cross-admissible and a joint trial was necessary (Kourakis CJ at [54] and [89] Anderson and Nicholson JJ agreeing).

(3)  The probative value of the evidence of SG in the trial of charges against MG and MA does not outweigh its prejudicial effect and, therefore, the evidence of SG is inadmissible in the trial of offences against MG and MA (Kourakis CJ at [55] and [88]-[89]), Anderson and Nicholson JJ agreeing).

(4)  The probative value of the MG and MA discreditable conduct admitted for its permissible uses would not outweigh any prejudicial effect with respect to the case brought on behalf of SG.  The MG and MA discreditable conduct evidence is not admissible in the case concerning SG (Nicholson J at [124] and [140], Kourakis CJ and Anderson J disagreeing).

(5) The directions as to the cross-admissibility of the evidence as between the counts relating to each of the complainants were affected by error; the Judge erred in law in failing to give a direction that satisfied s 34R of the Evidence Act 1929 (SA) (Kourakis CJ at [96], Anderson and Nicholson JJ agreeing).

(6)  It is not necessary to decide whether a failure to give a direction on the appellant’s credibility, with respect to good character, resulted in a miscarriage of justice (Kourakis CJ at [110], Anderson and Nicholson JJ agreeing).

(7)  The Judge must give a fair and balanced presentation of the effect of the prosecution and defence cases. The Judge should have provided greater assistance to the jury in regard to evidence which contradicted the complainants’ accounts (Kourakis CJ at [113] and [116], Anderson and Nicholson JJ agreeing).

(8) The delay was substantial and resulted in a significant forensic disadvantage, calling for a direction in accordance with s 34CB of the Evidence Act 1929 (SA). The Judge’s direction in this respect was inadequate; however, it is not necessary to determine whether a miscarriage of justice arose (Kourakis CJ at [117] and [120]) Anderson and Nicholson JJ agreeing.

(9)  Appeal allowed; convictions on all counts quashed, and, matter remitted to the District Court for retrial (Kourakis CJ at [4] and [121], Anderson and Nicholson JJ agreeing).

Criminal Law Consolidation Act 1935 (SA) s 278, s 352; Evidence Act 1929 (SA) s 34P, s 34P(3), s 34S, s 34R, s 18, s 34CB, referred to.
R v C, CN [2013] SASCFC 44; R v C, G (2013) 117 SASR 162, discussed.
R v Maiolo (No 2) [2013] SASCFC 36; R v Nieterink (1999) 76 SASR 56; R v Bonython-Wright [2013] SASCFC 87; Hoch v The Queen (1988) 165 CLR 292; R v Hissey (1973) 6 SASR 280; R v Ball [1911] AC 47; R v Straffen [1952] 2 QB 911; Martin v Osborne (1936) 55 CLR 367; Harriman v The Queen (1989) 167 CLR 590; R v Armstrong (1990) 54 SASR 207; Phillips v The Queen (2006) 225 CLR 303; R v Soteriou [2013] SASCFC 114; R v Conley (1982) 30 SASR 226; R v Long and McDonnell (2002) 137 A Crim R 263; R v Rowton (1865) 169 ER 1497; Melbourne v The Queen (1999) 198 CLR 1; RPS v The Queen (2000) 199 CLR 620; Alford v Magee (1952) 85 CLR 437; R v BD (1993) 66 A Crim R 192; R v Perks (1986) 43 SASR 112; Cleland v The Queen (1982) 151 CLR 1; R v Allen (2011) 109 SASR 396; R v Trimboli (1979) 21 SASR 577; R v Edwards [2009] SASC 233; R v Sutton (1983) 32 SASR 553, considered.

R v C, CA
[2013] SASCFC 137

Court of Criminal Appeal:  Kourakis CJ, Anderson and Nicholson JJ

KOURAKIS CJ.

Introduction

1. The appellant appeals against his convictions for multiple sexual offences committed against three boys over a period of about seven years.  The appellant was charged with thirty counts of sexual offending against the three complainants, MG, SG and MA.  On the trial of those charges before a jury, the appellant was convicted of five counts of indecent assault and twelve counts of unlawful sexual intercourse.

2. Specifically, the appellant was convicted of one count of indecent assault in relation to SG;[1] three counts of unlawful sexual intercourse with a person over the age of 12 years[2] and two counts of indecent assault[3] in relation to MG; and, three counts of unlawful sexual intercourse with a person under the age of 12 years,[4] six counts of unlawful sexual intercourse with a person over the age of 12 years[5] and two counts of indecent assault[6] in relation to MA.[7]

   [1]    Count 1.

   [2]    Counts 12, 16 and 18.

   [3]    Counts 11 and 15 (count 15 was charged in the alternative, the jury returned a unanimous verdict of not guilty on the charge of unlawful sexual intercourse charged as count 14).

   [4]    Counts 2, 4 and 5.

   [5]    Counts 9, 20, 22, 24, 27 and 29.

   [6]    Counts 3 and 6.

   [7]    The appellant was found not guilty by a majority verdict of unlawful sexual intercourse charged in count 7 of the Information.  A hung verdict was returned with respect to count 8, a charge of indecent assault.  A unanimous verdict of not guilty was returned on the indecent assault charged in count 26.

3. The appellant appeals on a number of grounds.  Primarily, the appellant contends that the trial of the accused miscarried as a result of the joint trial and that the trial judge failed to direct the jury adequately on the cross-admissibility of the evidence as between the counts relating to each of the complainants.  The appellant’s grounds may be summarised as follows:

   ·The trial judge erred in not ordering separate trials in respect of the three complainants;

   ·The trial judge failed to adequately direct the jury in relation to the permissible and impermissible uses of the discreditable conduct evidence with respect to each complainant;

   ·The trial judge failed to adequately direct the jury as to the appropriate use of the evidence on the separate counts;

   ·The trial judge failed to direct the jury as to the limited use that they were entitled to make of alleged admissions in relation to a particular count;

   ·The trial judge failed to adequately direct the jury in relation to the evidence of the appellant’s good character;

   ·The trial judge failed to give adequate directions to the jury in relation to the significant forensic disadvantage resulting to the appellant as a result of delay; and

   ·The trial judge erred in failing to adequately present the defence case to the jury.

4. On 1 November 2013 the Court unanimously allowed the appeal and made the following orders:

   1Permission to appeal on the additional ground granted;[8]

   2The appeal be allowed;

   3The convictions on all counts be quashed;

   4The matter be remitted to the District Court;

   The appellant was granted bail pending any new trial.  The Court’s reasons were to be provided on a later date.

   [8] During argument the appellant expanded the ground of appeal concerning separate trials, see [53].

5. The basis on which the appeal was allowed were: (1) the directions on the cross-admissibility of evidence between the counts relating to the several complainants were erroneous; and, (2) the evidence of the offending against SG was wrongly admitted in the trial of the charges alleging offending against MG and MA.  My reasons follow.

   Background

6. The appellant’s sexual offending commenced in or about 2000 and ended in approximately 2007.  The three victims became acquainted and spent a considerable amount of recreational time with the appellant because he was the father of their childhood friend, KC.

7. MG and SG are twin brothers born on 22 September 1989.  They were raised by their mother alone.  It was in or about 1999 or 2000 that MG and SG first met the appellant.  At that time the appellant was living at a house in Hackham with his wife, step-daughter and son, KC. The twin brothers attended the same primary school as the appellant’s step‑daughter and son.  It was through the friendship with KC, that the appellant came to spend time with, and, on the prosecution case, offend against, MG and SG.

8. MA was born on 31 July 1991.  MA first encountered the appellant in or about 2001 at the States Park Equestrian Centre in Onkaparinga Hills (States Park) which the appellant and his wife operated.[9]  MA’s mother and sister agisted their horses at States Park and tended to their horses on most weekdays after school. MA would accompany them because he was too young to stay at home unsupervised.  MA had no interest in horses, but over a period of time he too became friends with the appellant’s son, KC.  It was as a result of that friendship that the appellant had the ability to associate with, and offend against, MA.

   [9]    The evidence of the appellant was that he and his family moved to Cabernet Drive, Hackham (the Hackham house) in 1999 (T 478). In or around June or July 2000, the appellant and his family moved to the States Park residence (T 478). In about June or July 2003, the appellant and his family returned to live at the Hackham house (T 481). Two years later, in 2005, the appellant and his family moved to live at a property in Meadows (T 481).

   The testimony of SG

9. SG was twenty-three years of age when he gave evidence.  He became acquainted with the appellant’s family after his twin brother, MG, started “dating” the appellant’s step-daughter.  He testified that he started going to the appellant’s house when he was about nine or ten years old, where he would watch movies and play eight-ball.

10. SG gave evidence of occasions when the appellant would put on an adult movie in their presence.  He also described a “game” based on eight-ball which the appellant played with him and the other children at both the Hackham house and the States Park residence.  The game involved SG and KC dropping their shorts and doing a lap of the eight-ball table if they lost a match to the appellant.  SG testified that he was aged around ten or eleven years at that time.

11. SG also gave evidence of a visit to Maslin Beach when he was about the same age.  Whilst at the beach the appellant, KC and SG went swimming naked.[10]  The appellant did not deny swimming naked.  The appellant’s evidence was that it was KC’s idea to swim naked and that KC and SG went into the water first.  The appellant watched from the beach, only entering the water after the KC and SG had got out.

    [10]   This evidence is inconsistent with evidence given by MG, his twin brother. MG testified that he was at Maslin Beach with the appellant, KC and SG. I refer to [17]-[18] ] below.

12. SG also testified that he would swim naked with the accused at the State Swim Centre at Sheriffs Road.  At the time the appellant was working at the State Swim Centre.  The naked swimming occurred after hours, when the pool was closed to the public.  After the swim, while still at the State Swim Centre, the appellant would watch him, his brother (MG) and KC shower naked.

13. SG gave evidence that when he showered at the appellant’s Hackham house, the routine was that KC would shower first, followed by himself and then the appellant.  SG testified that on one occasion the appellant had an erection whilst watching him showering at the Hackham house.  SG testified about another occasion on which the appellant went into the shower while SG was washing his hair and asked SG to grab his penis.  Even though SG refused the appellant took hold of SG’s penis.  SG testified that he jumped out of the shower and went home.  Sometime later, the appellant asked him not to tell anyone.  The touching of the SG’s penis was the subject of the indecent assault charged in count 1 of the Information.  It was the only charge of an offence against SG.

14. Even though SG testified that the appellant never touched SG’s penis again, he did describe two other instances, whilst in the shower, when the appellant attempted to do so.

15. The appellant gave evidence with respect to the showering generally.[11]  The appellant testified that, after a visit to the beach, he would send the boys to the bathroom to get changed and showered.  He said that he probably did enter the bathroom to pick up their shorts and hang them on the line.[12]  He accepted that he would have dried KC, who was still quite young.  The appellant denied going into the shower naked at either the Hackham house or States Park residence.[13]

    [11]   T 505.

    [12]   T 505.

    [13]   T 505.

    The testimony of MG

16. MG, like his twin brother, was 23 years of age when he gave evidence.  MG started going to the appellant’s house when he began “dating” the appellant’s daughter.  According to the evidence of MG this would have been in late 1998 when MG was in grade 5. By the time that that relationship had subsided, MG had formed a friendship with KC, the appellant’s son.  As a result, MG continued to spend time with KC and, consequently, the appellant.

17. MG gave evidence of an incident that occurred in the shower at the appellant’s Hackham house following a swim at Maslin Beach.  MG testified that he had gone swimming with KC, the appellant and his brother, SG.  The three boys had also been boogie boarding.  On return to the Hackham house they all had showers.  MG had a rash on his chest from riding the boogie board and when he got out of the shower the appellant, who was about to enter, had a conversation with MG about the rash.  The appellant offered to apply some lotion to MG’s stomach and chest.  MG accepted the offer but the appellant abused the opportunity and masturbated MG.  The appellant said to MG, “this isn’t something you would say to your friends at school”.[14]  The masturbation of MG’s penis was the subject of the indecent assault charged as count 11 on the Information.

    [14]   T 238.

18. The evidence of MG regarding the circumstances surrounding this offending is inconsistent, in a number of respects, with the evidence of the appellant and KC.  The appellant gave evidence that he had only ever gone to Maslin Beach with KC and SG.  The appellant specifically said that MG was not with them.  He testified that KC and SG decided that they wanted to swim naked because everyone else was. KC testified that he had never gone to Maslin Beach with MG.[15] KC also refuted MG’s evidence that, following a trip to Maslin Beach, there would be a procession line of people showering at the Hackham house.[16]  In addition, and significantly so, the evidence of SG supports the appellant and KC’s accounts that MG did not go to Maslin beach with SG, the appellant and KC. SG’s evidence on this occasion was that “it was just me, [KC] and [the appellant]”.[17]

    [15]   T 638.

    [16]   T 639.

    [17]   T 229.

19. The offence charged as count 12 on the Information relates to an incident of unlawful sexual intercourse which allegedly occurred in the shed at the appellant’s Hackham house.  MG testified that it was after his 14^th birthday in September 2003.  It follows that this incident must have occurred after the appellant and his family had moved back into the Hackham house from States Park in or about the year 2003.

20. MG gave evidence that, when KC and his brother were riding their bikes the appellant asked MG for assistance in the shed at the Hackham property.  The appellant offered to explain the term “head” and did so by fellating MG whilst playing with his own penis.  The appellant then had MG fellate him. 

21. Count 14 of the Information charged unlawful sexual intercourse that MG testified had occurred at the appellant’s Hackham property.  The appellant was ultimately found not guilty of unlawful sexual intercourse, but guilty, in the alternative, of indecent assault.[18]  MG gave evidence that the offence occurred when his mother had gone to the Clipsal 500 race. In cross-examination, MG conceded that the offending may have taken place a couple of weeks after that.  The appellant in his evidence accepted that there probably was an occasion when MG and SG stayed at the Hackham house whilst their mother was at the Clipsal 500.

    [18]   Count 15 on the Information.

22. MG’s evidence about the Clipsal 500 incident was that he was sleeping over at the Hackham house and watching Braveheart in the lounge room with the appellant, KC, SG and another of KC’s friends.[19]  When everyone else fell asleep, the appellant, whilst on the couch, began touching MG’s penis beneath his shorts.  The appellant then indicated towards the bathroom.  MG followed the appellant to the bathroom where an act of fellatio was performed on MG by the appellant.  KC contradicted the evidence of MG with respect to the circumstances surrounding this offending in the following respects.  KC said that he did not recall watching Braveheart whilst MG was at the house.[20]  KC also testified that MG did not stay over at the Hackham house after they returned to live there for the second time.[21]  The appellant’s wife also gave evidence that MG did not stay at the family’s Hackham house after they had returned from living at States Park.[22]

    [19]   T 243.

    [20]   T 647.

    [21]   T 647.

    [22]   T 587.

23. MG gave evidence of an incident which occurred in the garden shed at the appellant’s Hackham house.  MG testified that at the time he was aged 15 years.  MG went out to the garden shed with the appellant and in the garden shed the appellant performed an act of fellatio on him.  This is the subject of the unlawful sexual intercourse charged as count 16 on the Information.

24. Count 18 of the Information charged another count of unlawful sexual intercourse.  MG gave evidence of an occasion when the appellant inserted his penis into MG’s anus.  MG testified that the incident occurred in the lounge room of the appellant’s Hackham house, the morning after they had watched Braveheart.  At the time, SG and KC were out on a bike ride and MG was watching TV.  MG’s evidence was that the appellant fellated him and then asked him to lie on his back.  The appellant then penetrated his anus.  MG said that it hurt and the appellant pulled his penis out, and that was it.

1. In addition to the above, MG also gave evidence of uncharged acts or discreditable conduct committed by the appellant.  That conduct included; the appellant suggesting to MG that they swim naked at Maslin Beach;[23] that MG swam naked with the appellant at the State Swim centre; and that the appellant had watched MG while he showered.  MG also testified of an occasion, after MG had turned 17, on which the appellant showed him pornography and engaged in sexual conduct with MG. 

   [23]   I note again the conflicting evidence with respect to Maslin Beach.

2. MG gave a description of the appellant’s penis and said that it was circumcised.

3. MG also gave evidence that the appellant disclosed that he had a sexual relationship with a boy who had the same Christian name as MA.  The appellant told MG of an occasion on which KC had gone to bed and the appellant and M, the other boy, had masturbated each other.[24]

   [24]   T 255-256; T 285-286.

   The testimony of MA

4. At the time of giving evidence MA was aged 21 years. He met KC, the appellant’s son, when he went to the States Park Equestrian Centre with his mother and sister.  MA was about eight or nine years of age when he first attended States Park and he testified that he would go there with his mother and sister on most weeknights.

5. The first occasion of offending against MA occurred in early 2001 at the appellant’s States Park house.  MA was watching television with KC when the appellant called MA into the office, shut the door and exposed his penis to MA.  The appellant proceeded to ask MA to show him his penis; he then began to touch MA’s penis and testicles.  The appellant then dropped to his knees, put MA’s penis into his mouth and fellated MA while he masturbated.  That offending is the subject of the unlawful sexual intercourse charged as count 2 on the Information.

6. KC gave evidence at trial.  He testified that he could not recall the appellant ever calling MA into his office at the States Park residence. KC said that MA and he were always in the company of each other when MA visited.[25]  The appellant denied that MA had come into his office at States Park at any time.

   [25]   T 618.

7. MA gave evidence of a game played, called “Truth or Dare”, involving MA, KC and the appellant.  The game involved MA, KC and the appellant dropping their pants and running to a fence or gate at the States Park property.  KC contradicted MA’s account, testifying that the appellant was at work and therefore was not present when this game was played and that the game was MA’s idea.[26]  The appellant denied that he had ever played this game with KC and MA.

   [26]   T 611.

8. MA testified about various other uncharged sexual acts which the appellant performed on him in the office at the States Park residence.  MA said that these acts would occur almost every night, over a two and half year period, and in the same manner.  That is, the appellant would kneel down in front of MA, on occasions touching MA, but always masturbating himself.  MA said that this would occur at or around 5.00pm most weeknights.  KC also contradicted MA’s account of the uncharged acts. KC gave evidence that the appellant was working at Amos Excavation and then State Swim in this period and that he would not arrive home from work until about 6.30pm or 7.00pm.[27]  The evidence of the appellant was relatively consistent with KC in that respect.  The appellant testified that he would get home from work at about 6.00pm when he was working at Amos Excavation.[28]

   [27]   T 611.

   [28]   T 479.

9. MA also gave evidence about a game of “hide-and-seek” which was played at the States Park house.  The offence of indecent assault charged as count 3 of the Information was committed in the course of such a game. MA gave evidence that whilst playing the game with KC, he hid in a closet where the appellant found him.  The appellant pulled down MA’s pants and touched him on the penis and testicles.  In his evidence the appellant accepted that he played games such as “hide-and-seek” with the children, however he denied fondling the genitalia of MA in the course of such a game.

10. MA gave evidence about having sleepovers at the States Park house.  According to MA, his mother had agreed that he could stay over, however, when his mother came to give evidence, she was unsure whether MA had slept over at States Park at all.[29]  Count 4 on the Information relates to a charge of unlawful sexual intercourse committed during a sleepover in 2001.  MA gave evidence that he generally slept on a mattress in the lounge room.  Whilst watching television in the lounge room KC fell asleep and the appellant then took KC to his bedroom.  After everyone had gone to bed, the accused came to the mattress in the lounge room and sat down.  The appellant then fellated MA whilst masturbating himself until he ejaculated on the floor.  KC gave evidence that he slept on the lounge when MA slept over and was not put back in his bedroom by the appellant.[30]  The appellant’s wife also gave evidence that she would often ensure the kids were asleep before she went to bed.[31]  The appellant agreed that MA had slept over at the States Park house, and that MA would sleep on the lounge. However, the appellant said that KC would always sleep on the couch on those occasions.

    [29]   T 399.

    [30]   T 646.

    [31]   T 585.

11. MA gave evidence that he showered at the States Park residence, on occasions with KC and on other occasions alone.  On some occasions the appellant joined MA in the shower and fellated MA whilst masturbating himself.  This conduct formed part of the course of uncharged acts committed against MA.

12. Count 5 on the Information charged unlawful sexual intercourse arising out of a game of “hide-and-seek”.  The evidence was that the appellant fellated MA whilst masturbating himself in a bedroom of the States Park house in or about 2002.

13. Count 6 charged an offence of indecent assault which took place in a shed on the States Park property.  Inside the shed the appellant touched MA and himself, and rubbed MA’s testicles and penis with a steel brush.

14. Count 7 on the Information alleges an act of fellatio at the State Swim centre.  MA testified that he went to the State Swim centre with the appellant and KC on an occasion when they all swam naked in the swimming pool.  MA gave evidence that later, when KC left him and the appellant alone in the change room together, the appellant masturbated MA, before performing an act of fellatio on him.  The appellant was found not guilty of this offence.

15. The jury were unable to agree on a verdict on the offence of indecent assault charged by count 8 on the Information.  Even though MA gave evidence of visiting the Noarlunga Swim Centre with the appellant and KC when the appellant had exposed himself in the spa, MA failed to give any evidence-in-chief that the appellant had indecently assault him there.  The charged offence was not raised until cross-examination when MA was reminded of his allegation to police about it.  MA then testified that the appellant had touched him on the penis whilst in the spa at the Noarlunga Swim Centre.  Against that testimony, KC gave evidence that MA did not leave his side on visits to the Noarlunga Swim Centre.[32]  In his evidence, the appellant accepted that he had taken MA to the Noarlunga Swim Centre once every two months, but claimed that he had never taken MA into the sauna or spa area.

    [32]   T 619.

16. It was alleged that the unlawful sexual intercourse offending against MA so far described was committed when MA was under the age of 12 years.  The offence of unlawful sexual intercourse charged by count 9 on the Information is the first count that alleged offending by the appellant, against MA, when MA was of or over the age of 12 years and under the age of 17.

17. Count 9 charged an incident in the disabled change room at the Noarlunga Swim Centre.  MA testified that in the change room the appellant performed an act of fellatio on him.  It will be remembered that KC testified that he was certain MA did not leave his side when they were at the Noarlunga Swim Centre.[33]  The appellant acknowledged that MA had used the disabled change room at the Noarlunga Swim Centre, but denied that he had ever entered the change room and sexually assaulted MA.

    [33]   T 619.

18. MA gave evidence of an event that occurred at the appellant’s Hackham house.  The appellant’s evidence was that the family had moved from the States Park residence back into the Hackham house in June/July of 2003.  MA testified that on an occasion when he slept over at the Hackham house the appellant came into the bathroom when he was in the shower.  The incident culminated with the appellant fellating MA in the shower.  This offending is the subject of count 20 on the Information, a charge of unlawful sexual intercourse.  Contrary to the evidence of MA, KC and the appellant’s wife testified that MA never slept over at the Hackham house.[34]

    [34]   T 568 and T 614.

19. Count 22 on the Information is also a charge of unlawful sexual intercourse.  This count relates to an act of fellatio which MA testified was performed in the lounge room of the Hackham house.  MA testified that he was sleeping over on a mattress on the lounge room floor. MA and KC were watching television with the appellant.  When KC fell asleep the appellant picked KC up and carried him to bed.  The appellant returned to the lounge room and fellated MA whilst they were both on the mattress.  It will be remembered that the appellant’s wife and KC testified that MA never slept over at the Hackham house.

20. MA testified as to an incident which occurred in the appellant’s car after he was picked up from the Noarlunga Swim Centre.  MA gave evidence that he believed that he was in primary school at the time of this incident and that the appellant was residing at the Hackham house.  MA testified that the appellant pulled the car over and exposed his penis before touching MA’s penis and then fellating him.  That offending is the subject of count 24 on the Information.

21. Count 26 on the Information concerned a charge of indecent assault occurring at the appellant’s Meadows house.  The evidence was that the appellant and his family moved to the Meadows house in 2005. MA testified about an occasion in the appellant’s bedroom when the appellant lay on top of MA, without pants on, and rubbed his body over MA’s.  The appellant was found not guilty of this offence.

22. Count 27 on the Information charged an offence of unlawful sexual intercourse which MA again testified occurred at the appellant’s Meadows property.  MA gave evidence that his mother had come to the Meadows house to pick him up.  The appellant’s wife and MA’s mother had coffee in the kitchen when she arrived.  It was at that point that the appellant asked MA to assist him at the stables.  At the stables, the appellant asked MA to expose his penis.  The appellant then knelt and fellated MA, again simultaneously masturbating himself.

23. MA gave evidence of a trip, in late 2005 or early 2006, involving a day at Greenhills Adventure Park (”Greenhills”) and an overnight stay at a holiday house located in Victor Harbour.  At this time, MA was 14 or 15 years of age.  MA testified that at the holiday house, after KC had gone to bed, the appellant and he played a game of “strip jack”.  During the course of that game the appellant performed an act of fellatio on MA.  That offending is the subject of the unlawful sexual intercourse charged as count 29 of the Information.  MA gave evidence of other sexual acts committed against him by the appellant at the holiday house.

24. The evidence of MA with regard to the Victor Harbour offending was inconsistent with the evidence of KC, the appellant’s brother and the appellant in the following respects.  The holiday house was owned by the appellant’s brother and was located at Hindmarsh Island, not Victor Harbour.  The appellant’s brother testified that the appellant did not, and could not go to the holiday house unless he, the appellant’s brother, was there.  The appellant’s brother gave evidence that he had been to the holiday house with the appellant, KC and one of KC’s friends.  KC’s evidence was also that his uncle was present at the holiday house on the occasion MA stayed in it.  The appellant accepted in his evidence that he took MA to Greenhills and to the holiday house at Hindmarsh Island but also testified that his brother was there.  The appellant also denied that he was alone with MA at the Hindmarsh Island house and denied that any sexual impropriety took place.  The appellant testified that MA and KC had gone to bed before him and his brother, and that he did not shower with MA on that occasion.

25. Evidence of uncharged acts given by MA included acts of fellatio performed on other occasions; the appellant watching MA in the shower; the game of “truth and dare” which involved running with pants down to a fence or gate at the States Park property. There was also evidence about the appellant masturbating MA with Vaseline; sexual activity that occurred at Monarto, where equestrian events were held,[35] and making sexually inappropriate remarks. MA also testified that the appellant had spoken to him about accessing pornographic material online.

    [35]   KC gave evidence that was inconsistent with MA’s account of the circumstances surrounding the uncharged acts at Monarto. KC testified that MA slept with him and five others in a dormitory (T 617).

26. During the course of his evidence, MA gave evidence describing the appellant’s penis.  He said that the penis was circumcised and it had a skin tag, which he detailed as small and appearing halfway along the side of the penis.  The appellant’s evidence was that he has a mole or nodule on his penis.

27. MA also gave evidence that the appellant disclosed to him that he had had sex with another boy.  MA testified that the appellant related to him an occasion when he had been to the beach near Greenhills Adventure Park with a boy with the same Christian name as SG.  The appellant told him that that boy had dropped his bather shorts, and that the appellant had followed him into the water.[36]

    [36]   T 141-142.

    Separate trials

28. Before trial the appellant filed an application that the charges relating to MA be “severed” from the charges relating to SG and MG on the grounds that the evidence admissible on the counts relating to SG and MG was not admissible on the counts relating to MA.  Strictly the application was one for separate trials and not severance.  The Judge refused the application for “severance” but it is reasonably clear that her Honour also addressed the question of separate trials.  The notice of appeal complains that the Judge erred in dismissing the application.  It is common ground that the separate trials question falls to be determined by reference to the cross-admissibility of the evidence between the counts which are the subject of the application and the remaining counts.[37]

    [37]   Criminal Law Consolidation Act 1935 (SA), s 278(2a)(b).

29. On the hearing of the appeal, the appellant’s counsel sought to expand the filed ground on this issue to include a complaint that there should also have been separate trials of the charges relating to each of the complainants MG and SG even though no such application was made to the Judge. There can be no wrong decision on a question of law within the meaning of s 352 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) unless a question of law was raised and wrongly decided by the trial Judge. Therefore, there can be no appeal brought on the ground that there was an error of law in holding a joint trial of the counts relating to SG and MG. Insofar as the foundation of the ground is a complaint that there was a miscarriage of justice by the reason of a joint trial of the counts relating to SG and MG, then the failure of the appellant’s counsel to make that application is a very weighty consideration to the contrary.

30. Notwithstanding the obiter observations of White J in R v C, CN,[38] in my view s 34P of the Evidence Act 1929 (SA) does not require a trial judge to intervene in the course of evidence beyond that which is appropriate in an adversarial trial. Section 34P(2) of the Evidence Act must be construed in the context of the common law adversarial trial process and the accepted common law proviso to the application of evidential rules that their application may be waived by the party who is entitled to object to the admission of the evidence. A trial judge is not bound to rigidly apply the evidential rule enacted by s 34P of the Evidence Act against the position taken by the parties. It is a general rule of the common law that evidence can be received by consent. There is no reason to construe s 34P of the Evidence Act as abrogating that principle. I prefer the view of s 34P of the Evidence Act taken by Blue J in R v C, CN,[39] and confirmed by the Full Court in R v C, G.[40]

    [38]   R v C, CN [2013] SASCFC 44, [18].

    [39]   R v C, CN [2013] SASCFC 44, [76].

    [40]   R v C, G (2013) 117 SASR 162, [50]-[53].

31. I would hold that the Judge was right not to order a separate trial of the counts relating to MA from those relating to MG, but that her Honour should have ordered a separate trial of the count relating to SG.  Even though counsel at trial did not argue that the charge relating to SG be heard separately from the charges relating to MG, I would hold that the joint trial of those charges has resulted in a miscarriage of justice.  My reasons follow.

32. The principles governing the admissibility of the evidence of the uncharged discreditable conduct committed against each of the complainants on a trial of the charged offences against those complainants is plain enough.[41]  I will deal only with the question of cross-admissibility of evidence between the counts charging offences against the different complainants.

    [41]   R vMaiolo (No 2) [2013] SASCFC 36; R v Nieterink (1999) 76 SASR 56; R v Bonython-Wright [2013] SASCFC 87.

33. 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).[42] 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.[43] 

    [42] (1988) 165 CLR 292.

    [43]   See discussion of this question in R v Bonython Wright [2013] SASCFC 87, [49]-[50].

34. 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.

1. Thus it is that on a joint trial of offences against multiple complainants, even though the ultimate question for the jury remains whether it is satisfied beyond reasonable doubt that the appellant committed each of the offences with which he is charged, a high degree of similarity in the complainants’ accounts which excludes the hypothesis of independent concoction leaves, as the practical forensic issue, whether the possibility of collusion has been excluded beyond reasonable doubt.

2. To put the matter a little differently, let it be supposed that there were separate trials ordered for the counts charging offences against MA and MG.  If in the cross-examination of MA the accused’s counsel were to put, either that MA bore the accused malice which caused him to bring a false accusation, or that MA’s complaint arose out of internal psycho-sexual confusion, it could not be doubted that the evidence of MG would, if the similarities between their accounts were sufficiently close, be strongly probative that that was not so.  The strong probative force of MG’s evidence lies in the improbability that both MG and MA would independently be motivated to make closely matching, but false, complaints.  It is not necessary, of course, for there to be cross-examination which expressly puts that hypothesis.  The issue is one which inevitably arises when accusations of this kind are made.  On the admission of the similar account of MG, the primary forensic issue would become one of collusion or not because of the strong probative force of MG’s evidence in excluding the hypothesis that MA’s account was the product of his malice or confusion.

3. The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they 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.  The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender.  That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence.  It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score.  The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion.  A defence of collusion undermines the very similarity on which the prosecution relies.  The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.

4. The following shared features in the accounts of all of the complainants render it highly improbable that their complaints are the product of an unreliability or mendacity peculiar to each of them:

   ·The showing of pornography to the complainants SG and MG and the discussion with MA about obtaining pornographic material online.

   ·The playing of games which involved the boys exposing their genitals.

   ·Swimming naked with the complainants.

   ·Using the opportunity provided by showering with the complainants to stare at and touch their genitals.

5. As between MG and MA there were further similarities in their accounts of:

   ·How the appellant would fellate them whilst masturbating himself.

   ·The way in which the appellant would initiate sexual activity when they slept over.

   ·The appellant disclosing to them his sexual activity with another youth.

6. I acknowledge that the extent of the sexual offending against the complainants varied.  Importantly, with respect to SG, the conduct went no further than the touching of his genitals in the shower, whereas with respect to both MA and MG, the alleged offending generally comprised acts of fellatio performed by the appellant on both of them whilst he masturbated himself.

7. The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers.  The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.

8. The similarities between the accounts of MA and MG are many.[44] It is highly improbable that their accounts would bear that degree of similarity if they were independently fabricated. For reasons which are more conveniently given below in [83] the use of the evidence for similarity of account purposes is sufficiently distinct and separate from the impermissible use of that evidence to conclude that the probative value of the evidence outweighs its prejudicial effect. The evidence was cross-admissible and a joint trial was therefore necessary pursuant to s 278(2a) of the CLCA.

   [44]   The appellant only engaged in anal intercourse with MG, not MA, however the appellant did discuss anal intercourse with MA on two occasions.  MA’s evidence was that the appellant suggested anal intercourse but that he, MA, did not feel comfortable engaging in anal intercourse (T125-126).

9. The probative value of the similarity in SG’s account of the more limited offending against him, with the accounts of MG and MA, is not as strong as the similarities between their accounts.  However, I take the view that the common features identified in [62] above are capable of strongly excluding the possibility that SG independently concocted his complaint.  In particular, on his account, MG was present on many of the occasions described by SG, and MG’s evidence was to a similar effect.[45]  It is very unlikely that they concocted those events independently of each other.  I will deal with the ultimate, and more difficult, question of whether the probative value of SG’s evidence, when used for similarity of account purposes, outweighs its prejudicial effect after discussing the second cross-admissible permissible use of the evidence of the complainants.

   [45] I note the conflicting evidence with respect to Maslin Beach at [18].

10. The second basis for cross-admissibility is that the evidence showed the appellant to have a particular propensity to engage in the conduct described by the complainants.  I should first explain further what I mean by a propensity basis for cross-admissibility.  It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires.  The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning.  I have explained the latter in [57]-[60] above.  The former involves three essential steps in the circumstances of this case.  The first step is to determine whether the evidence proves beyond reasonable doubt that the appellant committed sexual offences or other discreditable conduct against any one of the three complainants.  If the jury are so satisfied with respect to at least one of the complainants, the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants.  If the jury are so satisfied, the third step is to take that particular propensity into account, together with the evidence directly bearing on the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either one, or both, of the remaining complainants.

11. Even though I have described the steps as sequential, it is permissible to consider the evidence given by two or more complainants together to arrive at both the intermediate and final conclusions.  As Wells J explained in R v Sutton (Sutton),[46] circumstantial evidence is admissible and probative even though its full strength is only realised when it is reinforced by the combined force of the other items of circumstantial evidence.

    [46] (1983) 32 SASR 553, 562-563.

12. I am satisfied that the evidence of offending against either of MA and MG was capable, if accepted, of establishing an embedded sexual proclivity to engage in sexual relations of the kind described by them with pubescent boys.  The duration of the sexual relationship the appellant maintained with each of them, and the frequency and nature of his sexual activity, gave the evidence strong probative force as circumstantial evidence of sexual motivation to commit offences of that kind against other pubescent boys. 

13. The particular features of the offending which show a proclivity which extends beyond a singular relationship are the opportunistic nature of the offences and the almost exclusively sexual focus of the relationships.  Moreover, in accordance with the reasoning explained by Wells J in Sutton, the intermediate conclusion that the proclivity manifested by the conduct against each of the complainants is not confined to that complainant can be reached by having regard to the evidence of the offending against the other complainant.

14. The evidence of MA and MG about the particular combination of fellatio and self masturbation frequently engaged in by the appellant also shows a strong disposition for a particular form of sexual gratification.  That aspect of their testimony, in the context of the whole of the evidence, is in itself strongly probative.

15. I am also satisfied that the evidence of the offending against MA and MG shows a proclivity to commit offences of the kind committed against SG whenever an opportunity to do so arose.  The opportunistic advantage taken when the complainants showered to commit offences of that kind is a strong feature of the evidence of MA and MG.

16. On the other hand, I am not persuaded that the evidence of the much more limited conduct with SG was capable of establishing a proclivity that would have strong probative force as circumstantial evidence of the charged offences against MA and MG.  Looking at the offending against SG retrospectively, and on the assumption that the offences were committed against MG and MA, it may well be concluded that the offending against SG was a manifestation of the same propensity which led to the offending against MG and MA.  However, for the purposes of admissibility the question is whether the evidence of the offending against SG, standing alone, manifests a propensity which is strongly probative of the greater offending against MG and MA.  I am not satisfied that it does.

17. It now remains to evaluate whether the probative force of the evidence, both as similarity of account evidence and as evidence of predisposition, outweighs the prejudicial effect. Here the terms of s 34P(3) of the Evidence Act require careful consideration.  That subsection provides:

    (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.

18. 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. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence.  Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity.  I will refer to the impermissible reasoning as “bad person” reasoning.

19. The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold.  First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt.[47]  The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity.  The improbability can arise from a wide range of circumstances and in many different ways.  Common examples include “cauliflower ear” similarity in modus operandi,[48] coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable,[49] and the improbability of complainants independently fabricating similar accounts.[50]

    [47]   R v Hissey (1973) 6 SASR 280; R v Ball [1911] AC 47.

    [48]   R v Straffen [1952] 2 QB 911.

    [49]   Martin v Osborne (1936) 55 CLR 367; Harriman v The Queen (1989) 167 CLR 590; R v Armstrong (1990) 54 SASR 207.

    [50]   Hoch v The Queen (1988) 165 CLR 292.

20. Section 34P(3) of the Evidence Act directs attention to the degree of difficulty in differentiating the impermissible and permissible forms of reasoning in the particular case. The point is best illustrated by an example. Consider a case in which a defendant is charged with a series of six horrific crimes in which the offender left at the scene of the crime the same page from a particular book, six copies of which are found in the defendant’s possession, with the same page missing from each of the books. The permissible form of reasoning towards guilt in that case is based on improbability reasoning and is completely independent of disposition or propensity reasoning. In fact, the propensity is only revealed after the conclusion of guilty is reached by reference to the improbability of the accused’s coincidental possession of the six books with the same missing page. For that reason, s 34P(3) of the Evidence Act would not weigh heavily against the admission of the evidence. True it is that the evidence of the series of murders might still be very unsettling, to say the least, but s 34P(3) of the Evidence Act does not call for an evaluation of the likely emotional reactions of the jury to the horrific circumstances of the offences, nor for an assessment of the risk they might reason impermissibly because of that emotional reaction.

21. In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct.  Violent conduct, sexual or otherwise, committed over the course of a particular relationship will often be strongly probative of a proclivity to commit that kind of crime whenever the opportunity arises because, as a matter of human experience, there are some such relationships in which conduct of that kind is compulsively repeated.  For that reason evidence of that kind has long been held to have a probative force which outweighs its prejudicial effect and therefore to be admissible.[51]  However, as the facts and decision in Phillips v The Queen[52] illustrate, when the discreditable conduct is more random, not arising within relationships of a particular kind, it may suggest, at most, no more than that the accused is a bad person, which is of no probative weight at all.  Dishonest conduct and prior involvement in the drug trade are other examples of discreditable conduct which, although revealing the accused to be a bad person, are less likely to support an inference that the accused has an innate tendency or disposition which can support a permissible form of reasoning.[53]  Of course, even in conduct of that kind the temporal and other circumstantial connections between the discreditable conduct and the offence charged may show that they are both aspects of an ongoing single criminal enterprise.[54]  Persons who embark upon a criminal enterprise are generally motivated to maintain it.  As Doyle CJ observed in R v Long and McDonnell,[55] the reasoning is “either a form of propensity reasoning or is so close to it that the distinction becomes insignificant”.[56]

    [51]   R v Hissey (1973) 6 SASR 280; R v Nieterink (1999) 76 SASR 56; R v Maiolo (No 2) [2013] SASCFC 36.

    [52] (2006) 225 CLR 303.

    [53]   R v Soteriou [2013] SASCFC 114, [30] (Vanstone J); Cf Harriman v The Queen (1989) 167 CLR 590, 635-636 (McHugh J).

    [54]   Harriman v The Queen (1989) 167 CLR 590; R v Conley (1982) 30 SASR 226.

    [55] (2002) 137 A Crim R 263.

    [56] (2002) 137 A Crim R 263, [39].

22. I observe here that the emphasis I would place on identifying the forms of reasoning, and objectively assessing the degree to which they are distinguishable, is not only supported by the text of s 34P(3) of the Evidence Act; there are matters of context and legal policy which also point in the same direction. 

23. First, an enquiry into the degree to which the jury’s reasoning might actually have been compromised in a particular case is problematic.  It requires some assumptions to be made about the capacity of juries.  For example, is it to be assumed that a judge has a greater capacity to keep the reasoning distinct than a jury of twelve.  A judge is of course trained and experienced but, on the other hand, does not have the benefit of having his or her reasoning tested by jury room debate.  

24. Secondly, 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.

25. Turning to this case, reasoning from the similarity of the accounts of all three complainants to the intermediate conclusion that it is improbable that the complainants independently fabricated them is distinct and separate from impermissible “bad person” reasoning.  It directs the jury’s attention to an issue which is anterior to a finding, or even the formation of a provisional view, about whether the appellant engaged in the alleged conduct.  The discreditable conduct is admitted on the question of the likelihood of the complainant’s independently inventing their accounts.  That issue can readily be quarantined from issues of propensity or disposition.  I acknowledge that disapproval of the conduct alleged may distract from a dispassionate appraisal of the weight of that evidence for that purpose but that is a risk in the appraisal of evidence generally, which is not exacerbated by overlap between the permissible and impermissible uses of the evidence.

26. On the alternative permissible use of the discreditable conduct evidence to show a proclivity to commit sexual offences against the school friends of the appellant’s son, there is much less separation between the impermissible and permissible uses of the evidence.  The only point of distinction is the intermediate step of finding that the discreditable conduct evidences an innate proclivity to commit offences of the kind committed against the complainants whenever the opportunity arises.  In the case of the charges relating to MG and MA there is no appreciable risk of misuse of the evidence of discreditable conduct committed against MG and MA because the offending against each of them is similar in both nature and frequency, and strongly shows a proclivity on the appellant’s part to engage in sexual activity of a particular kind with his son’s friends.  Nor is there a risk of misuse of the evidence of offending against MG and MA in the case against SG.  The appellant’s disposition to shower with and engage in genital fondling with his son’s friends when the opportunity arose is very strongly manifested by the evidence of the conduct against MG and MA.  Importantly, the nature of the alleged offending against SG does not extend beyond the disposition manifest by the evidence of MG and MA, indeed it is a common subset of the conduct alleged against all three complainants.  Finally, the discreditable conduct is of a relatively peculiar kind.  All three considerations just referred to leave very little room to engage in impermissible “bad person” reasoning from the evidence of the offending against MG and MA, other than by inferring an innate propensity or disposition from that evidence.

1. However, the same cannot be said of the weight of propensity revealed by the evidence of the touching of SG in the shower in proving the anal and oral sexual intercourse alleged with respect to MG and MA.[57]  For the reasons given in [74] above, the evidence of SG is not probative of a predisposition to commit the more extensive sexual offending described in the evidence of MG and MA.  If the evidence of SG were admitted in the trial of the charges relating to MG and MA for its, permissible, similarity of account purpose there is a very real risk that the jury would also engage in, impermissible, “bad person” reasoning from the evidence of SG.

   [57]   Refer to footnote 44.

2. A Judge would, of course, direct the jury, or himself or herself, not to reason in that way.  In the ordinary course, because similarity of account reasoning is so clearly distinct from predisposition reasoning, that warning is likely to sufficiently constrain the prejudicial effect of admitting the evidence to allow for its admission.  However, in this case, because the evidence of MG and MA is also admissible for predisposition purposes, the jury could not be given a blanket warning against reasoning that the accused is the sort of person who might commit several offences of the kind described by MG and MA.  Indeed, the jury must be directed on the use of the evidence of MG and MA for the very purpose of showing a proclivity to commit the particular form of sexual abuse they described.

3. 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.

4. The prejudicial effect of the evidence of SG in the prosecution case against MG and MA is therefore strong.  On the other hand, it does not have strong probative force as propensity evidence and the similarity of account use of the evidence, although strong, is not overwhelming because the offending against SG did not include the oral and anal intercourse alleged by MG and MA.[58]  For the above reasons, I conclude that the probative value of the evidence of SG in the trial of the charges against MG and MA does not outweigh its prejudicial effect.

   [58]   Refer to footnote 44.

5. It follows that the evidence of offending against MA was admissible against the appellant on the counts charging offending against MG and SG, and the evidence of offending against MG was admissible on the counts charging offending against MA and SG, on both the similarity of account use of the evidence and its use as tendency evidence.  However the evidence of SG was inadmissible in the trial of offences against MG and MA because, despite its permissible similarity of account use, the appreciable risk that the jury would also use the evidence, impermissibly, as “bad person” reasoning demonstrating a proclivity to commit the offences committed against MG and MA, outweighed its probative value.  The convictions of MG and MA must therefore be set aside because of the wrongful admission of the evidence of the offending against SG.

6. I acknowledge that the effect of my analysis is that the great body of evidence of the appellant’s offending against MG and MA is admissible on the trial of the single offence against SG.   The sheer volume of the former offending might, in one sense, be said to “swamp” the evidence directly bearing on the charge of the single offence against SG.  However, for the reasons which I have given to the extent that the evidence is overwhelming, it is so because it has much probative force.  The proclivity and similarity of account uses of that evidence convert the case against the appellant from one of “oath against oath” to a strong case based on both circumstantial and direct evidence.

   Directions

7. The Judge directed the jury on the cross-admissibility of the evidence in the following passages:

   The third direction that I must give you about the way the evidence may be used is this: you might find that the evidence of the accused’s treatment of the complainants is so similar or has about it an underlying unity of system so that the only rational explanation for the evidence of the three complainants is that it is true, it could not be explained by mere coincidence.

   …

   Further, you would need to be satisfied beyond reasonable doubt that the only rational explanation for the similarity of the evidence of two or all three of the complainants is that it is true. Not only is it a rational inference, but it must be the only rational inference that the accused did those things, and you can exclude any other rational explanation.

   If you are satisfied that there is no other rational explanation for the similarities or the underlying unity of system that you find established beyond reasonable doubt between the complainants, then you may use the evidence in respect of which you are satisfied in assessing the evidence of the other complainants.

   …

   It is when you put all of these features together, [the prosecutor] says, and consider them as a whole that the underlying unity of system in which the accused engaged with each of the boys, it revealed such a pattern that there could be no other rational explanation for it other than the fact that these events occurred.

   On the other hand, [counsel for the defendant] says there is no such pattern or underlying unity of system. He drew your attention to a number of different features of the evidence of the complainants from which he suggests that you cannot reject as a reasonable possibility some form of concoction or reconstruction arrived at by each of the complainants.

8. The Judge then reminded the jury of the similarities on which the prosecution had relied:

   1The similar age of the boys;

   2The absence of a father figure in the boys’ lives;

   3The common acquaintance with KC which the appellant was alleged to have “fostered” to win an opportunity to spend time with them;

   4The practice of taking the boys on outings;

   5The appellant’s exploitation of the opportunities offered by the complainants sleeping over to further his relationship with them;

   6The opportunities of the appellant to see the boys naked, thereby “normalising naked behaviour”, arising out of the nature of those activities;

   7Swimming naked with the boys at the State Swim Centre;

   8Asking SG and MA to swim naked at the beach;

   9The way in which the appellant observed all three boys whilst they showered;

   10The appellant’s practice of fellating MA and MG in the kneeling position while he masturbated himself.

9. The Judge did not expressly identify the coincidence or other rational explanations to which she was referring in the first of the above-cited passages from the summing up.  Nor did the Judge tell the jury how the cross-admissible evidence tended to disprove coincidence or exclude other rational explanations.  The Judge’s directions did not explain to the jury that the probative value of the complainants’ accounts went to the issue of whether they had independently, but coincidentally, fabricated or imagined highly similar accounts.  Indeed, the similarities I have numbered (1)-(4) have no relevance for the purpose of a similarity of account reasoning.  They did not make it less probable that the complainants had independently come to make false complaints against the appellant.  On the contrary, it could be argued that those common features might explain how they independently came to make false complaints of the kind made.  Indeed, those similarities were, by and large, admitted.  There was no issue as to their falsity or accuracy.

10. Similarities (5) to (9) do manifest a similarity of accounts which supports the cross-admissibility of the evidence for the purposes of excluding the hypothesis of independent concoction for the reasons I have already identified.  The way in which the prosecutor and the Judge framed similarities (5) and (6) alludes to the appellant grooming the boys to later satisfy his sexual desire and similarities (7) to (9) show a sexual proclivity of the kind to which I referred to above.  However, the Judge’s directions failed to differentiate at all between these two quite different bases for cross-admissibility.  By and large, the Judge’s directions on the cross-admissible uses of the evidence are based on propensity reasoning from the particular sexual proclivity of the appellant which the jury might be satisfied by the evidence relating to any one of the complainants but, as I earlier observed, that reasoning is not explicitly set out.

11. The Judge did not explicitly instruct the jury on the process of inductive reasoning from a particular proved propensity to guilt which I have set out in [68]-[74].

12. Section 34R of the Evidence Act obliges judges to explain the purpose for which discreditable conduct evidence “may, or may not, be used”. An explanation of the permissible use or uses is as important as an admonishment against impermissible use because without the former the risk that the jury will lapse into the latter use is much increased. In the absence of an explicit explanation of the different reasoning processes involved, references to an underlying unity or a pattern do not provide the instruction required by the statute. Without that instruction, merely recounting a list of similarities is of no assistance. I would hold that the Judge has erred in law in failing to give a direction which satisfies s 34R of the Evidence Act.  It is not possible to apply the proviso to an error of this kind which must have affected the jury’s assessment of the credit of the complainants.

13. My conclusion that the directions on the cross-admissible evidence did not comply with s 34R of the Evidence Act is also sufficient to warrant the remittal of this matter for retrial.  However, it is convenient to make some observations on how the permissible uses of cross-admissible evidence may affect the directions which are given on the issue of collusion. 

14. I set out below the Judge’s directions on collusion between the complainants, numbering the paragraphs to facilitate subsequent reference.

    1.[Counsel for the defendant] suggested to you that it would be most unlikely that the twin brothers [MG] and [SG] would not have talked about the sorts of things that they are alleging that the accused did to them. [Counsel for the defendant] suggested to you that you cannot exclude as a reasonable possibility that there has been some concoction or some contamination between the complainants, such as to influence their evidence.

    2.[Counsel for the defendant] says there is no such pattern or underlying unity and it could be that they have concocted or got their heads together in relation to these allegations.

    3.That brings me to another direction that I must give you about this type of evidence.  If you thought that it could be that one of the complainants’ account has been concocted or made up using the account of another, then you would not be able to use their evidence to consider their evidence together.  If you could not exclude the possibility of [SG] and [MA] having put their heads together to tell a false story then you would not be able to consider their evidence together.  You would have to deal with their evidence quite separately.

    4.Similarly, if there was a reasonable possibility of concoction between the [G] brothers as amongst themselves or between [MG] and [MA], then you would have to deal with the evidence of each quite separately.  If there was any direct or indirect concoction between any of the complainants you could not consider their evidence together.

    5.It is for the Crown to disprove concoction.  The Crown must satisfy you, first, that the complainants have not got their heads together to make up false stories and, secondly, the Crown has to satisfy you that, even if one complainant’s story is true, then another has not made up a false story simply to support the evidence of the first.  Concoction or contamination can occur in either of those two ways and you have to exclude both of them before you can consider the complainants’ evidence together.

    6.In this case, there is no evidence that any of the three complainants have discussed their allegations in such detail with any other person that would enable that other person to have concocted a similar version of events.

    7.You will need to consider whether or not you are satisfied that these three men have not got their heads together and made up a story or, as I said, that one of them or perhaps two of them have not concocted but a third has made similar allegations in a bid to support them.

    8.It is only if you can be satisfied that there is no concoction between any of the complainants that you can use the evidence of one complainant to assist in proof of the other complainant’s accounts.

    9.It is only if that is the case that these charges are cross-admissible and the evidence in respect of them can be used to assist in relation to the other charges on the information.

    10.If you are so satisfied and satisfied of the evidence beyond reasonable doubt then you can use the evidence of one of the complainants to corroborate, support or confirm the veracity of the evidence given by the other complainants as a part of the circumstantial case.  It follows from that, if you were satisfied beyond reasonable doubt of the versions given by two of the complainants you can use that evidence in support of the third complainant’s evidence when you are considering whether or not you are prepared to accept his evidence.

15. I start by observing that, even though paragraph 2 reflects counsel for the defendant’s address, to my mind, contradistinguishing underlying unity and pattern on the one hand and collusion on the other is not helpful.  Collusion does not deny the existence of a pattern or underlying unity in the testimony of complainants.  To the contrary, the “defence” of collusion accepts that there is a pattern and unity in the complainants’ accounts but proffers an explanation of it consistent with the accused’s innocence.

16. Secondly, it is plainly correct to direct the jury, in accordance with paragraph 5, that the prosecution ultimately carries the burden of disproving collusion.  However, the use of similarity of account evidence to disprove independent concoction does not depend on a prior finding one way or another about collusion.  A sufficiently high degree of similarity may persuade the jury that the complainants’ accounts could not have been independently dreamt up or fabricated.  If the jury are so satisfied beyond reasonable doubt, the question of collusion or not, as an explanation of that high degree of similarity, can then be addressed.  On the other hand, a jury may consider the question of collusion first and if left in doubt about that, the jury will almost certainly return a not guilty verdict without staying to consider the force that the cross-admissible evidence might have had to disprove independent collusion if the hypothesis of collusion had been excluded.  Indeed, in most cases in which the evidence of multiple complaints is cross-admissible the jury is likely to move to the question of collusion very quickly precisely because the evidence will only have been admitted because of its strong probative force in excluding the hypothesis of independent concoction.

17. Propensity reasoning operates differently.  The prosecution may rely on propensity reasoning from proved offences against one complainant, particularly if that complainant’s evidence is independently corroborated, to prove a sexual proclivity and then, circumstantially, the offences against another complainant.  If that evidence is accepted the prosecution will also have disproved collusion despite an opportunity which the complainants may have had to discuss their shared experiences.  On that line of reasoning it is not necessary to first disprove collusion.  Paragraph 8 does not elucidate this reasoning for the jury but is, for that reason, unduly favourable to the accused.

18. Thirdly, the directions tell the jury that if they were to accept as a reasonable possibility that the complainants had colluded they must ignore the evidence relating to other complainants.  However, that would not be the only consequence of such a doubt.  The jury should have been directed that if they thought collusion to be a reasonable possibility they might find it difficult to rely on the complainants at all.  If the jury took the view that there might have been some contamination of the accounts of the complainants by an exchange of information failing short of dishonest collusion, a more subtle direction would have been required about the use of the cross-admissible evidence.  However, without having first established a foundation for the proper use of the testimony of the complainants as similarity of account evidence, directions on the effect of collusion are bound to be problematic.

19. Finally, contrary to the direction in paragraph 6, there was evidence of collusion to be found in the denials of the appellant, the support of his evidence by family members, and in the very similarity of accounts on which the prosecution relied.  The Judge no doubt meant that there was no direct evidence that the complainants had got together to fabricate their accounts.  However, the jury may well have taken the direction to mean that the possibility of collusion could be put aside because of the absence of any direct evidence of it.

    Character evidence

20. The appellant gave evidence that he had not been arrested for any serious criminal offence. That evidence did put his character in issue for the purposes of s 18(1)(d) of the Evidence Act, but it was not character evidence strictly so called.  However, he also called evidence from a number of witnesses who testified that he was held in high esteem in the community and was regarded as creditable.  The Judge gave the jury the following direction on that evidence.

    Ladies and gentlemen, evidence has been placed before you as to the previous good character of [the appellant].  There was evidence from the accused himself that he has not been arrested for any other serious criminal offences.  There was evidence from [GE], [MT], [TE] and [TL].  You should take this evidence into account when deliberating on your verdicts.  It is true of course that persons of previous good character do commit crimes; nevertheless, an accused person’s previous good character has an undoubted bearing upon the probability or improbability of his having committed the crimes with which he is charged.

21. The appellant makes two complaints about that direction.  First, it is contended that the Judge erred in omitting any reference to the use of the character evidence to bolster the credibility of the appellant’s testimony.  Secondly, it is argued that the inclusion of the word “probability” in the last sentence suggested that the character evidence was capable of showing that the appellant more probably committed the offences charged when the evidence could only be used in the appellant’s favour.

1. The proper directions to be given when an accused adduces evidence of good character were considered in R v Trimboli.[59]  In that case King CJ laid down the following propositions.

   1.It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.

   2.No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt.  They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged.  The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.

   3.The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character.  This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.

   [59] (1979) 21 SASR 577.

2. I can deal briefly with complaint about the use of the word “probability”.  It is clear enough that the Judge used the compound expression “probability or improbability” as a substitute for the word “likelihood” used by King CJ in the second of the three propositions.  I am confident that the jury would have understood the direction to mean that they may regard the character evidence as a factor making it less likely that the appellant committed the offences.  However, the direction may have been made clearer by telling the jury that they should take the appellant’s character into account in his favour in considering whether they are prepared to find the appellant guilty on the evidence presented.

3. The discretion allowed by King CJ as to the inclusion of a direction on the use of character evidence to support the credibility of an accused’s testimony is supported by the historical underpinning of the common law’s reception of character evidence.  The evidence was admissible before an accused could testify in his own defence and the sole purpose of the evidence at that time was therefore to demonstrate the improbability that the accused committed the offence.[60]  Nonetheless, as White J observed in Trimboli, there is English authority that trial judges should direct juries to take into account character evidence when considering the credibility of an accused who has testified in his own defence.[61]  White J concluded that a direction on both aspects, improbability of offending and credibility, should be given.[62]  Mohr J agreed with both King CJ and White J.[63]

   [60]   R v Rowton (1865) 169 ER 1497.

   [61]   R v Trimboli (1979) 21 SASR 577, 584-586.

   [62]   R v Trimboli (1979) 21 SASR 577, 587.

   [63]   R v Trimboli (1979) 21 SASR 577, 590.

4. More recently in R v Edwards,[64] this Court accepted that a trial Judge should give a direction on both the credibility, and improbability of guilt, uses of character evidence.[65]

   [64]   R v Edwards [2009] SASC 233.

   [65]   R v Edwards [2009] SASC 233, [44]-[47] (Doyle CJ), [121]-[120] (Gray J). See also Melbourne v The Queen (1999) 198 CLR 1, [30] (McHugh J), [199]-[202] (Callinan J).

5. In the circumstances of this case a direction on credibility was important because, to a large extent, the issues fell to be decided on the sworn testimonies of the complainants and the appellant.  If the direction is required as a matter of law then the proviso could not be applied because the error goes to the jury’s assessment of the appellant’s credibility.  However, I doubt that it is an error of law not to give a direction on credibility.  If the failure to give the direction is considered under the miscarriage ground the question is more finely balanced.  I am inclined to the view that it did not cause a miscarriage; that is primarily because of the Judge’s later reference to the submission of the appellant’s counsel that his credit was supported by the evidence of the character witnesses.  Ultimately, it is not necessary to decide whether the failure resulted in a miscarriage because there must be a retrial on other grounds.

   Putting the defence case

6. The Judge summarised for the jury the evidence of the complainants on each particular count.  However, when it came to the defence case the Judge summarised the denials of the appellant only in a general way.  Given that the evidence of the appellant could not be any more specific with respect to the counts because he generally denied any wrongdoing, the approach of the Judge in that respect is understandable.  However, the appellant also contradicted the complainants on matters of surrounding detail and in that evidence he was supported in important respects by the evidence of his son, KC, and his brother, BC.  The Judge did no more than remind the jury that KC and BC had given evidence and told them that the transcript would be made available to them.

7. The responsibility of the Judge is to identify the issues in the case and to apply the law to those issues.[66]  That obligation is an aspect of the Judge’s responsibility as the arbiter of the law.  It recognises that an explication of the law unconnected to the actual issues in the trial will be of little assistance to, and is more likely to distract, the jury in the exercise of their responsibility to decide the facts.  In applying the law to the issues a Judge inevitably will refer to some of the evidence.[67]  The Judge’s obligation to apply the law to the issues is sometimes thought to extend to taking the jury through the evidence which supports, or is opposed to, disputed facts.  That is not so.[68]

   [66]   RPS v The Queen (2000) 199 CLR 620, [37]-[41]; Alford v Magee (1952) 85 CLR 437, 466.

   [67]   R v Perks (1986) 43 SASR 112, 115-116.

   [68]   R v Perks (1986) 43 SASR, 112-116.

8. The Judge must give a fair and balanced presentation of the effect of the prosecution and defence cases.[69]  That is an aspect of identifying the issue which the jury must decide.

   [69]   Cleland v The Queen (1982) 151 CLR 1, 20 (Gibbs CJ). See also R v Allen (2011) 109 SASR 396, [3] (Doyle CJ).

9. It may be necessary in order to explain the effect of the defence case to the jury to identify the evidence on which that case rests and to explicitly state how the defence relies on it.  In R v BD,[70] this Court took the view that the summing up did not put the defence adequately in a case in which the “essence” of the defence, which was that the complainant had fabricated her evidence for her personal benefit, was not put squarely to the jury by reference to the impugned passages of that witness’ testimony.  However, the Judge’s responsibility to put the defence case does not extend to reprising defence counsel’s role in the making of evidentiary arguments.

   [70]   R v BD (1993) 66 A Crim R 192.

10. Nonetheless, there may be occasions when in the circumstances of the particular case it is necessary to give the jury additional assistance with the evidence to avoid a miscarriage of justice.  The cases I have in mind are those in which the jury may be overwhelmed by the amount or complexity of the evidence in the absence of a fuller summation, classification and or cross-referencing of the pertinent material.  Long trials and trials of informations with multiple counts and victims may be other examples.

11. I tend to the view that greater assistance should have been given to the jury about the particular ways in which the evidence of KC contradicted the evidence of the complainants on each of the counts.  I acknowledge that the jury is likely to have appreciated the evidentiary conflicts to which I have referred from the cross-examination of the complainants and from the addresses of counsel for the appellant at trial.  However, this was a complex trial with a multiplicity of counts and factual issues.  The appellant led a positive defence case in the face of a prosecution case which was strong but also carried, simply from the number and breadth of the offences charged, a taint of prejudice.  It was important in these circumstances for the Judge to remind the jury, even if by a headline reference to the factual issues raised, the points of contradiction of the complainants’ evidence by the defence witnesses.

12. The forensic disadvantage arising out of the delayed complaints reinforces the reasons I have just advanced for reminding the jury of the way in which the evidence of KC and BC contradicted the complainants’ accounts. The delay in this matter was substantial and I would accept that it resulted in a significant forensic disadvantage calling for a direction in accordance with s 34CB of the Evidence Act. The Judge did alert the jury to the appellant’s forensic disadvantage in general terms. However, s 34CB of the Evidence Act requires a direction explaining the forensic disadvantage faced by the particular defendant on trial.  The general direction given by the Judge did not draw the jury’s attention to the contradictions, in matters of detail, of the complainants’ testimony, which might have been more effectively pressed but for the lapse of time.

13. I would deal with the appellant’s complaint that the s 34CB direction was inadequate and the complaint that the defence case was not put fully as a single ground alleging that the combined effect of the failures denied the appellant an opportunity of an acquittal which was fairly open to him.

14. The appellant’s defence was more than a bare denial of the conduct alleged against him.  It was also that the complainants’ testimony could not be relied on because, on those matters of detail on which he was able to adduce evidence other than his own sworn denials, despite the delay in the making of the complaints, their accounts were contradicted in material respects.  The summing up did not convey that important element of the defence case to the jury.

15. Whether or not the failure to do so in this case resulted in a miscarriage of justice is finely balanced.  There is little to be gained by coming to a final conclusion on these grounds because there must be a new trial in any event.  Hopefully the observations I have made will provide some assistance to the Judge presiding over the retrial in discharging his or her responsibility to sum up the defence case on the evidence and issues as they are presented at that hearing.

    Conclusion

16. For the above reasons, the orders of the Court were previously made:

    1.     Appeal allowed.

    2.     The convictions on all counts are quashed.

    3.     Remit the matter to the District Court.

17. ANDERSON J:     I agree that the appeal should be allowed for the reasons given by the Chief Justice. I agree with the orders proposed.

18. NICHOLSON J:     On 1 November 2013, I joined in the orders of the Court allowing the appeal and remitting the matter to the District Court for retrial.  I agree in substance with the reasons of the Chief Justice subject to the following qualifications.  I also gratefully adopt his Honour’s analysis of the evidence. 

19. I agree that the single count of indecent assault as alleged by SG (count 1) should have been tried separately from the other counts, all of which concerned either MG or MA.  However, and where I depart from the position taken by Kourakis CJ, is that, in my view, the evidence of the complainants MG and MA is inadmissible in the Crown case concerning SG.  A separate trial concerning count 1 (SG) should take place for this reason as well.

20. As his Honour has pointed out, the question of whether or not separate trials should be conducted in a sexual offence case with multiple complainants is to be determined by reference to the question of cross-admissibility of evidence, as required by s278(2a)(b) of the Criminal Law Consolidation Act 1935. 

    278 – Joinder of Charges  

    (1)Subject to the provisions of this Act, charges for two or more offences should be joined in the same information if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

    (2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence on the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.

    (2a)  Despite sub-section (2) and any rule of law to the contrary, if in accordance with     this Act, two 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 alleged victim.

    (3)…

    (4)…

    The term sexual offence is defined in sub-section (4) for the purpose of sub-section (2a) in terms which capture all of the offences alleged in the information upon which the appellant was tried in this matter. 

21. It can be seen that a discretion in the Judge to order a trial of all of the counts referrable to MG and MA separately from a trial of count 1 being the only count referrable to SG would have arisen “if (and only if)” evidence to be adduced, relating to each of the counts referrable to MG and MA, was not admissible in relation to the single count relating to SG.  Correspondingly, separate trials in this sense could have been ordered “if and only if” evidence to be adduced, relating to count 1 (SG), was not admissible in relation to each of the other counts relating to MG and MA. 

22. The question of the cross-admissibility of the evidence, being that directly relevant to each count together with any evidence relevant to other additional, discreditable conduct not the subject of any charge, falls to be determined in accordance with the requirements of s34P of the Evidence Act 1929. 

    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 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 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).

23. I agree for the reasons given by the Chief Justice that all of the discreditable conduct evidence relevant to the complaints by MG was admissible when considering the complaints by MA and vice versa and that there was no basis for separate trials insofar as MG and MA were concerned.  I also agree in substance with his Honour’s reasons for finding that the evidence concerning count 1 (SG) is not admissible in the trial of other counts concerning either MG or MA.

24. However, when considering whether or not a separate trial concerning SG is warranted, a second fundamental question is whether or not all of the evidence relating to each count referrable to MG and MA was admissible for the single SG count.  For this purpose, I will refer to the evidence directly referrable to the MG and MA counts (concerning both charged and uncharged sexual conduct) as the “MG and MA discreditable conduct evidence”. 

25. The MG and MA discreditable conduct evidence may be admitted in the trial of count 1 with reference to SG if it has a “permissible use” apart from or independent from any “impermissible use”.[71]  In this latter respect, the MG and MA discreditable conduct evidence does have an impermissible use, namely where it might be used “to suggest that the [appellant] is more likely to have committed the offence [being count 1 with reference to SG] because he or she has engaged in [the MG and MA discreditable conduct].”  It is inadmissible for this purpose.[72]  Kourakis CJ in his reasons has given this impermissible use the descriptor “bad person” reasoning.

    [71] Subject to the requirements of sub-section 34P(2).

    [72] Sub-section 34P(1)(a) and (b).

26. However, the Chief Justice has identified, with respect correctly, that the MG and MA discreditable conduct evidence also has two permissible uses apart from its impermissible use.  These two permissible uses are “similarity of account reasoning” as that term has been defined and explained in the judgment of the Chief Justice[73] and a particular or specific propensity basis.  The Chief Justice described this latter permissible use in these terms: the MG and MA discreditable conduct evidence discloses a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires.[74]

    [73]   At [57]-[67].

    [74]   At [68]-[69].

27. Having identified two permissible uses apart from the impermissible use, the MG and MA discreditable conduct evidence would only be admissible in a trial of count 1 (SG), where the requirements of s34P(2) of the Evidence Act are satisfied.  The trial Judge must be satisfied that the probative value of the evidence admitted for a permissible use “substantially outweighs any prejudicial effect it may have on [the appellant]”. 

28. Here, the prejudicial effect of the MG and MA discreditable conduct evidence may, at first blush, be thought to be high perhaps very high.  The potential for a jury to, consciously or subconsciously, use “bad person” propensity reasoning and be overwhelmed by the Crown cases concerning MG and MA (should it accept them) when it turns to consider a single count of indecent assault concerning SG is plain.  In addition, I take the view that the probative value of the MG and MA discreditable conduct evidence insofar as the “similarity of account reasoning” permissible basis is concerned, whilst made out is borderline. 

29. Returning to the test mandated by sub-section 34P(2)(a), it must also be borne in mind that when addressing this issue, regard must be had to whether the permissible use 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.[75]   If consideration were restricted to a comparison of the “similarity of account reasoning” permissible purpose, alone, with the impermissible purpose (use of the MG and MA discreditable conduct evidence to suggest that the appellant is more likely to have committed the offence against SG because he has engaged in other discreditable conduct) I would very much doubt that the probative value of this evidence admitted for such a permissible use would “substantially outweigh” any prejudicial effect it may have on the defendant.[76]  To put it more simply, if that were the comparison, I would be concerned that a jury, should it accept all of the evidence referrable to MG and MA, would almost inevitably convict on count 1 and, as a practical matter, find it very hard, if not impossible, to set aside the impermissible use of the evidence and notwithstanding the giving of appropriate directions by the trial Judge.

    [75] Sub-section 34P(3).

    [76] Sub-section 34P(2)(a).

1. However, when consideration is given to the second permissible use of the MG and MA discreditable conduct evidence, that is, a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purpose of gratifying his paedophilic desires, a different approach by the trial Judge is required and a different calculus will apply. Section 34P(2)(b) provides for an additional gateway that evidence of this nature must pass through. It will be of assistance to set out the whole of s34P(2) again.

   Discreditable conduct evidence may be admitted for use (“the permittable 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.

2. The second permissible use identified by the Chief Justice for the MG and MA discreditable conduct evidence which relies on an asserted proclivity in the appellant comprises a particular propensity or disposition basis for the use of the evidence with respect to which s34P(2)(b) will apply. In the present case, I am satisfied that with respect to this second permissible use, the MG and MA discreditable conduct evidence does have strong probative value, having regard to the issues arising at trial. As such, it does satisfy the additional gateway as required by sub-section 34P(2)(b).

3. It is this strong probative value concerning the proclivity (propensity) permissible use and the less convincing probative value concerning the similarity of account reasoning permissible use which, taken together, must be seen to substantially outweigh any prejudicial effect that the MG and MA discreditable conduct evidence might otherwise have if that evidence is to be admissible.[77] 

   [77] Sub-section 34P(2)(a).

4. As I have observed, there is a risk that the MG and MA discreditable conduct evidence will be highly prejudicial when a jury comes to consider the case against the appellant concerning the single count alleged on behalf of SG. Of course, much of that “prejudice” will come from the “strong probative value” that the evidence carries by way of its permissible use as indicating a proclivity. When applying the calculus required by sub-section 34P(2)(a) this aspect of any “prejudice” is to be ignored. Indeed it is not helpful to characterise this permissible use as “prejudice” at all; it is an aspect of the legitimate persuasive power of the evidence. The material prejudice for this purpose is that embraced by the impermissible purpose of using the evidence to suggest that the appellant is more likely to have committed count 1 because he has engaged in the MG and MA discreditable conduct – bad person propensity reasoning.

5. The probative value side of the balancing exercise has now increased to such an extent as might be seen, when considered in isolation, to “substantially outweigh any prejudicial effect” the evidence may have on the appellant. Nevertheless, sub-section 34P(3) still needs to be complied with in this new context. In this respect, the additional permissible proclivity (propensity) use requires a much more subtle distinction to be drawn when regard is had to the impermissible use than does the permissible “similarity of account reasoning” use. In my view and notwithstanding any directions that might be given by the trial Judge, a jury hearing the facts of this case would struggle to keep the impermissible propensity use sufficiently separate and distinct from the permissible propensity use.[78]  On the facts of this case, this risk is exacerbated by the potential for the MG and MA discreditable conduct evidence, given its much more significant quantity and its much more serious nature, to overwhelm the factual basis of the defence case concerning the single count of indecent assault alleged by SG.

   [78] Section 34P(3).

6. For these reasons, I am not satisfied, after applying s34P(3), that the probative value of the MG and MA discreditable conduct evidence, admitted for its permissible uses, would substantially outweigh any prejudicial effect it might have on the appellant (with respect to the case brought on behalf of SG).[79] And I have reached this conclusion notwithstanding the strong probative value of the evidence when regard is had to its permissible proclivity (propensity) use. In my view, the MG and MA discreditable conduct evidence was not admissible in the Crown case concerning the SG first count. I would strongly favour an exercise of the discretion available pursuant to sub-section 278(2a)(b) of the Criminal Law Consolidation Act to order a separate trial for this reason.

   [79] Section 34P(2)(a).

7. It is difficult to disagree with the logic of the Chief Justice’s approach at [84] of his Honour’s judgment. Nevertheless, I do disagree with his Honour’s application of s34P(3) to the MG and MA discreditable conduct evidence. There comes a point where such highly analytical reasoning, serving to explain why a tribunal of fact (in particular, a jury) might be trusted to approach correctly such a complex question of assessment of evidence, must give way to an evaluative judgment or assessment of the level of risk that the tribunal might not approach it in that essential way. I agree that s34P provides for a test of admissibility involving an evaluative judgment as a matter of law and not a discretion to admit or exclude.[80]  However, I reserve my position on the issue, flagged by the Chief Justice,[81] concerning whether the test for admissibility is to be applied in the same way irrespective of the mode of trial. At the least, the language of s34P(3) leaves open the possibility that the issue of whether permissible uses can be kept sufficiently separate from the impermissible use might be informed by whether the fact finder is to be a judge or a jury.

   [80] Kourakis CJ at [82].

   [81] Kourakis CJ at [82].

8. The position reached by the Chief Justice in this case has the curious result, as his Honour recognises, that in any retrial of count 1 the Crown would be able to adduce evidence from MG and MA and lead the whole of its cases concerning the MG and MA discreditable conduct evidence as uncharged acts.  As his Honour has pointed out, there is nothing wrong with this as a matter of principle.  However, it is difficult to see on the facts of this case, how the prejudice to the accused arising from the antipathy which the multiple MG and MA allegations would engender could be guarded against.  In particular, the potential for such antipathy to “distract the jury from any defects and frailties in the evidence directly bearing on [count 1] and [for the jury] to convict irrespective of the strength of that evidence”[82] would have to be a very significant one.

   [82] Cf; Kourakis CJ at [61].