R v Ellis

[2010] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ELLIS

[2010] SASC 118

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Kourakis)

27 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Appeal against sentence and conviction – appellant convicted of six counts of indecent assault and seven counts of buggery of four complainants which took place between 1961 and 1971 – appellant sentenced to 16 years’ imprisonment with a non-parole period of 12 years’ imprisonment – whether Judge erred in failing to order separate trials with respect to each complainant and in concluding that the evidence of each complainant was cross admissible with the evidence of the other complainants – whether Judge erred in application of legal principles relating to the question of contamination or concoction – whether jury misdirected with respect to ‘similar fact’ evidence – whether non-parole period manifestly excessive – whether Judge erred in failing to give adequate consideration to the age or health of the appellant.

Held:  Judge was correct in concluding that the evidence of each complainant was cross-admissible and correctly applied legal principles relating to the contamination or concoction – no error demonstrated with respect to jury direction on similar-fact evidence – non-parole period not manifestly excessive – evidence did not indicate that imprisonment would have a gravely adverse effect on appellant – appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 278; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
Hoch v The Queen (1988) 165 CLR 292; Markby v The Queen (1978) 140 CLR 108; Phillips v The Queen (2006) 225 CLR 303; De Jesus v The Queen (1986) 22 A Crim R 375; Pfennig v The Queen (1995) 182 CLR 461; R v Dawson-Ryan (2009) 104 SASR 571; Sutton v R (1984) 152 CLR 528; HML v The Queen (2008) 235 CLR 334; R v Hunter (1984) 36 SASR 101, applied.
BRS v The Queen (1997) 191 CLR 275, discussed.
R v F (2002) 129 A Crim R 126; R v Colby [1999] NSWCCA 261; R v Bednikov (1997) 95 A Crim R 200; Gulyas v Western Australia (2007) 178 A Crim R 539; R v Vachalec [1981] 1 NSWLR 351; R v Smith (1987) 44 SASR 587; R v Creed (1985) 37 SASR 566; R v Liddy (No 2) (2002) 84 SASR 231; Smith v The Queen (Unreported, Western Australia Court of Criminal Appeal, Malcolm CJ, Pidgeon and Anderson JJ, 2 June 1994); Austin v The Queen (1996) 87 A Crim R 570; R v Holyoak (1995) 82 A Crim R 502; Makin v Attorney-General for New South Wales [1894] AC 57; Reg v Boardman [1975] AC 421; Perry v The Queen (1982) 150 CLR 580; Harriman v The Queen (1989) 167 CLR 590; Director of Public Prosecutions v P [1991] 2 AC 447, considered.

R v ELLIS
[2010] SASC 118

Court of Criminal Appeal:       Duggan, Sulan and Kourakis JJ

1. DUGGAN J:         In my view the appeals against conviction and sentence should be dismissed.  I agree with the reasons prepared by Sulan J.

2. SULAN J:             The appellant was convicted of six counts of indecent assault and seven counts of buggery of four complainants, GR, TA, DF and RW.  The offences took place between 1961 and 1971.  The appellant was sentenced to 16 years’ imprisonment with a non-parole period of 12 years’ imprisonment.

3. The appellant appeals both the conviction and the sentence.  The appeal against conviction raises the issue of the Judge’s decision to refuse to order separate trials in respect of each complainant.  The trial Judge concluded that the evidence of each complainant was cross-admissible with the evidence of the other complainants.  The appeal raises the issue of cross-admissibility.  The appellant also complains that the trial Judge applied the wrong test when considering the question of contamination or concoction.  The appellant further contends that, having admitted the ‘similar fact’ evidence, the Judge misdirected the jury.

4. As to the sentence, the appellant complains that the non-parole period is manifestly excessive and that the Judge failed to give adequate consideration to the age of the appellant.

5. The four complainants were, at various times, over a period of 11 years between 1960 and 1971, occupants of the Eden Park Boys’ Home (“Eden Park”), which was run by the Salvation Army for boys who were homeless.  The facility was located in the Adelaide Hills.  On the property was a main house.  There were other buildings used to house the boys. The home was partially self‑sufficient.  There were various farming activities carried on at the property. 

6. The staff consisted of members of the Salvation Army, and others who were employed.  The appellant was not a member of the Salvation Army, although he was referred to as “sergeant”.  The appellant lived on the property in the main house.  He later moved to a new dormitory separate from the main house.  The appellant was one of the adult supervisors.

7. The age of boys who lived at Eden Park ranged from about five years to 17 years.    Each complainant resided at the home at various times.  GR, who is now 56, was an occupant of Eden Park from the age of eight.  GR’s mother had left home when he was 18 months of age, leaving GR to be looked after by his father.  The domestic arrangements were difficult, resulting in GR being taken to Eden Park by his father.  He was told that it was for two or three weeks.  As it transpired, he remained there for a number of years. 

8. On arrival, he met the appellant.  After he had been at Eden Park for about two years, he was sexually assaulted by a number of older boys.  The sexual assaults started when one of the boys required GR to masturbate him.  It continued with a boy touching GR’s penis.  It eventually led to a boy having anal intercourse with GR. GR said that he was very frightened by what had occurred.  He spoke to the appellant, who helped him change his clothes and have a shower.  The appellant told GR to tell him if it occurred again. 

9. There was a further incident when one of the boys anally raped GR, who then reported the incident to the appellant.  The appellant took GR to the staff room, locked the door and asked GR to take his pants down to show him his anus.  The appellant touched GR’s penis and testicles and played with GR’s penis.  GR told the appellant that it was his bottom which was hurting.  Eventually, the appellant told GR to leave the room.  He told GR that he would look into what had happened.  GR gave evidence that, at the time, he had no choice but to complain to the appellant because there was no-one else to whom he could complain.  GR described how the appellant would punish boys by belting them with a strap.  He described how the appellant would lose his temper and hit various boys.  GR was frightened of the appellant.  GR described in graphic detail how he had been flogged by the appellant on one occasion to the point that he could not move. He remained in bed for some days. 

10. After that incident, when he resumed school activities, the soccer coach asked him why he would not remove his shirt.  He told the coach it was because of the marks and soreness from having been flogged.  When he returned to Eden Park, he was flogged again and locked into a lock up in solitary confinement for three days for having spoken to the coach.  These experiences caused him not to speak up about what was occurring at Eden Park. 

11. GR described how the initial incident of the appellant placing his hands down GR’s shorts and placing his penis against GR’s bottom eventually led to further acts.  GR gave the following evidence:

    Q. What do you mean by 'pumping'.

    A. Well, pumping his penis against my bottom through the clothing. And it eventually led to him taking my pants down and he performed oral sex on me and I had to either lick his penis or perform oral sex on him; then it led to really he would stand behind me with my clothes off, my pants off and his pants pulled down and he would rub his penis over my bum until he ejaculated and then eventually it led to an anal rape in the staffroom.

12. GR described how, when he was about 11 years of age, he was working in the kitchen one afternoon when the appellant asked him to come to the staff room.  The appellant locked the door.  GR described how the appellant stood behind him, placed his hands down the front of his shorts, and eventually removed his shorts and performed oral sex.  The appellant then pushed GR over a table and GR felt the appellant’s penis on his bottom.  He then felt some form of lubricant being applied and the appellant anally raped him. 

13. Counts 3, 4 and 5 relate to a time when GR was at the appellant’s mother’s house in Adelaide.  He had been to Adelaide to watch the Christmas Pageant.  GR was sleeping on a mattress in the sleepout with another boy.  He described how, during the night, the appellant came and took him away to the appellant’s room.  The appellant told GR that he was privileged to be taken to the pageant.  GR described how he was sitting on the bed with the appellant.  He gave the following evidence:

    He started to play with my penis and then eventually he stood up, took his pants down - his underpants - and put my hands across onto his penis and made me rub his penis. This went on for possibly two or three minutes until he got really excited, he grabbed my arm, shuffled over to me, picked me up, turned me around, pushed me down onto the bed face first. He then rubbed his penis over my bottom for maybe a minute or so and then positioned me to where it was comfortable to him, put his penis in my anus and raped me.

14. GR described how the appellant forced his penis into GR’s mouth.  He described how the appellant was angry because GR would not cooperate.  That was the last occasion upon which GR was taken to the appellant’s mother’s home in Adelaide.

15. TA was born on 24 June 1955.  His father died when he was about five and a half years of age.  TA was traumatised by the loss of his father and, because of certain behavioural difficulties, his mother took him to see Dr Le Page, a psychologist, at the Child Guidance Clinic at the Adelaide Children’s Hospital.  Dr Le Page referred TA to Eden Park.  At the time, TA was about 7 years of age.  TA described how he was taken to Eden Park late at night, without having been warned what was to happen.  He was met by Captain Huxley, who took him to a bed in a dormitory with a number of other boys.  He described the conditions at the home.  He said that whilst he was there he saw other children take real hidings, mainly from the appellant.  He said there were a variety of punishments which he witnessed.

16. TA described meeting the appellant on the first morning after his arrival at the home.  The appellant’s role was to take care of the younger children and to organise them.  TA described the appellant’s primary role as one of punishing children.  TA described how, after he had been at the home for about one month, he tried to run away.  He was returned to the home after he had been observed near Mount Gambier.  He was punished by the appellant, who hit him with a strap. He was then left in a small room overnight.  He was let out the next day.  He described how he was outside on the following day when the appellant approached him.  The appellant hit him with a piece of wood.  He described it as the worst hiding he had ever received in his life.  He was asked:

    Q. Explain what he did with the piece of wood.

    A. He hit me around the bottom and the legs, at least 15, maybe 20 times. I think during the hiding I must have pooed my pants. At the end of the hiding - I think the piece of wood broke because it was splintered. He pulled my pants down after the hiding and raped me with the piece of wood.

    Q. I know it might seem obvious to you, but what do you mean when you say he raped you with a piece of wood.

    A. He pushed the piece of wood up my behind.

    Q. How far did the piece of wood go in.

    A. I felt him twist it and start feeling it higher.

    Q. How did that feel.

    A. It was very painful. The hiding to start with was excruciating. It didn't matter how much you screamed, it didn't stop him from hitting you again and again and again and again. And he used to hit with real force, ferocious, ferocious force, he used to hit with ferocity.

17. TA was ordered to go to an area and sit on a concrete block.  He said he was very scared.  He said he was unable to sit down properly.  He said he did not complain because he was terrified of the appellant. 

18. TA gave evidence that, some months later, he was outside involved in a clean up and burn off in the back area of the home when he was approached by the appellant who pushed his head into the dirt whilst he was on his knees, pulled his pants down and anally raped him.   He said that when he was being anally raped, the appellant said, “I’ve got you you little bastard”. 

19. DF was born on 1 May 1953.  He was placed at Eden Park when he was between five and seven years of age.  He remained there for ten years.  He was admitted to the home because his mother wanted to protect him from his abusive father. 

20. DF gave evidence that he was first taken to Eden Park in the late 1950s.  He described the layout of the buildings, including an area which he called “the punishment area”.  He gave evidence about various members of staff.  He recalled the appellant, whom he said was referred to as Sergeant Ellis.  He said that Sergeant Ellis was involved in discipline.   On occasions, he would discipline DF by hitting him with either a strap or a cane.  He said he would be punished by the appellant once or twice a week.  He was punished for various misdemeanours, including singing, fighting, and stealing. He said that the appellant would become angry, his eyes would bulge and his face would be red.  He said he was also ordered to stay in the lockup from time to time.  He described an occasion when he was to be punished by the appellant.  He was taken to a room which had in it a bed and a table.  He described what happened:

    He told me to drop my pants, he was going to give me a hiding, give me the strap actually. The next thing you know he was penetrating me. I didn't know what was going on, again and he sexually assaulted me. My pants dropped to the floor very easily because they were very loose pants then and he wore braces and thinking back, he never actually dropped his pants because his braces kept his pants up, so after the sexual assault it was very, very quick, told me to go - firstly he locked me in the room so nobody could come in and then told me to drop my pants, he was going to punish me. I did that. I started to cry before anything happened and then it was very, very quick, he was wheezing like he was out of breath and he opened the door, I pulled my pants up, he opened the door, looked out the door and I just went downstairs and I just went and cried somewhere, mainly at the end of the building where the old dormitories used to be, sorry, the dining room dormitory I always used to go down and hide at the end of the building after I was assaulted or raped.

21. DF gave evidence that he was too frightened to tell anyone what had happened.  DF described another occasion when he and a number of boys were smoking when the appellant observed them.  DF told the appellant that he had found some cigarettes.  The appellant said that he did not believe DF and that DF had to be punished.  He was taken to a dormitory block.  He described what occurred:

    The block where Keith Ellis took me, in the new block, in the new dormitory. Just unlocked his door and first I sat on his bed and he sat in his seat and he had his pants open. On the right-hand side he locked the door. He told me he had to punish me and he put the strap on the bed and I knew that then I wasn't going to be punished in that kind of way and he said 'Bend over' more or less. I bent over first then he put the strap on the bed, because I was thinking I was getting actually the strap. He told me to pull my pants down, which I did and then he penetrated me again and he stuck his penis in my anus and again he was very, very quick. He looked out in the hallway to see if anyone was coming, didn't really speak because I was crying and I went straight across and laid on my bed. There was nobody in the dormitories, so I think he knew if I'd gone and laid down no-one would see what he'd done anyway. So I just end crying on the bed for the rest of the afternoon.

22. RW was born on 27 December 1956.  He and his siblings were placed in children’s homes after their parents’ marriage failed.  He was first at Smith Street Boy’s Home.  He then returned to his family.  His father had remarried.  He did not get on with his stepmother, who eventually arranged for him to be taken to Eden Park.  He said he was unhappy about having to leave his family, but was resigned to the fact that this was how it was going to be. 

23. RW gave evidence that, on the first night, he witnessed punishment being meted out to some of the children in a way he had not witnessed in the previous home.  He said that physical violence, by way of beating the children, was a common occurrence.  He said that, when he arrived at the home, he was of high school age.  He attended Mount Barker High School.  He described the various staff who worked at the home.  The person in charge was a Captain Kopp.  His wife was also involved in running the home.  She was one who often punished the children.

24. Amongst the staff was the appellant.  He was addressed as “Sergeant Ellis”.  He said that punishments were given by Captain Kopp and other staff members.  RW described how, the day after he had arrived, he met the appellant.  At first, he thought the appellant was a nice person.  However, that changed.  He said, not long after he had arrived, he witnessed the appellant beating a child.  He described the appellant as being “out of control”.  His face was very red and puffed and he was hitting out continuously and dragging the person around. 

25. He described how there was an occasion upon which he had to have his shoes replaced.  He went to see the appellant.  He was taken by the appellant to a shoe shed and, whilst he was sitting there, the appellant put his arm around him and started to rub his chest.  He said he repelled the appellant, and the appellant’s whole demeanour changed.  He became very aggressive.  He then placed his hands on RW’s groin area.  RW described the appellant as “groping” him.  When he objected, the appellant became more aggressive.  RW said he knew what was happening because it had happened to him at the orphanage at the Church of England Boy’s Home.  He said that the appellant grabbed him by his genitals. 

26. The next occasion was within weeks of the first occasion.  RW was in the barn area when the appellant came in.  The appellant closed the door.  He was very friendly.  He then commenced to touch RW, who asked him not to do it.  He then grabbed RW’s hand and forced him to masturbate the appellant.  He then told RW to suck his penis.  The appellant ejaculated near RW’s face. 

27. The next occasion was not long after.  RW was again in the loft area when the appellant came in.  The appellant moved behind RW and held him.  He then removed RW’s shorts and the appellant was masturbating him.  He could feel the appellant rubbing himself against RW’s buttocks.  The appellant then attempted to penetrate RW, who pulled away.  He felt moist in his buttock region.   RW described the appellant as penetrating him.  He said it was very painful.  The appellant did not seem to care.  He said that later he found blood and semen in his underpants.  He said he was too frightened to tell anyone.

1. RW said that there were other occasions, but he was unable to give any detail about those various incidents.  RW left the home when he was about 14 years of age.

   The trial and voir dire

2. The appellant was charged with all counts on one information. Section 278 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) permits the joinder of charges if they form or are part of a series of offences of the same or similar character. Pursuant to s 278(2) of the Act, the appellant applied for an order for separate trials of counts relating to each complainant.

3. The appellant contended that the proposed evidence with respect to each count was not cross-admissible with respect to other counts.  A further ground of the application was that there had been contact between GR and DF prior to the appellant being charged, giving rise to the possibility of collaboration and/or concoction between them, thereby creating an undue risk that the evidence lacked the necessary probative force to warrant its admission.

4. Statements provided to the defence prior to the trial disclosed that GR and DF had contact with each other between the time they were at Eden Park and the date of the trial.  In 1969 or 1970 they were friendly with each other for a period of approximately six months and the general topic of sexual abuse had been raised.  DF telephoned GR on 29 April 2005 and there were further telephone conversations between the two on 6 May 2005 and 9 May 2005, a telephone conversation in November 2006 and another telephone conversation eight or 10 days before trial.

5. The defence applied for a voir dire hearing in order to cross-examine the two witnesses and the prosecution agreed that this would be appropriate.

6. In Hoch v The Queen,[1] Mason CJ, Wilson and Gaudron JJ stated that the determination of whether the evidence was reasonably explicable on the basis of concoction was not a matter that necessarily involved a voir dire hearing.  However, in the same passage their Honours said:[2]

   Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.

   [1] (1988) 165 CLR 292.

   [2] Ibid, 297.

7. In my view, it was appropriate for the trial Judge to conduct a voir dire examination in the circumstances of the present case.  The statements disclosed that the two witnesses were friendly with each other for a time in 1969 or 1970 and that there had been telephone contact between the two in April and May 2005, November 2006 and eight or 10 days before the trial commenced.  They had given statements to their respective solicitors at various times in connection with civil actions against the appellant and in order to assess whether there was a real danger of collusion it was important to consider the nature and extent of their contact, including the telephone conversations between them, and the chronology of when those conversations took place in relation to the occasions when they gave statements to their solicitors.  The declarations of the witnesses were of assistance in this respect, but I think it was appropriate for the trial Judge to allow cross-examination of the witnesses on the voir dire in order to provide a sufficient factual background to decide the issue of cross-admissibility.

8. The trial Judge heard oral evidence from GR and DF concerning the issue of possible contamination or concoction.  He determined that the evidence was cross-admissible.  He concluded that there was no reasonable possibility of contamination.  He refused the application and indicated that he would give more expanded reasons after the trial had concluded.  The Judge gave his ruling on 11 November 2008.  The matter was then adjourned for trial, which commenced on 5 March 2009.

9. In his more detailed reasons, the trial Judge concluded that there was sufficient similarity in the evidence given by each complainant to satisfy the test in Hoch.  He concluded that the probative value of the evidence of each of the complainants in relation to other complainants was in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless those happenings occurred.  The trial Judge acknowledged that if there was a possibility of concoction between the complainants, that possibility would render such evidence inadmissible.  He concluded that the aspects of similarity were:

   1.The accused was in a position of authority at the Eden Park Boys’ Home and he gained the introduction to and control over each of the complainants as a result of his position there.  That was consistent with all four complainants.

   2.Each of the complainants was in a particularly vulnerable position, given the isolation from their families.

   3.In relation to each of the complainants, on their versions he would use methods of punishment and fear to gain control over them.  He was violent to them.  That was a common thread.

   4.He would use his position to create opportunities of isolation with them in order to be alone.

   5.He would engage in sexual activities with each of the complainants and each of the complainants was frightened, and because of his violent nature, they did not complain.

   The appeal

10. Counsel for the appellant contends, first, that the trial Judge erred in admitting the evidence of each complainant, because the evidence did not possess the requisite qualities to be admitted as similar fact evidence.  Secondly, counsel contends that the trial Judge wrongly applied the test of admissibility concerning the possibility of contamination or concoction.  Counsel further contends that separate trials should have been ordered, as the evidence of each complainant was not cross-admissible in respect of other complainants. 

11. As to the direction given by the trial Judge to the jury, the appellant complains that the trial Judge wrongly directed the jury concerning the requirements associated with the use of similar fact evidence. 

    The relevant principles

    Cross-admissibility

12. The relevant principles relating to the admissibility of similar fact evidence were stated by Gibbs ACJ, with whom Stephen, Jacobs and Aickin JJ concurred, in Markby v The Queen:[3]

    … The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition.

    [3] (1978) 140 CLR 108, 116.

13. Since Markby, courts have variously referred to the principle as requiring the evidence to have probative force which clearly transcends its prejudicial value, or that its probative value is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused.  Gleeson CJ, Gummow, Kirby, Hayne and Haydon JJ stated the principle in Phillips v The Queen:[4]

    … The “admission of similar fact evidence … is exceptional and requires a strong degree of probative force”.  It must have “a really material bearing on the issues to be decided”.  It is only admissible where its probative force “clearly transcends its merely prejudicial effect”.  “[I]ts probative value must be sufficiently high;  it is not enough that the evidence merely has some probative value of the requisite kind”.  The criterion of admissibility for similar fact evidence is “the strength of its probative force”.  It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence.  The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”.  Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”.  As explained in Pfennig v The Queen:

    “[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”  (footnotes omitted)

    [4] (2006) 225 CLR 303, 320-1.

14. In cases in which allegations of a sexual nature in respect of more than one complainant are made, and in which an information charges those offences in cases of more than one complainant, then the general rule is that, unless the evidence is cross-admissible, an order for severance will usually be made.[5]

    [5]    De Jesus v The Queen (1986) 22 A Crim R 375.

15. In Phillips, v the Queen,[6] the High Court reaffirmed what it said in Pfennig v The Queen,[7] that similar fact evidence is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused. 

    [6] (2006) 225 CLR 303, 308.

    [7] (1995) 182 CLR 461.

16. In considering whether the evidence is admissible, it is necessary to identify the purpose for which the evidence is sought to be led.  In the present case, the purpose for leading the evidence was as described by the trial Judge, that the value of the evidence lay in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless those happenings occurred. 

17. The probative value of the evidence must be considered against the purpose for which it is sought to be led.  Examples of instances in which evidence has been held to be cross-admissible are where other facts are so strikingly similar in relation to each offence with which an accused is charged that the evidence establishes identity or intention, or disproves a mistake or innocent association.  The strength of the evidence may lie in establishing a system or pattern of offending, such as to make it objectively improbable that the offending, as alleged by the prosecution, did not occur. 

18. In Hoch, Mason CJ, Wilson and Gaudron JJ expressed the position as follows:[8]

    … That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

    [8]    Hoch v The Queen (1988) 165 CLR 292, 294-5.

19. In R v Dawson-Ryan,[9] the Court (Gray, Layton and David JJ) ordered that when determining cross-admissibility of the evidence of different complainants, the Court can have regard to the collective aspects of the evidence and is not required to consider each individual aspect in isolation.  The Court said:[10]

    This approach of looking at the items on an individual, stand-alone basis, as counsel sought to do, is not what is required by the test in Hoch and Pfennig. The striking similarity may come, not simply from looking at individual aspects, but looking at those aspects collectively which together suggest a similarity such as would warrant the evidence being cross-admissible.

    [9] (2009) 104 SASR 571.

    [10] Ibid, 585.

20. Dawson J was of a similar view in Sutton v R when he observed:[11]

    … It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately.

    [11] (1984) 152 CLR 528, 567-68.

21. Mr Tokley, who appeared for the appellant, contends that the evidence did not have the quality that is required for it to be admitted as similar fact evidence.  Mr Tokley submits that there was an atmosphere of violence and fear created at Eden Park, but acts of violence were not factually connected with the sexual activity.  He submits that there must be a specific connection between what is said to be the similar fact evidence and the offence in question.  Mr Tokley also submits that the sexual activity in each case did not exhibit the similarities that are required for the evidence to be admissible.  Mr Tokely submits that there is insufficient similarity in the evidence of each complainant to satisfy the test that the evidence must have sufficient probative value to overcome the highly prejudicial effect such evidence has.  I reject this submission.

22. Counsel for the Crown submits that, as a matter of commonsense and experience, the objective improbability of the various events having occurred is lessened by considering the evidence in respect of each complainant.  There is a combination of events which give rise to an underlying unity of the evidence, connecting each allegation forming the basis of each count which connected those counts.

23. The relevance of the similar fact evidence, and the purpose for which it was led, was to demonstrate that it is inherently unlikely that four individuals who were occupants of Eden Park at different times over a period of approximately 11 years would describe conduct which had similar characteristics. The evidence was relevant to any claim that the conduct did not occur or, in other words, that the association between the appellant and each complainant was innocent.  The evidence was relevant to the probability or improbability of the event or events occurring.

24. The atmosphere created at Eden Park by the conduct of the appellant, it is said, explains how he was then able to commit the offences with impunity.  The appellant held a position of authority at Eden Park.  He was one of those employed at the home to supervise and discipline boys who had been sent to the home.  Each of the complainants gave a common description of his role.  Each complainant spoke of the appellant being extremely authoritative. They each described how he would exercise his authority by extreme forms of physical punishment, which included requiring the complainants to remove their shorts and underwear.  Other forms of punishment included solitary confinement.  He instilled in each complainant a fear and apprehension of what might occur if they caused the appellant to lose his temper.  As a consequence, each complainant was in fear of the appellant.  The complainants were vulnerable and the appellant used his position of authority to impose himself upon them.  In each case, the complainant spoke of how the appellant ensured their isolation from the other boys when committing acts of indecency.  Each appellant was anally raped.  In the case of some complainants, the appellant would rub himself against their bottom. He used a lubricant to assist him in anal penetration.  The appellant’s conduct included fondling the penis of two of the complainants, including masturbation and fellatio.

25. In Phillips v The Queen, it was held that, when determining the admissibility of similar fact evidence, the evidence is to be viewed in the context of the prosecution case.[12]  Furthermore, the test of admissibility is to be applied on the basis of the assumptions summarised by Hayne J in HML v The Queen, as follows:[13] 

    … it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.

    [12] (2006) 225 CLR 303, 323.

    [13] (2008) 235 CLR 334, 385.

26. I have considered the similar fact evidence in the present case in accordance with these directives.  I consider that the common features of the evidence of the complainants are such that, unless they conspired to concoct their accounts, there is no reasonable explanation for their versions “other than as supporting an inference that the appellant was guilty of the offences charged.”[14]

    [14]   Pfennig v The Queen (1985) 182 CLR 461, 481.

    Concoction

27. The next question is whether the trial Judge applied the correct principles in ruling on the cross-admissibility issue which had consequences for the application for severance.  The trial Judge referred to Hoch and stated that “if there was a possibility of concoction between the complainants, the possibility would render such evidence inadmissible”.

28. Counsel for the appellant complains that the trial Judge applied the wrong test when considering whether it is a reasonable possibility that the evidence of the complainants may have been concocted or infected in some way by one another.  Counsel at trial submitted that there had been contact between GR and DF prior to the trial, which contact gave rise to the possibility of collaboration and concoction between the complainants and that, therefore, the evidence of one was inadmissible in respect of the other.

29. The basis of the appellant’s objection to the admissibility of the evidence at the trial was the risk of concoction or contamination of the evidence of GR and DF.  Counsel did not dispute that there were significant similarities in the accounts of the two complainants.

30. Counsel at trial sought a voir dire hearing.  There was evidence in the statements of GR and DF that there had been some contact between them.  The trial Judge observed in his reasons that the central argument advanced by the defence arose out of a possibility of concoction in relation to GR and DF.  It was open to the Judge to conduct an inquiry to consider whether there was a real risk of concoction.

31. In Hoch, Mason CJ, Wilson and Gaudron JJ stated that, when assessing the statements and evidence for the purpose of ruling on this issue, the trial Judge’s function is not to make a preliminary finding whether there was or was not concoction.  In R v Dawson-Ryan,[15] Gray, Layton and David JJ interpreted this comment in the following passage:[16]

    The Court in Hoch was stating the principle that a judge on a voir dire should not make findings of credibility for the purpose of determining the truthfulness of the complainant’s account of the alleged act constituting the offence.  Rather, the purpose of receiving evidence from a complainant, or any other witness, on the voir dire is to determine whether there was such a possibility of concoction that it would render the similar fact evidence capable of a reasonable explanation other than guilt.  When receiving a complainant’s evidence viva voce for this permissible purpose, an assessment by a judge inevitably involves findings as to credibility.

    [15] (2009) 104 SASR 571.

    [16] Ibid, 579.

32. The trial Judge heard evidence on the voir dire from each complainant.  GR gave evidence that he knew DF as a person who had been resident at Eden Park.  GR made a statement to his solicitors in 1991 in regard to a civil claim about his treatment by the appellant.  In 2005, DF contacted GR and there was a general discussion about abuse that DF had suffered whilst at Eden Park.  No specific details were discussed.  GR gave evidence that he had been advised by his solicitor not to discuss details of the abuse, and he had followed the advice.  DF confirmed his contact with GR, but said GR did not provide any details to him. 

33. The trial Judge observed that, as the matter was argued at trial, there was no dispute about the nature of the similar fact evidence.  Rather, what was argued was that there was a possibility of concoction in relation to the evidence of two complainants, GR and DF.  The trial Judge summarised the evidence of GR and DF given on the voir dire.  There is no dispute that, prior to trial, GR and DF had been contacted by the Salvation Army authorities, and DF had contacted GR.  The trial Judge concluded:[17]

    After hearing evidence on the voir dire, I found that both [GR] and [DF] were witnesses of truth.  I accepted that [DF] wanted to contact [GR] after receiving correspondence from the Salvation Army about allegations concerning his time at the Eden Park Boys’ Home.  I accepted the reason he gave for wanting to contact [GR], namely, that he was scared and wanted to seek some support. In my view, the uncontradicted evidence was clear that the common thread between the evidence of the two men was that [DF] was trying to engage [GR] about their experiences at the home, but [GR] continually did not want to talk about it because of advice from his solicitors.  It is to be noted that these conversations took place after [GR] had given a statement to his solicitors about the matter to his solicitors.

    In the statements of both complainants, which eventually translated to their evidence at the trial, the similarities in their stories clearly could not be explained away by contamination or concoction.  There was no evidence at all to support that.  The comments about the matter which may have been the basis of the charges was so fleeting that on the material presented to me, there was no possibility of concoction to render the evidence of both inadmissible.

    I was therefore of the view that the evidence of either was cross-admissible on the basis that it is improbable that each of these complainants could give accounts of happenings which have a degree of similarity unless those happenings actually occurred, and I excluded the possibility of contamination or collusion between them.

    [17]   AB 184-85.

1. Counsel for the appellant relied upon the decision in Hoch.  In particular, he relied on the following passage from the judgment of Mason CJ, Wilson and Gaudron JJ:[18]

   Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction.  That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience.  It is not a matter that necessarily involves an examination on a voir dire.  If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relation with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible.  On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible.  Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.  It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.

   [18]   Hoch v The Queen (1988) 165 CLR 292, 297.

2. Brennan and Dawson JJ expressed the position as being that the trial Judge is under a duty to exclude similar fact evidence unless he is satisfied that there is no real chance that it is a product of a cause common to the witnesses.  They said:[19]

   … That is not to say that a trial judge should lightly conclude that there is a “real chance” of conspiracy among complainants in sexual cases, whether children or adults.  Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion.  But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations.  When such circumstances appear, the judge must inquire …

   [19]   Hoch v The Queen (1988) 165 CLR 292, 304.

3. Counsel submits that the trial Judge was in error in deciding that there was no evidence to support an explanation that the common features of the complainants’ evidence could be explained by concoction or contamination.  The appellant submits that the question which the trial Judge should have asked is whether, in the circumstances, the similar fact evidence lacks the necessary probative value to be admissible, given that a reasonable explanation for it is that there was concoction or contamination of that evidence.  Counsel submits that the question for the trial Judge was whether, on the evidence, there was a possibility of collaboration, concoction or contamination.  If such a possibility existed, then the evidence should have been excluded. 

4. In the present case, the trial Judge said that he “excluded the possibility of contamination” after finding that “their stories could not be explained away by contamination or concoction”.  His Honour was clearly referring to the issue identified in Hoch, namely, whether the evidence “is capable of reasonable explanation on the basis of concoction”.[20]  His Honour’s remarks can be compared with the observation by Gaudron J in BRS v The Queen:[21]

   It is axiomatic that, in cases such as the present, where evidence of conduct on other occasions is tendered in proof of the objective improbability of concoction, that evidence is not admissible unless the possibility of concoction has been excluded.  That possibility must be explored before the evidence is admitted – by means of a voir dire, if necessary.  (Footnote omitted)

   [20]   See also R v F (2002) 129 A Crim R 126, 144 per Wood CJ at CL [48], Meagher JA and Bell J agreeing; R v Colby [1999] NSWCCA 261, [108] – [111] per Mason P, Grove and Dunford JJ agreeing.

   [21] (1997) 191 CLR 275, 300.

5. Later in her judgment, Gaudron J said:[22]

   In the circumstances of this case, if W’s evidence could otherwise be led as direct proof of the  appellant’s guilt of the offences charged, it would be admissible only if there was no possibility of joint concoction and no possibility that H became aware of the events to which W deposed before complaining of the events giving rise to the offences charged.  And those issues may well depend on evidence other than that in the trial.  In this regard, it is sufficient to note that matters may have been elicited on a voir dire examination that defence counsel did not wish to open up before the jury.

   [22] Ibid, 301.

6. The material before the trial Judge did not support the contention that there was a reasonable possibility of concoction.  The fact that GR and DF had spoken, or the complainants may have been at Eden Park at the same time is not sufficient to conclude that there was a reasonable possibility or a real risk of concoction.  The trial Judge in his initial reasons concluded that “there is no reasonable possibility of contamination”.  In his further reasons, delivered after the appellant had been convicted, he repeated that, having heard the evidence on the voir dire, he excluded the possibility of contamination or collusion between GR and DF.  In excluding that possibility, he found that the evidence had sufficient probative value so as not to exclude it.  As I previously indicated, the evidence was cross-admissible subject to the issue of concoction.

7. The material before the trial Judge did not support the contention that there was a risk of concoction.  In my view, the evidence was admissible.

   The trial Judge’s direction to the jury

8. Counsel for the appellant complains about the following passage in the summing up:[23]

   When asked to consider each count separately you will be asked to bring in separate verdicts.  However, I give you this further direction.  When you come to consider a count in relation to a particular complainant, you may consider the evidence of the other complainants in a specific and limited way and I give you this direction.  If you think there are sufficient similarities between the accounts given by the complainants on each of these counts, you can quite properly ask yourself this question when considering the evidence on a particular count:  is it improbable that the other complainants give accounts of happenings which have a degree of similarity without those happenings having occurred?  In other words, you can ask yourselves the question when considering a particular count in relation to a particular complainant:  would the other complainants all give similar accounts if these things did not happen?  However, you must understand that you have to assess whether some or all of the other accounts by the other complainants are sufficiently similar to make it improbable that they would give those accounts unless those events actually occurred.  I will go into the question of similarity in a moment.  You will also have to assess whether there is a possibility that the similarities in the versions, if they do exist, occurred due to collusion between the complainants, in other words, were the complaints communicating with each other, before you can use the evidence of other complainants.  When considering a particular count in the way that I have just described, the prosecution must satisfy you beyond reasonable doubt there was no such collusion between the complainants because, of course, ladies and gentlemen, if there is a possibility that there was such collusion, the force or what we call the probative force, of any similarities would go if these witnesses had the opportunity to collude or get their heads together.  The improbability will be explained away.  You will remember ladies and gentlemen the evidence or suggestion of collusion that came out in cross-examination, in particular between the complainants MF and DR.  I will go into that when I discuss the evidence.

   [23]   AB 197-98.

9. Counsel contends that the trial Judge failed to assist the jury as to what is meant by the “requisite degree of similarity”.  In my view, the complaint overlooks the further direction given by the trial Judge in which he directed the jury:[24]

   However, you must not deal with the fact that there are four complainants in the following way:  you must not reason that because there are four complainants that that of itself, the mere weight of numbers has some form of probative force.  You also must not reason that if the accused is guilty on one count that that necessarily means that he is the type of person who would be guilty of another, that is impermissible and you cannot reason in that way.  I repeat, the only way you can use the evidence of other complainants when deciding a particular count as to whether the charge has been proved, is to consider the improbability of these complainants giving accounts of happenings which have a degree of similarity unless those happenings actually occurred.

   Ladies and gentlemen I hope that is clear.  If, like any of my directions, there is any lack of clarity, you need only ask after you have retired and I will try to repeat it and try to make it clearer.

   Still dealing with that topic, let me now deal with what the prosecution relies upon by way of similarities for you to indulge in that exercise.  In relation to all four complainants the Crown alleges that there are these similarities which allow you to say and to deal with the matter in the way that I have said.

   One, the accused was in a position of authority at Eden Park Boys’ Home and he gained an introduction to and control over each of the complainants as a result of his position there.  That is similar and consistent with all four complainants.

   Secondly, each of the complainants was in a particularly vulnerable position, given the isolation from their families.

   Next, in relation to each of the complainants, on their versions, he would use methods of punishment and fear to gain control over them.  He was violent to them all.  That is a common thread.  Because of his position over them, he would create opportunities of isolation with them in order to be alone.  On the Crown case, the accused would engage in sexual activities with each of the complainants, including anal intercourse, and each of the complainants was frightened because of his violent nature so they did not complain.  You might think they are the common similarities going through the evidence of the four complainants.

   The prosecution case is, when considering counts in relation to one complainant, you can bear in mind three other complainants made allegations of a similar nature in the way I have just described, and you will bear in mind the direction I have given you.  But I have also directed you will bear in mind the question of the possibility of contamination or collusion between them, and you have heard evidence in this case of the contact between the witness [GR] and the witness [GF].  If it is a reasonable possibility that that is an explanation as to the similarity of their allegations, namely that contact, you cannot use the evidence of one in relation to the counts involving the other in the way that I have directed.

   [24]   AB 198-200.

10. Counsel submits that the trial Judge failed to adequately direct the jury that the probative value of the evidence must be such that the jury is satisfied that its value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity to render it admissible.  It is submitted that, in failing to explain to the jury what he means by “requisite degree of similarity”, the Judge erred.

11. I reject this submission.  In reading the summing up as a whole, the trial Judge made it clear to the jury that they must consider whether there was sufficient similarity between the conduct in relation to each count to conclude that it is improbable that the accounts given by each complainant did not occur. 

12. I note that, at trial, the defence case was argued on the basis that there was a possibility that the two witnesses, DF and GR, had colluded in giving their evidence.  No complaint was made by counsel that the Judge was in error in his directions to the jury.

13. The direction to the jury as to how to consider the similar fact evidence and how to use that evidence was adequate.  No error has been demonstrated.

    Appeal against sentence

14. The appellant’s next ground of appeal is that the non-parole period imposed by the sentencing Judge was manifestly excessive.  The Judge, in his sentencing remarks, observed that the length of the sentence could well be a life sentence, having regard to the appellant’s age.

    Submissions of the appellant

15. Counsel for the appellant submits that the reference to the appellant’s age was too brief to enable this Court to know whether sufficient consideration was given to the appellant’s age and associated ill-health.  Counsel did not contend that the reference to the appellant’s age was so brief as to be inadequate and so constitute an error of law for that reason. 

16. The appellant does not contend that the length of the head sentence was manifestly excessive.  Counsel submits that the appellant’s advanced age was a factor that should have been given greater weight in setting the non-parole period of 12 years, emphasising that the earliest the appellant will be eligible for parole is when he is 88 years of age.  Counsel submits that such a lengthy non-parole period would be psychologically crushing for a person of the appellant’s age because he faced the very real prospect of dying in gaol.[25]  As such, it is argued that it would be a reasonable extension of mercy for the Court to lower the non-parole period.[26]  It is further submitted that, as time progresses, the appellant’s age and worsening health would make imprisonment increasingly difficult for him.[27]

    [25]   R v Hunter (1984) 36 SASR 101, 104 per King CJ; R v Bednikov (1997) 95 A Crim R 200, 226.

    [26]   Gulyas v Western Australia (2007) 178 A Crim R 539, 547 per Steytler P.

    [27]   R v Vachalec [1981] 1 NSWLR 351, 353 per Street CJ; R v Smith (1987) 44 SASR 587, 589 per King CJ; Gulyas v Western Australia (2007) 178 A Crim R 539, 548 per Steytler P.

17. For these reasons, counsel for the appellant submits that the non-parole period of 12 years imposed is manifestly excessive.

    Submissions of the respondent

18. Counsel for the respondent argues that, in all of the circumstances, the non-parole period of 12 years falls within an appropriate range.  She submits that in certain circumstances the seriousness of the offending outweighs other considerations such that the non-parole period is properly proportionate to the gravity of the crime. There is no statutory requirement in terms of the length of the non-parole period or norm as to the proportion of the head sentence which the non-parole period should represent. It follows that the court can therefore fix a non-parole period reflecting a greater percentage of the head sentence to reflect the serious nature of the offending.[28]

    [28]   R v Creed (1985) 37 SASR 566, 568-69 per King CJ.

19. Counsel for the respondent further submits that, whilst the authorities demonstrate that the advanced age of a defendant may be a relevant fact to the length of a sentence, it does not necessary follow that it will always play a significant role.[29]

    [29]   R v Liddy (No 2) (2002) 84 SASR 231, 244 per Mullighan J; at 296 per Gray J.

20. As to the consideration of the appellant’s ill health, counsel submits that, as with age, whilst the health of an offender is always relevant to the consideration of a sentence, it is but one factor.[30]  Furthermore, she argues that there was nothing in the evidence before the sentencing Judge to indicate that imprisonment would have a gravely adverse effect on the appellant’s health.

    [30]   R v Smith (1987) 44 SASR 587, 589 per King CJ.

    The relevance of advanced age in sentencing

21. Section 10(1)(l) of the Criminal Law (Sentencing) Act 1988 provides that the age and physical condition of a defendant are factors to be considered in sentencing a defendant. 

22. In Hunter,[31] a Crown appeal against a sentence imposed upon a 73 year old solicitor who had been convicted of nineteen counts of fraudulent conversion, King CJ said: [32]

    The difficult aspect of the respondent’s case is his age. A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him. It may be that when that consideration is borne in mind, it can be said that the sentence of five years' imprisonment, which at first sight seems very lenient for the respondent's criminal conduct, is nevertheless within the scope of the judge's sentencing discretion. I am unable to feel the same way, however, about the non-parole period. In fixing a non-parole period, a sentencing judge must direct his attention to the minimum period for which the offender must, if the purposes of punishment are to be served, remain in prison. He must then turn his attention to the factors which bear upon the particular offender as a candidate for parole. The respondent is undoubtedly an excellent candidate for parole. There is every reason to believe that he would not offend again. It is necessary, however, that the time required to be spent in prison be adequate punishment for the crime committed. The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment. Only if it meets that criterion can a sentence satisfy the sense of justice of the community which is expressed in the criminal law and in the practice of the courts in applying the criminal law.

    [31]   R v Hunter (1984) 36 SASR 101.

    [32] Ibid, 103 per King CJ.

23. Courts have often extended a degree of mercy in cases of advanced age because each year of the sentence represents a substantial proportion of the period of life which is left to an elderly offender.[33]  Although the present case involves an elderly offender, there is the additional consideration, that the appellant is an offender who has escaped the consequences of his criminal conduct for decades before finally being brought before the Court.  Had he been convicted of his crimes soon after committing them, the appellant would have spent a significant number of years in gaol in the prime of his adult life.  Instead, he had the benefit of living what may arguably have been his best years as a free man.  This benefit must reduce the force of the submission that the appellant will be spending a significant proportion, if not all, the latter years of his life in custody.

    [33]  Gulyas v Western Australia (2007) 178 A Crim R 539, 547 per Steytler P.

24. It has been said that old age, particularly when combined with ill-health, may constitute a basis on which the Court, in the exercise of mercy, may impose a sentence which is significantly shorter than might otherwise be the case. In some circumstances, general deterrence may need to surrender some ground to the need to exercise mercy and take account of the possibility that the offender might not live to be released.[34]  However, courts recognise that advanced age must be considered in the context of the broad objectives of sentencing and that general deterrence is not an irrelevant consideration in a case in which advanced age is a factor justifying significant leniency.[35]

    [34]   Smith v The Queen, (Unreported, Western Australia Court of Criminal Appeal, Malcolm CJ, Pidgeon      and Anderson JJ, 2 June 1994); Austin v The Queen (1996) 87 A Crim R 570.

    [35]   R v Holyoak (1995) 82 A Crim R 502, 507 per Allen J.

1. This Court has considered the issue of how to sentence an older offender in R v Liddy (No 2).[36]In that case, Mullighan J said:[37]

   The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence. (citations omitted)

   [36] (2002) 84 SASR 231.

   [37]   R v Liddy (No 2) (2002) 84 SASR 231, 244 per Mullighan J.

2. Likewise, Gray J said:[38]

   It is well settled that age may operate to mitigate sentence. It is a relevant matter to be considered in the fixing of a non-parole period. However, age cannot be used to justify the imposition of an unacceptable or inappropriate sentence. Proper regard must be had to the punitive, deterrent, retributive and rehabilitative aspects of punishment. In the present case no special relevance attaches to the appellant’s age.

   [38] Ibid, 296 per Gray J.

3. The sentencing objective of general deterrence, far from having to surrender to mercy, arguably becomes more important in a case such as this where, after years of having escaped the consequences of their criminal conduct, offenders who have sexually abused children are finally brought to justice.  It is important that the public is aware that people who commit sexual offences against children will be brought to account for their crimes, no matter how much time passes.

   The relevance of ill health in sentencing

4. I agree with the submissions of counsel for the respondent that whilst the health of an offender is always relevant to the consideration of a sentence, it is but one factor.  In Smith,[39] King CJ said:[40]

   … The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

   [39]   R v Smith (1987) 44 SASR 587.

   [40] Ibid, 589 per King CJ.

5. Evidence of the appellant’s health was before the sentencing Judge who noted that there were reports and evidence throughout the trial, and after the trial, in relation to the appellant’s medical condition. The Judge was of the view that the appellant’s health is not perfect, but it is not unusual for a person of his age.[41]  Counsel for the respondent submitted that the evidence disclosed nothing more than the fact that the appellant is elderly and suffers from some of the conditions that one might expect a more elderly member of the community to suffer.  I agree.  The evidence does not indicate that imprisonment would have a gravely adverse effect on the appellant’s health.  The sentencing Judge was correct.

   [41]   Holyoak v The Queen (1995) 82 A Crim R 502.

   Conclusion on appeal against sentence

6. There are cases where it is necessary to impose a sentence which may have the consequence that there is a very real prospect that a defendant will die in gaol.[42]  This is such a case.  The offending was grave.  It continued over a prolonged period.  It was associated with violence.  The defendant had scant regard for the welfare of vulnerable young children placed in his care.  His conduct was callous.  There is little one can say in favour of the defendant. 

   [42] Ibid.

   Orders

7. I would dismiss both the appeal against conviction and sentence.

8. KOURAKIS J:                  I have had the advantage of reading the draft reasons for judgment of Sulan J.  I shall not repeat the factual and procedural history of this matter.

9. For reasons that I shall briefly explain, I have concluded that the evidence of the offending against each of the complainants was admissible as proof of the offending against the others.  In particular, the evidence of the offending against GR was admissible on the counts charging offences against DF, notwithstanding the contact between them whilst they were both residents of Eden Park and many years later in 2005.  Similarly, the evidence of offending against DF was admissible against the appellant on the charges alleging offences committed against GR.  My reasons for so holding differ from those of the trial Judge and Sulan J.

10. In my view the admissibility of the evidence does not depend on the Judge’s factual finding that the complainants, whose evidence he heard on the voir dire, were witnesses of truth and that their accounts were not affected by concoction or any other form of contamination.  Nor, to put the matter more generally, does admissibility depend on a finding made on a voir dire by a trial Judge that the prosecution have proved beyond reasonable doubt that there was no joint concoction or other form of contamination.  The High Court in Hoch v The Queen[43] did not hold that the admissibility of the evidence was contingent on a finding by the Judge that the complainants did not concoct the evidence.  Indeed, the Court appeared to contemplate an assessment undertaken on the witness statements alone, the purpose of which is to determine whether there is a sufficient risk of concoction to destroy the probative force of the circumstance that several complainants have made similar allegations.

    [43] (1988) 165 CLR 292.

11. In my view there was insufficient danger of concoction in this case; the broadly similar complaints made by the several victims were explicable only by the guilt of the appellant.  Moreover, since the decision in Pfennig v The Queen,[44] the test for admissibility in cases like this one and Hoch is now as follows:  Is the improbability that the several similar accounts have been jointly or separately fabricated sufficient to dispel a reasonable doubt which the trial Judge must assume is left by evidence peculiar to each individual count?  Applying that test, I would hold that the evidence of offending against each of the complainants was cross-admissible.  I elaborate on my reasons for so holding below.

    [44] (1995) 182 CLR 461.

    The admissibility of evidence of other offending

12. The development of the principles governing the admissibility of other offending commences with the dichotomous statement of principle of Lord Herschell LC in Makin v Attorney-General for New South Wales:[45] Evidence of other offending cannot be led for the purpose of showing that the accused is a person likely from his criminal conduct to have committed the offence, but that evidence can be admitted if it is relevant for another reason.[46]  The inherent tension between the two limbs of that principle[47] was accommodated by an approach which, until the House of Lords’ decision in Reg v Boardman,[48] held that mere propensity evidence was inadmissible and that evidence of other offending was only admissible if it went to something other than disposition.[49]  The other evidential purposes which have justified the admission of evidence of other offending share the common feature that they demonstrate the improbability of the accused’s innocence by reference to some aspect of human experience other than the likelihood of recidivism.  For example, evidence of other offending may demonstrate the improbability of an accused suffering the misfortune of losing several close associates through accidental death or accidentally finding himself at the scene of several similar crimes.  In other cases, the evidence may demonstrate the improbability of someone other than the accused using an instrument of crime in the same peculiar way as the accused.  However, if any other reason at all was sufficient, the second limb of the rule in Makin would largely negate the first.  Furthermore, over time there was an increasing awareness that in some cases the “other” purpose was perhaps propensity in another guise,[50] while in some cases the probative weight of the propensity demonstrated by the evidence was sufficient in itself to overcome its prejudicial effect.[51] 

    [45] [1894] AC 57.

    [46]   Makin v Attorney-General for New South Wales [1894] AC 57 at 65.

    [47]   See Pfennig v The Queen (1995) 182 CLR 461 at 476 per Mason CJ, Deane and Dawson JJ.

    [48] [1975] AC 421.

    [49]   See Markby v The Queen (1978) 140 CLR 108 at 116, Perry v The Queen (1982) 150 CLR 580 at 609; Sutton v The Queen (1984) 152 CLR 528 at 545-6, 556-7 and 562-3; Pfennig v The Queen (1995) 182 CLR 461 at 477.

    [50]   Harriman v The Queen (1989) 167 CLR 590 at 600 per Dawson J; but cf Sutton v The Queen (1984) 152 CLR 528 at 562 per Dawson J.

    [51]   Reg v Boardman [1975] AC 421; Director of Public Prosecutions v P [1991] 2 AC 447.

13. In Boardman, the House of Lords discarded the “otherwise relevant” approach, instead adopting as the guiding principle the test of whether the prejudice to the accused is outweighed by the probative force of the evidence.[52]  That test was confirmed in Director of Public Prosecutions v P,[53] where the House of Lords rejected the proposition that “striking similarity” was an essential prerequisite of admissibility of evidence of other offending.[54]  In P, evidence of offending by the accused against one of his daughters was admitted as evidence of the commission of offences against another daughter.

    [52]   Reg v Boardman [1975] AC 421 at 441 per Lord Morris of Borth-y-Gest, at 444 per Lord Wilberforce, at 453-4 per Lord Hailsham of St Marylebone and at 462 per Lord Salmon.

    [53] [1991] 2 AC 447.

    [54]   Director of Public Prosecutions v P [1991] 2 AC 447 at 460-1.

14. After the decision in Boardman, the requirement that evidence of other offending exhibit a strong degree of probative force, or that its probative force clearly transcend the prejudicial effect of mere criminality or propensity, was accepted in Australia by the High Court without abandoning the requirement that the evidence be relevant other than by demonstrating propensity.[55]  However, in Pfennig the High Court discarded that approach, which is articulated in the passage from Markby v The Queen[56] cited by Sulan J, and held that it was not necessary to show that evidence of other offending was relevant to “some other issue”.[57]

    [55]   Markby v The Queen (1978) 140 CLR 108 at 117; Perry v The Queen (1982) 150 CLR 580 at 586, 589; Sutton v The Queen (1984) 152 CLR 528.

    [56] (1978) 140 CLR 108 at 116.

    [57]   Pfennig v The Queen (1995) 182 CLR 461 at 481.

15. The test for the admissibility of evidence of other offending established by Pfennig is that there is no reasonable view of that evidence, in the context of the prosecution case, which is consistent with innocence.[58]  That test has been explained by reference to the circumstantial nature of evidence of other offending.  In particular, the probative force of such evidence lies in its capacity, as circumstantial evidence, to exclude any hypothesis consistent with innocence.[59]  Mason CJ, Deane and Dawson JJ held that it is only when evidence of other offending denies any doubt which might be entertained on the other evidence that one can “safely conclude that the probative force of the evidence outweighs its prejudicial effect”.[60]

    [58] Ibid at 485.

    [59]   Sutton v The Queen (1984) 152 CLR 528 at 564; Harriman v The Queen (1989) 167 CLR 590 at 602; Pfennig v The Queen (1995) 182 CLR 461 at 483.

    [60]   Pfennig v The Queen (1995) 182 CLR 461 at 483.

16. The recent High Court decision of HML v The Queen[61] has confirmed that the Pfennig test remains the criterion for the admissibility of evidence of other offending tendered to establish a criminal propensity.[62]  However, the application, or at least the usefulness, of the test where the evidence of other offending has a probative use other than by demonstrating propensity is open to some doubt.[63]

    [61] (2008) 235 CLR 334.

    [62]   HML v The Queen (2008) 235 CLR 334 at 358-9 [26]-[27] per Gleeson CJ, at 362 [41] per Gummow J, at 370-371 [59]-[61] per Kirby J, at 396-398 [164]-[169] per Hayne J, at 431-2 [288]-[289] per Heydon J, at 485-488 [455]-[467] per Crennan J and at 499-502 [502]-[511] per Kiefel J.

    [63]   HML v The Queen (2008) 235 CLR 334 at 358-9 [26]-[27] per Gleeson CJ, at 431-2 [288]-[289] per Heydon J, at 485-488 [455]-[467] per Crennan J and at 499-502 [502]-[511] per Kiefel J.

17. In Phillips v The Queen,[64] the High Court elaborated on the application of the Pfennig test:[65]  In applying the Pfennig test, it is not the function of the trial Judge to determine whether the prosecution evidence as a whole, including the evidence of other offending, proves guilt beyond reasonable doubt or that a jury acting reasonably must convict.  Nor does the trial Judge look at the evidence of other offending in isolation for the purposes of deciding whether guilt is proved by it beyond reasonable doubt.  Rather, a trial Judge must make two assumptions.  First, the trial Judge must assume that the similar fact evidence will be accepted as true.  Secondly, it must be assumed that what I shall refer to as the “primary prosecution case”, that is, all of the prosecution evidence except for the evidence of other offending, has left the jury with a reasonable doubt.[66]

    [64] (2006) 225 CLR 303.

    [65]   Phillips v The Queen (2006) 225 CLR 303 at 323-4 [63].

    [66]   HML v The Queen (2008) 235 CLR 334 at 428-429 [284] per Heydon J, at 501 [510] per Kiefel J. I mention that this sequential approach taken to the question of admissibility is unlikely to be useful for the purpose of directing a jury on how it might approach its task of weighing the evidence.

18. In my respectful opinion, notwithstanding this helpful elaboration of the Pfennig test, a further question remains:  What is the magnitude of the reasonable doubt which the trial Judge must assume that the jury will have on the primary prosecution case?  The doubt may be substantial where the primary prosecution case is weak.  In such a case, the evidence of other offending would need to have relatively greater probative weight to remove the postulated doubt left by the primary prosecution case.  On the other hand, the doubt may only be slight where the primary case is strong.  In that case, the improbability of innocence demonstrated by the evidence of other offending would not need to be very high to satisfy the Pfennig test.  Much might also depend on the nature of the doubt that is to be assumed.  For example, in a case involving a course of sexual exploitation of a child the primary prosecution case may leave little doubt that offences were committed from time to time but leave open to much greater doubt whether the offending occurred on the precise occasions charged.  The capacity of the evidence of other offending, if accepted, to remove any doubt of the former kind can hardly be doubted,[67] but it may amplify rather than remove a doubt of the latter kind.

    [67]   HML v The Queen (2008) 235 CLR 334 at 501-2, [510] per Kiefel J

19. If it be accepted that the magnitude of the assumed doubt is a relevant matter, it may be that ultimately there is little difference between the test proposed by Mason CJ, Deane and Dawson JJ in Pfennig and the alternative approach taken by McHugh J.  McHugh J accepted that the requirement that evidence of other offending be relevant for a purpose other than propensity should be abandoned, but reaffirmed the basic principle which evaluated the probative value of the evidence against its prejudicial effect.[68]  However, his Honour acknowledged that “prejudicial effect” and “probative value” are incommensurables and that a mathematical calculation was therefore not possible.[69]  McHugh J explained that the test requires the trial Judge to make a value judgment as to where the interests of justice lie having regard to both the risk that the admission of the evidence would prejudice the fair trial of the accused and the probative strength of the evidence.[70]  On that approach, if the risk of an unfair trial is very high, the probative value of the evidence disclosing criminal propensity would need to be so cogent that it makes the guilt of the accused a “virtual certainty”.[71] In other cases, where the risk of an unfair trial is slight, the evidence may be admitted notwithstanding that it is merely probative of the guilt of the accused.  It follows that where the prosecution relies almost entirely on propensity as disclosed by the evidence of other offending, that evidence would need to be very cogent to be admitted.  In other cases, particularly those where the evidence is admissible for a reason other than the accused’s propensity, the risk of prejudice may be so slight that justice both to the accused and to the prosecution is best served by admitting the evidence.[72]

    [68]   Pfennig v The Queen (1995) 182 CLR 461 at 528 per McHugh J.

    [69] Ibid at 529.

    [70] Ibid at 528-9.

    [71] Ibid at 529.

    [72] Ibid at 529-30.

20. On the approaches of both the majority judgment in Pfennig, as elaborated by the subsequent decisions of Phillips and HML, and the judgment of McHugh J in Pfennig, it appears that the degree of probative force that evidence of other offending must have to be admitted is affected by the nature and strength of the primary prosecution case.  The improbability of innocence demonstrated by the evidence of other offending must be sufficient to dispel the doubt which a jury could reasonably entertain on the primary prosecution case.

    Cases involving multiple complainants

21. It remains to consider the application of the general principle to cases where the admissibility of evidence of offending against several complainants is challenged by the accused.  In such cases, it is important to appreciate that “the probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred”.[73]

    [73]   Pfennig v The Queen (1995) 182 CLR 461 at 482 per Mason CJ, Deane and Dawson JJ.

22. In Hoch, Mason CJ, Wilson and Gaudron JJ said “that to determine the admissibility of similar fact evidence the trial judge must … ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused”.[74]  Their Honours then proceeded to consider the cross-admissibility of evidence of sexual offending against several complainants in the following way:

    Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction.  That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience.  It is not a matter that necessarily involves an examination on a voir dire.  If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witness had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible.  On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible.  Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.  It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.[75] (emphasis added)

    [74]   Hoch v The Queen (1988) 165 CLR 292 at 296.

    [75] Ibid at 297.

1. Brennan and Dawson JJ posed the question a little differently.  They said:

   If there is a real danger of the concoction of similar fact evidence it is consistent with the attitude which the law adopts towards evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof.[76]

   [76] Ibid at 302.

2. Later their Honours spoke of “whether the similar fact evidence might be accounted for by a cause common to the witness”, and whether “there is a ‘real chance’ of conspiracy among the complainants”.[77]

   [77] Ibid at 303-4.

3. In my respectful opinion, it is reasonably clear from those passages that it is not the function of the trial Judge to reach a conclusion, as a matter of fact, that the complainants did or did not concoct their evidence.  Such a conclusion could hardly be made on the statements alone without testing the evidence by cross examination, a course which the High Court did not expect would be adopted as a general rule.  The observations of Gaudron J in BRS v The Queen,[78] cited in the judgment of Sulan J, must be read in the context of the issues before the High Court on that appeal.  In BRS, the evidence of another victim was adduced at trial without objection because the appellant had decided to put his character in issue and the evidence was in any event admissible for reasons quite unrelated to improbability or propensity reasoning.  In my respectful opinion, the observations of Gaudron J do not support any different understanding of the decision in Hoch than the one I have expressed.

   [78] (1997) 191 CLR 275 at 300-1.

4. Even in those cases mentioned in the plurality judgment in Hoch, where complainants might be called on the voir dire the purpose is not to assess the truth of their testimony but to ascertain the circumstances in which the complaints came to be made.  If the witness statements and any further evidence adduced in the voir dire disclose not just an opportunity to concoct but a realistic motive to do so, the possibility of concoction may be such as to deprive the evidence of the transcending force required for its admission; or, on the approach of McHugh J in Pfennig, the risk of miscarriage through the jury placing more weight on the multiple accusations than they objectively warrant would be too great to allow the admission.  However, the warning given by Brennan and Dawson JJ in Hoch that a trial Judge should not lightly find that there was a real chance of concoction recognises that the probative force of the improbability reasoning is not destroyed by antecedent contact and friendship between the complainants alone.[79]  Only what I would describe as a fraught opportunity to jointly concoct the allegations deprives the evidence of its probative force.

   [79]   Hoch v The Queen (1988) 165 CLR 292 at 304.

5. It is necessary on this issue to refer to the decision of this Court in R v Dawson-Ryan.[80]  In Dawson-Ryan this Court held that it is not an error, affecting the admissibility of the evidence of other complainants, for a trial Judge to make findings of fact that the complainants did not concoct, or dishonestly collaborate in making, their allegations.  That conclusion must be accepted.  If a real chance of concoction does not appear on the face of the material before the trial Judge, then such a finding is merely surplus and not an error.  However, with respect, I do not accept the following observation made by the Court about the role of a trial Judge who holds a voir dire to determine the admissibility of those statements.  The Court said:

   The court in Hoch was stating the principle that a judge on a voir dire should not make findings of credibility for the purpose of determining the truthfulness of the complainant's account of the alleged act constituting the offence.  Rather, the purpose of receiving evidence from a complainant, or any other witness, on the voir dire is to determine whether there was such a possibility of concoction that it would render the similar fact evidence capable of a reasonable explanation other than guilt.  When receiving a complainant’s evidence viva voce for this permissible purpose, an assessment by a judge inevitably involves findings as to credibility.[81]

   [80] (2009) 104 SASR 571.

   [81]   R v Dawson-Ryan (2009) 104 SASR 571 at 579 [28].

6. The complainants’ witness statements, or their later evidence adduced on voir dire, may expressly disclose a real opportunity or motive to collaboratively concoct their complaints or may disclose facts from which such an opportunity or motive may be inferred.  If so much appears from their witness statements and evidence, their express denial of the allegation of corroboration will not usually, for the purposes of the Hoch test, remove the risk of concoction and allow the admission of the evidence even if the trial Judge were prepared to accept their denials beyond reasonable doubt.  If other witnesses give evidence of such an opportunity or motive a question might arise as to the credibility of the other witnesses but if their testimony is plausible a finding by the trial Judge that the complainants had neither motive nor opportunity to concoct would again generally not allow the admission of that evidence.

7. Therefore as a general proposition I would not expect the trial Judge’s assessment of the complainants’ credit to “inevitably” arise on the voir dire.  So much is consistent with the expectation of the High Court in Hoch that admissibility will be generally determined on the voir dire.  Indeed, the premise in the first sentence of the passage I have cited from Dawson-Ryan does not sit comfortably with the concluding sentence.  A finding that the complainants have truthfully denied an opportunity to concoct when coupled with a conclusion that the similarity of the accounts excludes innocent coincidence is in effect a finding that the allegations are true.

8. There is plainly some tension between a finding of credibility and the guilt which it implies and the constitutional function of the jury to determine guilt.  The practical difficulty in assessing credit on a voir dire is yet another reason for the approach adopted in Hoch.  The reason in principle why that approach should be adopted is that the purpose of the test for admissibility proposed in Hoch is to determine whether it is unsafe to commit the issue of the reliability of the complainants’ evidence to the jury and not to have the trial Judge determine their credit.

   Application of principles to the present case

9. The evidence in this case discloses no more than bare and infrequent contact between GR and DF.  On the assumption that the appellant had not subjected the complainants to inappropriate violence, there is no apparent reason for them to conspire together to falsely accuse him.  If it were to be accepted that the appellant subjected them to non-sexual violence, I would still regard the possibility that they would, as adults, find common cause to accuse the appellant of sexual offending as no more than a remote possibility.  On an assessment of the inherent probabilities apparent on the face of the evidence of GR and DF and without relying on the credit based findings of the Judge excluding the possibility of concoction, I conclude that the evidence does not disclose any real chance that the complainants improperly collaborated to falsely accuse the appellant.

10. It is next necessary to consider the probative force of the similarity in allegations made by the complainants.  I do not share the view expressed by Sulan J that factors like the vulnerability of the complainants, the use of violent disciplinary measures and the isolation in which the offences occurred are very significant.  Offences of this nature can hardly be committed in an institution like Eden Park without those attendant circumstances.  The form the sexual abuse alleged by the complainants is certainly not unique.  The accounts of the complainants can be regarded as only broadly similar.  Nonetheless, in my view it is highly improbable that even those accounts could be individually imagined or fabricated and by sheer coincidence share those broad similarities.  I think that there is much probative force in the circumstance that four complainants have alleged sexual offending, even of this general nature, over the period of a decade.  In my view the multiplicity of complaints of sexual offending by complainants with little or no opportunity and no sensible motive to concoct the allegations against the appellant makes an innocent explanation of their evidence most improbable.  If the admissibility of the evidence of the other complainants must be determined by asking whether it is reasonably explicable on the basis of concoction or individual fabrication, I would find that it is not so explicable.  However, for the reasons I have given above, the test established by Pfennig focuses not just on the evidence of the other offending but on its capacity to remove a doubt which is assumed to linger over the primary prosecution case.  It is to that test which I now turn.

11. The final question in the application of the Pfennig test can be stated as follows:  Is the improbability, arising out of the circumstances in which the complaints were made, that several complainants have falsely accused the appellant sufficient to remove any doubt that the jury may reasonably have entertained on the primary prosecution case?  Whether or not the multiplicity of broadly similar accounts of sexual offending is capable of removing that doubt depends on an assessment of both the improbability of individual fabrication or concoction on the one hand and the strength of the primary prosecution case on the other.  In my view, whatever level of doubt a jury may have about acting on the sworn evidence of the complainants in this case, the improbability of the broadly similar accounts to which I have referred is high enough to dispel it.

12. Similarly, if I were to adopt the approach of McHugh J in Pfennig, I would find that the probative force of the evidence of other offending is very strong and the prejudice small because improbability reasoning and not propensity reasoning is employed.  A jury in the circumstances of this case would be able to safely and fairly weigh the improbability of individual fabrication, imagination or joint concoction of the accusations.  The case as it was put by the prosecution and left by the Judge did not involve any propensity reasoning.  Indeed, the jury were warned not to reason from, or draw any conclusions based on, propensity.  The risk of miscarriage was therefore small.

13. It follows that the evidence of offending against each complainant was cross-admissible.

    The remaining grounds of appeal

14. I would dismiss the complaint about the Judge’s direction on the use of the evidence of other offending and also the appeal against sentence.  I agree with the reasons given by Sulan J for so holding.

    Conclusion

15. The appeal should be dismissed