R v F

[2002] NSWCCA 125

Reported Decision: (2002) 129 A Crim R 126

New South Wales

Court of Criminal Appeal

CITATION:	R v F [2002] NSWCCA 125
FILE NUMBER(S):	CCA 60779/01
HEARING DATE(S):	20/2/02
JUDGMENT DATE:	9 April 2002
PARTIES :	Regina F
JUDGMENT OF:	Meagher JA at 1; Wood CJ at CL at 2; Bell J at 56

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1/11/0497
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

COUNSEL :	G I O Rowling (Crown) P Byrne SC (CCF)
SOLICITORS:	S E O'Connor David Giddy & Associates
CATCHWORDS:	Criminal Law - Evidence - admissibility - tendency and coincidence - evidence of similar offences with other victims - possibility of concoction - complainants at same school, but of different ages with no reason to socialise together - indecent assault by teacher - joinder of counts or severance of counts - no formal orders made by judge.
LEGISLATION CITED:	Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Barton v The Queen (1980) 147 CLR 75 BRS v The Queen (1997) 191 CLR 275 Chow v DPP (1992) 28 NSWLR 593 Commonwealth v Mullane 1961) 106 CLR 166 Connolly v Director of Public Prosecutions (1964) AC 1254 De Jesus v The Queen (1986) 61 ALJR 1 Gipp v The Queen (1998) 194 CLR 106 Hoch v The Queen (1988) 165 CLR 292 KRM v The Queen (2001) 75 ALJR 550 The King v Snow (1915) 20 CLR 315 Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 Pfennig v The Queen (1995) 182 CLR 461 Regina v ACK, NSWCCA 22 April 1996 Regina v AH (1997) 42 NSWLR 702 at 709 R v Bailey (1988) 36 A Crim R 633 R v Bozatis and Spanakakis (1997) 97 A Crim R 296 Regina v Colby [1999] NSWCCA 261 Regina v Cooper, NSWCCA 24 February 1998, R v Georgiou (1999) NSWCCA 125 Regina v GLC, NSWCCA 31 March 2000 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457 Regina v OGD (No 2) [2000] NSWCCA 404 R v Powch (1988) 14 NSWLR 136 R v Rogerson (1990) 45 A Crim R 253 Regina v Saunders (1994) 72 A Crim R 355 R v Steffan (1993) 30 NSWLR 633 Regina v T, NSWCCA 19 October 1988 Smith v The Queen (2001) 75 ALJR 1398 Sutton v The Queen (1984) 152 CLR 528 Thompson v The Queen (1989) 152 CLR 528
DECISION:	Crown appeal dismissed. Leave to appeal granted to respondent, but appeal dismissed.

- 36 -IN THE COURT OF

60779/01

MEAGHER JA
WOOD CJ at CL
BELL J

Tuesday 9 april 2002


Regina v F

The accused was charged with the indecent assault of five former pupils. The crown originally consented to presenting individual indictments, but there was no formal order made. Verdicts of not guilty were entered when the respondent stood trial on charges against the first complainant. On 24th October, the DPP filed a notice of motion seeking that the charges be heard in a joint trial. The respondent opposed the joinder of the counts. Judge Hock ruled against the respondent, and indicated that, subject to the question of concoction, the crown would be entitled to present the indictment with the counts joined. The judge then went on to consider whether there was sufficient similarity in the evidence for it to qualify as coincidence or tendency evidence, and she held that there was. Judge Hock found that the possibility of concoction had been excluded, except in the case of JPMcF. The Crown conceded that if evidence of the various complainants was not admissible as tendency or coincidence evidence, then the trials should be separated. Thus, it was held that the trial of JPMcF should be heard separately, and the trials for the remaining three complainants should be joined. At no stage was a formal order made concerning the application by the defence for separate trials, nor for the severance of the trial involving JPMcF. The crown appealed the decision to separate the trial of JPMcF, and a preliminary submission was lodged by the respondent seeking separate trials.

Held: (dismissing crown appeal, granting leave to respondent to appeal, but dismissing the appeal):

Whether the Court has jurisdiction to hear the Crown Appeal under s 5F of the Criminal Appeal Act: Determination of the question of joinder or severance of the counts was at the heart of the pre-trial hearing. Having regard to the character and effect of the decision made by the pre-trial judge, the case falls properly for review under s 5F of the Criminal Appeal Act.
R v. Saunders (1994) 72 A Crim R 347, R v. Georgiou (1999) NSWCCA 125, R v. Powch (1988) 14 NSWLR 136, R v. Rogerson (1990) 45 A Crim R 253, R v. Bailey (1988) 36 A Crim R 30, R v. Snow (1915) 20 CLR 315, R v. T NSWCCA, 19 October 1988 cited; R v. Bozatis and Spanakakis (1997) 97 A Crim R 296 applied; R v. Steffan (1993) 30 NSWLR 633 distinguished.

Whether the respondent should be given leave to appeal: Having regard to the way in which the Crown has changed its position, it would be unfair to the respondent if he were not given leave to appeal. Leave is confined to the joinder/severance issue which turned upon the admissibility of tendency and coincidence evidence.

Tendency and Coincidence Evidence: The facts alleged by the complainants were substantially and relevantly similar, and the circumstances in which they occurred were substantially similar, despite some individual differences in detail. The existence of the related acts was not open to an innocent explanation. The evidence had a significant probative value, and the probative value substantially outweighs any prejudicial effect on the respondent. The reasonable possibility of concoction has been excluded (except in the case of JPMcF) by the fact that the boys were of different ages and had no reason to socialise together. JPMcF had been informed by one complainant of an indecent assault before JPMcF made any complaint, and he acknowledged some awareness of similar allegations. There was a reasonable possibility of JPMcF’s evidence having been tainted by this knowledge, and there should be a separate trial in relation to this complaint.

R v. Lockyer (1996) 89 A Crim R 457, R v. Lock (1997) 91 A Crim R 365, R v. T , NSWCCA, 19 October 1988, Pfennig (1995) 182 CLR 461, R v. ACK NSWCCA, 22 Apr 1996 , Hoch v. R (1988) 165 CLR 292, Sutton v. R (1984) 152 CLR 528, De Jesus v. R (1986) 61 ALJR 1, Gipp v. R (1998) 194 CLR 106, BRS v. R (1997) 191 CLR 275 cited; R v. Colby [1999] NSWCCA 261, R v. OGD (No 2)[2000] NSWCCA 404 applied.

Orders:
(1) Crown appeal dismissed.
(2) Leave to appeal granted to respondent, but appeal dismissed.

60779/01

MEAGHER JA
WOOD CJ at CL
BELL J

Tuesday 9 april 2002

Regina v F

Judgment

1 MEAGHER JA: I agree with Wood CJ at CL.

2 WOOD CJ at CL: This is an appeal brought by the Crown pursuant to s 5F of the Criminal Appeal Act 1912. The circumstances in which it arises are somewhat complex.

BACKGROUND

3 In Summary:

(a) The accused, F, was initially charged with the indecent assault of five former pupils at a school where he was the gym master. He was committed for trial in May 2000 on all charges;

(b) On 22 January 2001, following representations by the solicitors for the respondent, the Crown consented to presenting individual indictments so that the charges against the five complainants would be heard separately. As a result they were set down by Judge Christie as back-to-back trials, to be heard separately in the District Court at Wagga Wagga. As the matter was dealt with by way of consent, at this stage, it appears that there was no formal order made for separation of the trials, nor was any consideration given to that question on the merits;
(c) On 14 May 2001, the respondent was arraigned before his Honour Judge Moore in that Court, on charges concerning one complainant, MSF. The Crown presented no evidence after certain preliminary rulings were made and verdicts of not guilty were entered;

(d) On 17 May 2001, the respondent was arraigned before Judge Moore upon the second set of charges involving the complainant GDG. By reason of an event, which was considered to have prejudiced a fair trial, the jury was discharged after the respondent had given evidence, and an order was made for a new trial;

(e) The remaining charges, including those involving GDG, were then set down for trial, as four back-to-back trials, to commence in the District Court at Sydney, on 29 October 2001.

(f) On 24 October 2001, the Director of Public Prosecutions filed a notice of motion seeking that the four sets of charges be heard by way of a joint trial (the respective complainants being the former pupils of the respondent: GDG, SAL, MHS and JPMcF).

(g) On 26 October 2001, the Crown served notices under sections 97 and 98 of the Evidence Act giving notice of its intention to rely upon the evidence of each of the complainants as tendency and coincidence evidence, going to show the guilt of the accused in relation to all counts.

(h) On 29 October 201 when the matter was called on for trial before her Honour Judge Hock, the Crown announced its intention of presenting an indictment, containing the five counts which had been preferred in respect of the four remaining complainants. The respondent opposed the joinder of the counts and submitted that there should be separate trials in relation to each complainant, as had originally been intended.

(i) There was some uncertainty when the matter came before Her Honour as to the correct procedure to be followed, that is as to whether a joint indictment should be presented in a preliminary hearing, followed by a defence application for separate trials; or whether separate indictments should be presented, followed by a Crown application for joinder of the indictments. Reference was made to the provisions of Part 53 of the District Court Rules (Criminal Procedure), in particular rule 11, which requires the accused to enter a plea in advance of any inquiry, by way of a voire dire, into the admissibility of evidence being ordered, and to the decision in Regina v GLC, NSWCCA 31 March 2000. It was there said that, if the question to be ventilated was one of admissibility, then it would be an irregularity to proceed without a plea being taken. However, it would appear that the Court considered that it would have been inappropriate to require a plea if the question was one of joinder or severance of the counts. Their Honours observed obiter, that it was “ inappropriate for the question of possible concoction between the complainants to be heard concurrently with the motion for separate trials .” No reason was given for this proposition, and I would question its correctness, as a general statement, since the question of severance may depend, as it does here, on the admissibility of the evidence as tendency or coincidence evidence, and that may turn upon the question of concoction.

(j) Mr Byrne SC objected to the course proposed by the Crown, having regard to its prior election to present separate indictments. Additionally he drew attention to the prejudice which could be occasioned by the late change of intention, which had only been flagged during the preceding week. It was his submission that separate indictments should be presented, followed by an application by the Crown for joinder of those indictments. Initially it was determined that this was the course which should be pursued, as it reflected the notice of motion filed by the Crown, as well as the history of the proceedings to that point.

(k) When the hearing resumed, after a short adjournment that day, Judge Hock drew attention to several decisions, including Regina v Cooper, NSWCCA 24 February 1998, Connolly v Director of Public Prosecutions (1964) AC 1254 and Barton v The Queen (1980) 147 CLR 75. Together it was suggested they recognised the discretion of the Crown to present an indictment as it saw fit, and the absence of any power in the court to order that separate indictments be joined in a single trial.

(l) It was then decided, although Mr Byrne SC made it clear that he maintained his objection to the joinder of the counts, that a joint indictment should be presented to which the respondent would plead, thereby enabling the relevant issues to be ventilated, including any request made by the respondent for separate trials. As appears from the transcript of 29 October 2001, and the judgment given on 31 October 2001, the requirements for the filing of a notice of motion (by the respondent) seeking separate trials were waived.

(m) The respondent was formally arraigned upon this basis, after which argument was received, by way of a preliminary point, as to whether the Crown should, in fairness, be permitted to depart from the orders which it was suggested had been made, at least by implication, by Judge Christie, and as to whether the respondent would be prejudiced by that course.

(n) In this regard, reference was made by Mr Byrne SC to the decision in Regina v Saunders (1994) 72 A Crim R 347 in support of a submission that absent “ good and sufficient reasons ”, and/or a material change in circumstances, the Crown should be held to the position to which it had originally consented.

It was also submitted by him that there was a risk of prejudice to the respondent in the course now proposed. That arose from the suggested availability of evidence, which could have been led in the first trial, as to the rumours which had spread throughout the school concerning the complainant in that case. Had the respondent been aware of the Crown’s intention to join the four current matters together, then, it was submitted, it may have been advantageous for him to have had all five sets of complaints heard in the one trial.
Additionally, it was suggested that, had the respondent been forewarned of the application, then the question of contamination could have been more actively pursued.
Finally it was submitted that there was a risk of prejudice in so far as the second trial which had initially been part heard (involving the complainant GDG), and which had been aborted through no fault on the part of the respondent, would now be conducted on a different basis, so far as tendency or coincidence evidence would be introduced, if the Crown was allowed to present a joint indictment.

(o) The Crown response to these submissions was three-fold:


(i) That Saunders was distinguishable in that it was a case where there had been an interlocutory decision on the merits to order separate trials, following a pre-trial application, which the Crown later sought to reverse by presenting a joint indictment;

(ii) That there had been a material change in circumstances, in so far as it had become apparent during the earlier trial involving the complainant GDG, that if, contrary to his denial of deliberate touching, the respondent had in fact touched that complainant in the way alleged, then it was an accidental event, having occurred during a gymnastic exercise on the horizontal bar, which he had been supervising. That possibility or “ defence ” of accident, which it was understood would arise in relation to all four complainants, the Crown submitted now made relevant the coincidence or tendency evidence thereby opening the way for a joinder of all counts; and that

(iii) Until, at latest, the making of the order by Judge Christie, the complainant must have been aware of the possibility of the counts having been heard together, so that the respondent should have had an adequate opportunity to explore the possibility of cross contamination and concoction. Additionally, it was put that there was no reason why the respondent could not, even now, pursue that line of defence, or have the complainant in the first trial (MSF) called and made available for cross examination;

(p) In reply, Mr Byrne SC made it clear that the defence was not strictly one of accident. Rather it involved a specific denial of any deliberate touching of any complainant on the penis, either inside or outside his shorts. Although, he added, by reason of the activities in which they had been engaged, there may have been occasions when there had been an inadvertent touching or brushing of the clothes or lower body of the boys.

(q) Upon the second morning of the pre trial hearing (on 30 October 2001), Judge Hock ruled against the respondent in relation to the preliminary argument, and indicated that, subject to the question of concoction, the Crown would be entitled to “ present the indictment with the counts joined .” Mr Byrne appropriately brought to her attention that there was an intervening step to be determined, namely whether there was sufficient similarity in the evidence of the various complainants for it to qualify as coincidence or tendency evidence.

(r) Her Honour then made it clear that the rulings given so far were confined to the preliminary issue, and indicated that the reasons for its determination would be given, when the remaining issues were decided, in a single judgment.

When later delivering the reasons for this preliminary ruling, on the third day of the hearing (31 October), Judge Hock said that she had distinguished Saunders on the basis that, unlike that case, there had here been no earlier decision on the merits, the “ order for separate trials [having been] merely an endorsement of the position adopted by the Crown and the defence ”. Next she indicated that she accepted the Crown submission that it was now “ on notice of the defence, the accused having given evidence in the aborted trial,… and that this had the effect of a reassessment of the earlier decision to run all trials separately .” Although not said in express terms, the clear implication was that this amounted to a change of circumstance and as such provided a good and sufficient reason to depart from the earlier position established by consent.



(s) Argument was received, following the ruling on the preliminary issue, confined to the statements of the four complainants, as to whether or not the evidence would qualify as coincidence or tendency evidence, and was of sufficient probative value, so as to pass the ss 97 and 98 and s 101 tests for admissibility. In the course of these submissions, the Crown made it clear that if the evidence of the various complainants was not admissible as tendency or coincidence evidence, then it accepted that the trials should be separated; but otherwise if the evidence was admissible as such.

(t) Arising out of the submissions, and the express acceptance by the Crown that, if Judge Hock was “ against [the Crown] on [its] application under s 97 and 98 then [it] would separate the trials and not lead the evidence of any other complainant in one particular complainant’s case ”, she noted “ in those circumstances what we are really dealing with now is the question of admissibility of evidence as opposed to separate trials.”

(u) At that point, reasons in the terms noted above (sub para (r)) were formally delivered on the preliminary argument for which a ruling had been given the previous day. Next, her Honour said:
“ on the question of the admissibility of the evidence, my preliminary view is that the evidence is relevant under s 55 and admissible under s 97, not excluded by s 101 unless there is a real possibility of concoction which is the issue that we are now about to deal with and I will deliver a judgment at the conclusion of the evidence and any further submissions that might be made.”
After inquiry by Mr Byrne SC, her Honour noted that she considered the evidence admissible:
“ …at least under s 98 but s 97 raises the same question so we certainly need to embark on the next stage…I should make clear that this inquiry on the voir dire should be limited to the issue of contamination/concoction…”


(v) Thereafter evidence was taken, on the voir dire, on the third and fourth days of the preliminary hearing from the four complainants as well as from two police officers who had been involved in the investigation and from a former student (MB). Some additional material was tendered and taken into account, including the committal depositions, the transcript of the trial before Judge Moore (involving GDG), the statements from the mothers of GDG, SAL and JPMcF, a newspaper article of 15 September 1988, a letter from Wagga Wagga City Council, and the s 97/98 notices.

(w) At the commencement of the fifth day of the hearing, Judge Hock delivered a judgment in which she initially made it clear that she had concluded that the evidence would qualify as coincidence evidence, observing:

“ As I understand it, the accused denies each offence and therefore the issue is did he in fact indecently assault any such complainant.
It seems to me that, on that fact in issue, it is relevant under s 55 of the Evidence Act that a number of other people allege that they too were similarly sexually assaulted by the accused when they were school boys and when the accused was their teacher .”
After recording that notices had been served under s 97 (tendency) and 98 (coincidence) of the Evidence Act , she said:
“ The tendency relied on by the Crown, as I understand it, is the tendency of the accused to touch boys between the ages of twelve to fourteen on the penis. The Crown sets out in point form, (a) to (p), at page 2 of the written submissions which form part of Exhibit A, the similarities on which it relies in respect of s 98. Although not all of the points appear to apply, it seems to me there are sufficient similarities to meet the requirements of s 98(1) and (2). See Zappala CCA 4 November 1991.”

(x) She next recorded a finding that the evidence of the other complainants did have a significant probative value to the fact in issue, before noting that:

“(a) tendency and coincidence evidence cannot be used against a defendant unless its probative value outweighs any prejudicial effect it may have on that defendant (s 101(2) of the Evidence Act; and that
(b) the test to be applied is that the evidence is admissible where there is no other reasonable explanation for it other than the guilt of the defendant (Pfennig v The Queen (1995) 182 CLR 461).”

(y) The relevant question for consideration she identified as the possibility of concoction, which in accordance with the decision in Hoch v The Queen (1988) 165 CLR 292 at 297, requires examination of the facts of the case and the circumstances of the witnesses, in particular, their relationship to one another, and the opportunity and possible motive for concoction.

(z) After a review of the material placed before her on the voir dire, Judge Hock found, by reference to the fact that the boys had been in different classes; to the fact that with one exception they had not known each other; and to the timing of their complaints and statements to the police; that the possibility of concoction had been excluded save in relation to JPMcF, since he had been informed by GDG of his allegation almost immediately after the incident which he had described, and before making a complaint himself. She then expressed her conclusion as follows:

“ In my opinion, coincidence is not available as a reasonable explanation consistent with innocence nor is there any evidence of a financial motive or grudge against the school in general or the accused in particular. There does not seem to me to have been any antipathy towards the accused by any of the complainants prior to the alleged incidents. I do not find there is a real as opposed to a speculative possibility of concoction between (MHS, SAL and GDG): see Colby (1999) NSWCCA 261 at para 111 .

In the absence of those possibilities, in my view there is no reasonable conclusion consistent with the innocence of the accused. Therefore, I would not exercise my discretion under section 101 to reject the evidence, nor am I obliged to exclude it by the operation of s 137.

The evidence is admitted under s 97 and s 98 .”

(aa) It is clear from the concluding sentence that whatever uncertainty may have existed to that point, there was a ruling that the evidence was admissible both as tendency and coincidence evidence. At that stage no order was made, in any formal way, concerning the application by the defence for a separate trial, nor for that matter of the severance of the trial involving JPMcF, although as I next observe, this was the inevitable result of the ruling.

(ab) After delivering judgment, the following exchange occurred:

“ HER HONOUR: Where do we go from there?

BYRNE: Your Honour, that effectively means a separate trial for the [JPMcF] allegation.

HER HONOUR: Yes.

BYRNE: And there are two of those.

HER HONOUR: Yes.

BYRNE: And a joint trial, as I understand your Honour’s ruling, in relation to the [GDG, MHS and SAL] allegations?

HER HONOUR: Yes.”

(ac) When Mr Byrne SC asked for an adjournment so that the matter could be further explored, Judge Hock indicated that she would need to be persuaded why the trial involving JPMcF should not commence on the following day. At that point there was a short adjournment, after which the Crown indicated that it wished to take the matter to the Court of Criminal Appeal, and sought an adjournment of the JPMcF trial itself. There followed a further exchange as follows:

“ HER HONOUR: Mr Byrne, you’d probably know better than I would, this is a ruling on admissibility of evidence as I understood it.

BYRNE: No, it’s not with respect your Honour, I suppose it can be looked at in two ways. It is effectively a ruling on a question of whether a trial should be separate or not so that it would be at least our submission – and whilst my learned friend says we are all taking it to the Court of Criminal Appeal, my understanding is that the Crown is taking it to the Court of Criminal Appeal to challenge the decision to separate one of the trials. Now in those circumstances we would not be seeking leave to appeal to join them together although we would be – that’s the submission we would ultimately make in response to the Crown’s argument but it’s the Crown’s appeal at this stage and of course, as your Honour knows, the Crown has an appeal as of right under section 5F rather than by way of leave but it’s not a question of admissibility of evidence, I wouldn’t have thought, it is a question that is really categorized as a joint or separate trial issue and that, it has been held in the past, to be an appropriate 5F matter. ”

(ad) In further developing the defence position, Mr Byrne SC made it clear, despite his earlier application for an adjournment that he was ready to proceed with the trial involving JMcF, observing:

“ It may well be that the court takes the view that your Honour has raised that it is a question of admissibility of evidence but our submission would be that it is essentially a question of separate or joint trials and that is a 5F issue. So if the Crown is exercising its rights there is nothing we can do about that, we can’t object tot he course that they suggest, it’s a course which is open to them, all we can say is to have it put on the record that we are here ready to proceed in relation to the trial of [JDMcF] which, according to your Honour’s ruling earlier this morning, (we) would be ready to do tomorrow and we would be happy to proceed with that tomorrow but we can’t as it were interfere with the Crown exercising the rights which it has under section 5F. ”

(ae) After a short adjournment to consider these developments, Judge Hock delivered a judgment, which she described as one “ in respect of the admissibility of certain evidence ” and noted that the Crown intended to lodge an appeal from the judgment. With some reservations, she indicated that she would vacate the trial, which had been listed for the following day, and directed that all trials of the respondent be listed at a date which she nominated in April 2002

THE APPEAL

4 As I have observed the Crown appeal is brought in relation to an order “that the trial of the accused in respect of charges involving the complainant [JPMcF] be separated from the trial of the accused in respect of charges involving other complainants”.

5 A preliminary submission was lodged by the respondent, noting that he:

“ will contend on this appeal that the Court should exercise its powers under s 5F(5)(b) (sic) of the Criminal Appeal Act 1912, and make an order that there should be a separate trial of the charges involving each of the four individual complainants. This is the order that was sought on the respondent’s behalf in the interlocutory proceedings from which the Crown’s appeal is brought. ”

6 In reply, a submission was presented by the DPP to the effect that since there had been no applications on the part of the respondent for leave to appeal (under 5F(3)(b)) from her Honour’s decision, (or, I would add, a certificate from her Honour) the Court should not make the order sought by him.

JURISDICTION

7 A preliminary question thus arises in the circumstances outlined, whether the Court:

(a) has jurisdiction to entertain the Crown appeal under s 5F; and whether it
(b) should give the respondent leave to appeal.

8 Both issues arise by reason of the absence of any formal order having been made for severance or joinder of the counts, either by Judge Christie on 22 January 2001, or by Judge Hock following her Honour’s ruling, which essentially went to a question of the admissibility of the evidence of the various complainants. The matter is not made any easier by the fact that the motion which was in fact before her Honour was misconceived, in so far as it was within the discretion of the Crown to present an indictment, in the circumstances of this case (absent any earlier determination on the merits), as it saw fit.

9 In that regard while the District Court (Criminal Procedure) Rules Part 53, rule 10, do permit determination of an application for pre-trial for severance of counts, the rule is silent in relation to the joinder of counts.

10 Essential to a review under s 5F of the Criminal Appeal Act is the existence of an “interlocutory judgment or order”. A wide range of matters have been held to fall within the ambit of this expression, including orders for, or refusal of, separate trials (R v Saunders and R v Georgiou (1999) NSWCCA 125). However, rulings on the admissibility of evidence have been held not to be interlocutory judgments or orders within the meaning of the section: R v Powch (1988) 14 NSWLR 136, R v Rogerson (1990) 45 A Crim R 253, R v Steffan (1993) 30 NSWLR 30 and R v Bailey (1988) 36 A Crim R 633; save where the consequence of the judgment is to rule out all of the Crown evidence leaving it without a case: R v Bozatis and Spanakakis (1997) 97 A Crim R 296.

11 The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the Court: R v Steffan at 636; or in the case of an order, upon it amounting to a command that something be done or not done: The King v Snow (1915) 20 CLR 315 at 324, 361, and Steffan at 636. In Steffan it was said that it was not immediately self evident how a ruling upon the admissibility of evidence could answer either description. Additionally it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial.

12 The immediate question for determination is whether in this case, absent the making of a formal order for severance or joinder of the counts, the Court should entertain the Crown appeal, or give leave to the respondent to pursue his contention.

13 While it would have been preferable for formal orders to have been made, I consider it clear that, behind the admissibility issue, was the question critical for both parties, whether there should be a joint trial as the Crown sought, or separate trials as the defence sought. This issue had been raised from the outset, and it was the sole reason why the coincidence/tendency notices had been served. The Crown did not want a joint trial unless the evidence of the various complainants was admissible as tendency/coincidence evidence.

14 The sole reason why it now brings this appeal is to have the two counts involving JPMcF joined with the counts involving the co-complainants. In order to do that it must displace the finding of Judge Hock as to the possibility of concoction on his part. Underlying its appeal, and its earlier opposition to the trial involving JPMcF commencing in October 2001, is its assessment that proof of tendency or coincidence involving all complainants will strengthen its case generally.

15 For the reasons identified, both the Crown and the defence have an interest in obtaining the decision of this Court as to whether there should be a joinder or severance of the counts. The only formality lacking was the making by Hock DCJ of an order in express terms refusing the defence application for separate trials, on the one hand, and the making of an order directing a separate trial of the JPMcF counts on the other hand. However, since the determination of the question of joinder or severance was at the heart of the pre-trial hearing, and since the admissibility decision inevitably involved the determination of that question, I would regard Steffan as distinguishable, in so far as it was concerned simply with the question whether the evidence of certain conversations had been recorded illegally, and upon that basis was inadmissible.

16 Bozatis and Spanakakis, had some similarity with the present case in so far as the trial judge had made an order permanently staying the proceedings, as the necessary consequence of the evidentiary ruling which he had made, that being an order which was amenable to a review under s 5F. Gleeson CJ, with whom Meagher JA and Bruce J agreed, observed at 303-304:

“ Quite apart from discretionary considerations relating to a grant of leave, where leave to appeal is required, there are numerous judicial statements to the effect that, generally speaking, a ruling on the admissibility of evidence, before or during a trial, is not a judgment or order within the meaning of s 5F. The case of Steffan is an example. (There are dicta to the opposite effect (eg Chow v DPP (1992) 28 NSWLR 593 at 610-611; 63 A Crim R 316 at 330-332).) However, in Steffan (at 640-641; 513) the Court of Criminal Appeal said that there may well be a ‘rare case’ where a ruling on evidence, because it formed the basis of a stay of proceedings , could be the principal legal issue to be determined of a s 5F appeal.

In Lethlean (1995) 83 A Crim R 197 Sheller JA observed that the authorities have established no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other. King CJ, in Legal Practitioners’ Complaint Committee v A Practitioner (1987) 46 SASR 126 drew a distinction between judgments or orders and what he called ‘incidental rulings’. A judgment or order, he said, is a ‘judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings’. However, rulings also decide questions. It is the character of the question, and the effect of the decision , that makes the difference.

One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.

In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. In a passage at 169, cited by Sheller JA in Lethlean, the court said :

‘ What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling, there was no determination. ’

Bellear DCJ, in a passage quoted above, dealt with para 2 of the Notice of Motion by saying that he was making an order excluding ‘all prosecution evidence’ against the respondents. What is important is not his Honour’s use of the word ‘order’, but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterized as a judgment or order. ” (Emphasis added).

17 In my view, having regard to the character and effect of the decision made by Hock J, the present is a case which falls properly for review under s 5F. In this regard it bears some similarity to Regina v T, NSWCCA 19 October 1988 where an appeal under s 5F, brought by the accused, was heard by the Court. It involved a challenge to orders made for the joinder of a number of counts involving several children, who had been pupils of the accused, effectively into two groups which the trial judge directed were to be tried separately from one another. The separation of the two groups followed his Honour’s findings that they were factually different. The joinder of the counts within each group followed a finding first that the evidence concerning them amounted to similar facts, and second that there was no real chance of it being tainted by collusion, fantasy or suggestion. The difference between the two cases lies only in the fact that formal orders for joinder and severance were there made, and a certificate was given by his Honour under s 5F(3)(b) of the Criminal Appeal Act.

18 While the Crown appeal lies of right, I am satisfied having regard to the history of the proceedings, and in particular the way in which the Crown has changed its position, that it would be unfair to the respondent if he were not given leave to appeal, so as to argue the application which he had made, and which did not find favour with her Honour.

19 In this regard, I would however confine that leave to the admissibility of severance points. The threshold point it seems to me, truly involved a discretionary consideration as to whether the admissibility and joinder issues should be entertained at all. It did not, in my view, amount to an interlocutory judgment or order within the meaning of the authorities. Even if it did, I am not persuaded that error was demonstrated in that regard.

TENDENCY AND COINCIDENCE EVIDENCE

20 As I have observed, a critical question for determination, in relation to the admissibility of the evidence, was whether it qualified as tendency or coincidence evidence. That question was dealt with somewhat briefly by her Honour early in the judgment, by reference to the similarities which the Crown had identified in point form (a) to (p), in its submissions. Relevantly, they were said to be as follows:

“ Although the charges alleged against the accused occurred at different times over this 11 year period they have a common thread involving the following similarities:
(a) The 4 boys were all students at [named school]
(b) They were all young, aged between 12 and 14 years;
(c) The accused was working as a gym teacher at the school;
(d) All involved penis play;
(e) All occurred when the boys were in their school uniforms or gym clothes;
(f) Two occasions (GDR para 10 onwards and JPMCR para 11) occurred whilst the accused supported the boys on gym equipment and he touched them on the crotch;
(g) Three occasions (SAL,MHS and JPMcF) the approaches were made to the boys in the privacy of the sports room or his office (which is located in the sports room);
(h) Three occasions (SAL, MHS and JPMcF) each boy was grabbed from behind ;
(h) Three occasions the accused inserted his hand both inside their pants and underpants (SAL para 8, MMS para 20 and JPMcF para 12);
(i) Three occasions each boy was restrained in the use of his hands (GDR’s wrists were strapped to the high bar para 11, JPMcF hands on the parallel bar para 11, SAL had his hands held by the accused behind his back para 7);

(k) With all boys he watched them shower whilst they were naked (GDB para 9; SAL para 2);
(l) With two boys he playfully slapped them on the bottom (GDG and MMS para 18);
(m) With two boys he spoke about sexual matters – with MMS he spoke about “wanking”, penis size, a woman ‘getting wet’ during sex and foreskin para 14 and 15; he asked JPMcF whether pictures of Samantha Fox gave him an erection para 10;
(n) Three boys were ones who had difficulties at school – GDG had problems at school and learning difficulties (petit mal epilepsy p. 27 committal; and misbehaved in mid 1991 called another boy’s sister a slut and disciplined by the accused p. 25); MMS was bullied by other students at the school (para 6); JPMcF’s parents were separated and got into trouble with the deputy School Principal for having pornographic magazines;
(o) those same three boys he gave special attention or told them they were special;
(p) SAL was summonsed from Economics Class (para 6); GDG was told “Mr F wants you over at the high bar” (p. 28)”

21 Although, on the face of the reasons for judgment, there are suggestions that the threshold question of admissibility was determined by reference to coincidence, it does seem that the evidence was also considered to qualify by reference to tendency. These are of course separate considerations, and any direction to the jury would need to reflect the differences which arise.

22 It was necessary for her Honour to give careful consideration, so far as the Crown placed reliance on s 97 of the Evidence Act, to whether or not the conduct alleged by the various complainants was capable of showing that he had a tendency (or propensity) to touch boys on the penis without their consent and had the particular state of mind necessary to make that act one of indecent assault. If it had that character then before it was admissible, the Crown still had to show that it had a “significant probative value” (s 97(1)(c)) – an expression which has been held to mean that the evidence must be more than merely relevant, and to be “important” or “of consequence” (R v Lockyer (1996) 89 A Crim R 457). Its significance, it has been held, depends upon the nature of the fact in issue to which the evidence is relevant, - here whether the respondent did touch the complainants on the penis either inside or outside their shorts in circumstances amounting to an indecent assault – and upon the significance which the evidence may have in establishing that fact: R v Lock (1997) 91 A Crim R 356.

23 Since the evidence was, in this case, to be tendered by the Crown, it was also necessary that it be shown to have passed through the s 101(2) threshold – i.e. that its probative value substantially outweighed any prejudicial effect it might have had on the respondent. The combined effect of s 97(1)(b) and s 101(2) was held in Lock to require an application of the same test as that approved in Pfennig v The Queen (1995) 182 CLR 461 at 481 to 483, and in Hoch v The Queen at 295, namely that the evidence bears no reasonable explanation other than the happening of the event or events in issue. (See also BRS v The Queen (1997) 191 CLR 275 and KRM v The Queen (2001) 75 ALJR 550).

24 In Regina v OGD(No 2) [2000] NSWCCA 404, it was held that, if the Crown failed to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses, the evidence must be excluded, not because of the rule in Hoch, but because of the requirement in s 101(2) of the Evidence Act: see also Regina v Colby [1999] NSWCCA 261 at para 107 to 111.

25 Independently of this provision, the question of admissibility also calls for a consideration of ss 135 and 137 of the Evidence Act, as to the exercise of which, Hoch was held in OGD (No 2) to provide a guide.

26 So far as the Crown relied on s 98 of the Evidence Act, it had to establish first that the acts alleged by the complainants were “related events”, i.e. that they were “substantially and relevantly similar, and that the circumstances in which they occurred were substantially similar” (s 98(2)). Next, it had to meet the requirements noted in relation to the tendency evidence, namely, that the evidence would have ”significant probative value” (s 98(1)(b), and that its “probative value substantially outweighed any prejudicial effect which it may have had on the respondent” (s 101(2) – that is, the prejudice associated with the risk of the tribunal of fact using the evidence inappropriately: Regina v Lockyer at 460 and Regina v Colby [1999] NSWCCA 261 at para 97). Once these requirements were met then the evidence would be admissible to prove that, “because of the improbability of the events occurring coincidentally,” the respondent did the act alleged in any given count and/or that he had the particular state of mind alleged in relation to it, for example to rebut any defence of accident (Thompson v The Queen (1989) 169 CLR 1).

27 In Pfennig it was held that it was not necessary, under this provision, to speak in terms of a “striking similarity”, or “underlying unity” or other similar description previously employed in decisions depending upon the admissibility of similar fact evidence at common law, the test being one of substantial and relevant similarity.

28 However, for all practical purposes, questions of admissibility under this heading are likely to be determined by similar considerations to those applied at common law, in that it would be necessary to show that:

(a) the existence of the related acts was not open to an innocent explanation such as mere coincidence;

(b) there was no reasonable possibility of the evidence being concocted: Regina v ACK , NSWCCA 22 April 1996; and

(c) the objective improbability of the evidence having an innocent explanation was such that there was no reasonable view of it other than as supporting an inference that the accused was guilty of the relevant act charged ( Pfennig ).

29 Residual questions would similarly arise for consideration in relation to ss 135 and 137 of the Evidence Act.

30 Although somewhat scant consideration was given, in the reasons for judgment, as to whether the evidence of the complainants qualified as tendency evidence, or as coincidence evidence, the focus of attention having been on the issue of concoction, there is nothing in the reasons for judgment to suggest that Hock J misunderstood the relevant principles, or to suggest that she failed to give consideration to the provisions embodied in s 97(2)(b), s 98(1)(b), s 101(2), or s 137.

31 A consideration of the application of these principles to the present case requires a brief mention of the evidence which the various complainants could give, as drawn from their statements and from the evidence given on the voir dire:

(a) SAL
(i) In 1980 SAL was aged 13 years, and was a student of the respondent for gymnastics at the school where the latter taught, and where the other complainants were students.

(ii) Early in that year (when he was in Year 8) SAL was called by the respondent to the sports room at the school.

(iii) Once there, the respondent offered to show SAL “ a trick ” and asked him to lock his hands behind his back, whereupon the respondent walked behind him, held his hands firmly with his left hand, placed his right hand inside his trousers and underpants and fondled his penis.

(iv) SAL made an oblique reference to this event in a conversation with his mother during his final year at school in about 1985, and informed his wife of what had occurred in 1991.

(v) After reading the article in the local newspaper of 15 September 1998, which had mentioned that the respondent had been charged with other offences, SAL went to the police himself.

(vi) SAL recalled that the respondent used to watch boys, including himself, showering naked after sports activities.

(vii) SAL had not known any of the other complainants before speaking to the police, and had not spoken to any other boys about he respondent’s behaviour.

(b) MHS

(i) In 1984, MHS was aged 12 to 13 years, and was also a student of the respondent at gymnastics, at the same school as the other complainants.

(ii) MHS had been the victim of bullying, and had received help from the respondent, with whom he discussed his problems, in the respondent’s office next to the gymnasium – discussions which at times turned to sexual matters.

(iii) Midway through 1984, in the course of one such discussion in the respondent’s office (when MHS was in Year 7), the respondent placed his right hand inside MHS’s pants and played with his penis inside his underwear.

(iv) The respondent touched MHS in this way on a number of subsequent occasions while he was in Year 7.

(v) MHS recalled that the respondent used to watch boys, including himself, showering naked after sports activities, and also recalled being slapped by him on the backside.

(vi) In 1986 MHS told his brother of the incident, and a short time later also mentioned it to his parents.

(vii) MHS spoke to police about it in late 1997 and in April 1998 made a statement.

(viii) When MHS was in Year 7, he had heard boys in Year 10 saying the respondent was a bit dodgy: and in Year 8 he had heard some conversation between boys in relation to the respondent’s presence in the shower block.

(ix) MHS did not know any of the other complainants at the time when he first made a complaint.

(x) MHS had spoken to another former pupil MB about the matter shortly after going to the police, and had been informed by MB that it might be worth speaking to JPMcF as he had been heavily involved in the gymnasium.

(xi) MHS had not however spoken to JPMcF himself.

(c) JPMcF

(i) In 1985, JPMcF was aged 12 years, and was a student of the respondent in gymnastics, at the same school as the other complainants.

(ii) In 1984 or 1985 (Year 7 or 8) JPMcF was disciplined for the possession of some pornographic magazines, after which he was spoken to by the respondent in relation to that material and in relation to sexual matters of a wider and more intrusive kind.

(iii) In 1985 the respondent touched JPMcF on the crotch outside his clothing, on several occasions, while supporting or assisting him as he worked out in the gymnasium on parallel bars, or as he did somersaults.

(iv) From time to time in 1985/1986 the respondent followed JPMcF into the storeroom of the gymnasium of a stadium outside the school where he conducted extra gymnastic tuition. On several occasions in that room he placed his hand inside the clothing of JPMcF and fondled his penis.

(v) JPMcF was informed by GDB that he had been indecently touched by the respondent.

(vi) JPMCF was approached by police in July 1998, at which time he informed them of what had happened to him.

(vii) JPMcF had not spoken to SAL or MHS about the matter, nor had he spoken to the other former student MB (to whom MHS had spoken).

(viii) JPMcF had worked for the respondent, for about 8 years, as a gymnastics coach or assistant in the private business of the latter, after he had left school, but gave up that position when learning that other boys may have been assaulted by him.

(d) GDG

(i) In 1991, GDG was aged 14 years and was a student of the respondent in gymnastics at the same school as the other complainants.

(ii) In that year, GDG was working out on a high bar in the gymnasium in a hall adjoining the school, which was also used by the respondent, in an exercise which required his hands to be secured by safety straps. While engaged in this exercise the respondent put his hand on GDG’s penis, from outside his clothing, and squeezed it two or three times.

(iii) GDG was very angry and ran out of the hall; on seeing JPMcF who was working as an assistant coach, he informed him of what had occurred. JPMcF indicated that there had been other similar incidents.

(iv) On the night of this occurrence, GDG informed his parents of what had happened, and they indicated that they would speak to the Principal.

(v) GDG recalled that the respondent used to watch boys, including himself, showering while naked. On occasions, he said, he was asked by the respondent to pick up a bar of soap from the floor, and was slapped on the backside by him.

(vi) GDG had experienced some disciplinary problems at school, and had discussion with the respondent concerning them.

(vii) In 1998, GDG was shown the newspaper article in the local paper by his mother, and indicated that he would speak to police.

(viii) Later that year, at a time when he was being spoken to by police in relation to some misconduct (not of a sexual nature) of his own, he made mention of them using their time to search for paedophiles, such as the respondent whom he named.

(ix) He followed up this mention by providing a statement to police in January 1999.

(x) GDG had not known any of the other complainants save for JPMcF, and had not spoken to the latter between the time of the incident involving himself, and speaking to police.

32 Of some relevance for the issue which arose, particularly under the heading of coincidence, is the evidence, which it is anticipated, would be given by the mother of GDG, in relation to a meeting between her husband and herself with the school principal and the respondent, on the day after the complaint. When informed of the matter of concern, she said, in her statement, that the respondent indicated that sometimes he had to touch the bodies of the boys during exercises, and that he was a “hands on” person. From this material, and from the evidence given in the first trial, it might reasonably be expected that a “defence” or issue of accidental touching might well arise.

33 Additionally of relevance, in relation to the possibility of concoction is the fact that the complainants were of different ages, had been in different classes at school, and had no reason to socialize together or to share friends. The position may be summarised as follows:

Complainant	Date of Birth	Year 7 Starting Date	Date of alleged offence	Date of statements to police
SAL	24 August 1966	1979	March 1980	22 September 1998
MHS	26 August 1971	1984	Mid 1984	27 April 1998
JPMcF	23 March 1973	1985	1985/1986	15 July 1998
GDG	30 January 1977	1990	1991	13 January 1999

34 Of some relevance additionally was the evidence which the other pupil, MB, gave to the effect that MHS had spoken to him before the newspaper article, asking whether he knew of anyone else who had been assaulted by the respondent, to which he replied that he did not, but suggested that it would be worth getting into contact with JPMcF, because he had spent a lot of time in the respondent’s office. As emerged from the evidence of former Detective Sergent Spence, he had approached JPMcF after he had been given his name by MHS.

35 It was also established that the complainant MSF, in the trial which had resulted in a directed acquittal, had made complaints to other children (who were older than the present complainants) about the conduct of the respondent during 1977, had left the school in 1980, and had been born on 27 March 1963 (or possibly 1965 - the transcript being somewhat equivocal in this regard).

36 A starting point for consideration of the question which arises is the proposition well established on the authorities, that sexual offences should not be tried together unless the evidence on one count is properly admissible to prove another: Sutton v The Queen (1984) 152 CLR 528 and De Jesus v The Queen (1986) 61 ALJR 1.

37 That principle needs to be understood in the light of the further proposition that in order for the evidence to be admissible, it must be shown first to be relevant to a fact in issue (Smith v The Queen (2001) 75 ALJR 1398), secondly to conform with the requirements of ss 97 and 98 of the Evidence Act, and thirdly not be such as to warrant exclusion under sections 101, 135 or 137 of the Evidence Act.

38 In relation to relevance, Mr Byrne SC accepted that the question whether evidence that a school teacher had committed a sexual assault upon one student could rationally affect the assessment of the probability that he had committed a sexual assault upon another student, depended on the circumstances. That was, in my view, a correct concession. I do not however accept the associated submission that the facts in this case required that question to be answered in the negative.

39 Where, as here, there was evidence as to the differences in ages and classes of the complainants, as to the fact that with one exception they had not known or spoken to one another, and where there was an absence of evidence suggesting shared or common knowledge of the respondent’s suggested tendency or propensity towards young pupils, the evidence in my view did have a clear relevance for the reason noted by Gleeson CJ in Regina v ACK, NSWCCA 22 April 1996 at page 5, and within the meaning of the Evidence Act (s 55) as rationally affecting the assessment of the probability of the fact in issue: see Regina v AH (1997) 42 NSWLR 702 at 709. The mere possibility of gossip occurring among school boys was insufficient to require any different conclusion. Moreover, as Gaudron J observed in BRS v The Queen (1997) 191 CLR 275 at 299, evidence of conduct on other occasions can have special probative force in relation to the possibility of any one complainant concocting his or her account if there are particular, (or, I would add, common) features which render it improbable that two or more persons would give such accounts if the conduct alleged had not, in fact, occurred.

40 The next question for determination is whether there was a sufficient similarity in the conduct alleged, and in the circumstances in which it occurred, so as to be capable of showing that:

(a) the respondent had a tendency to touch or fondle the penises of young boys in their first or second years of high school, with the state of mind that would convert such a non-consensual act into one amounting at law to an indecent assault; and/or

(b) the improbability of the events described occurring as a matter of coincidence or chance was such that the individual acts, which were alleged by each complainant, had occurred in fact and with the state of mind required at law for an indecent assault.

41 In this regard the Crown asserted that the various similarities which her Honour had identified, by reference to paragraphs (a) to (p) of the submissions presented to Judge Hock, did have this quality. Additionally it asserted that they revealed a modus operandi involving conduct directed toward young boys at the school where he taught, who had a vulnerability, who had come into the respondent’s reach as his students, and who were indecently assaulted by him within the facilities available to him, either at the school, or at the adjoining premises which he used for his gymnastic teaching activities: Gipp v The Queen (1998) 194 CLR 106 at 112 per Gaudron J, and 134 per McHugh and Hayne JJ; and Regina v Colby [1999] NSWCCA 261, at para 93.

42 Mr Byrne SC however, submitted that the similarities which were relied upon by the Crown, going both to the acts and the circumstances in which they were said to have occurred, were artificial. In essence this relied upon the proposition that there are only a limited number of ways in which a boy can be indecently assaulted, and that as a result there is no significant similarity in the fact that each complainant said that he had been touched on the penis, inside or outside their clothing, or that it had occurred in one or other of the rooms used by the respondent in the course of his duties as a teacher in gymnastics.

43 Reference was made to the decision in Regina v T, where the decision of the trial judge was:

(a) affirmed in relation to the four children who alleged that the accused had brought his penis into contact with them while they were sitting on the floor reading;

(b) reversed in relation to the other two complainants, one of whom said that his penis had been touched after he was instructed to lower his pants so that he could be examined for spots; and the other of whom said that his penis had been touched while he was sitting on the lap of the accused.

44 Lee CJ at CL said (at p 6) that the incidents in this second group lacked “the essential probative impact which was necessary”, observing that “they amount, in my view, to no more than a description of two different incidents in both of which the appellant touched a boy on the penis. It may have been different if there had been several such incidents for the question of whether there are similar facts is in many respects one of degree” (Emphasis added).

45 The final sentence in this passage is of importance, and in my view carries the day for the Crown in this case. While there are some individual differences in detail, it does not seem to me to matter whether the incident alleged occurred in the same room or in one of the several rooms used by the respondent. Substantially they were similar locations being his place of work in connection with his teaching activities.

46 Moreover, I do not consider it fatal that not all of the acts alleged occurred during a gymnastic exercise, as distinct from arising in the course of the boys being in the immediate control of the respondent in connection which his teaching duties. While this fact caused me to reflect carefully on this aspect of the case, the number and coincidences of the acts and dealings otherwise alleged satisfies me that this case falls on the other side of the line to that examined in relation to the second group of cases in Regina v T.

47 Subject to any question of concoction, the relevance requirement for admissibility was clearly established. I see no room for error in her Honour’s findings that the evidence was relevant to the fact in issue in relation to each complainant; that it had a probative value of significance or importance; and that such probative value was of sufficient weight to outweigh any prejudicial effect which it may have had on the respondent. In that regard it had a particular relevance in relation to the question whether the touching had been accidental or deliberate, and whether it was of a sexual nature or one occurring in the proper discharge of the duties of a gymnastic instructor supervising exercises of boys in circumstances which can lead to injuries: Lockyer at 459.

48 The remaining issue concerns that of concoction, that is, whether there was a “real chance” or a “real danger” of that providing an explanation for the coincidence of accounts of any one or more of the complainants (per Brennan and Dawson JJ in Hoch at 299, 300 and 302) or whether a coincidence of account was “reasonably explicable” on the basis, for example, that there was a sufficient relationship between the complainants or an opportunity or motive for concoction (per Mason CJ, Wilson and Gaudron JJ at 297). The relevant test which was proposed in Regina v Colby calls for the identification of a “reasonable possibility as distinct from a speculative or conjectural one”; and it was a test where the onus rested upon the Crown, to negative that possibility: Regina v OGD (No 2) at p 447.

49 I am unable to see any error in relation to her Honour’s assessment of this aspect of the case. Having regard to the absence of contact between GDB, MHS and SAL, the differences in their ages, and the classes which they attended, as well as the sequence of disclosure by them, I am unable to see that there is any reasonable possibility of concoction. The suggestion that there may have been gossip which they could not recall, was somewhat thin and largely a matter of conjecture or speculation and each had made a first complaint before the newspaper article was published. Moreover, there was no basis in the evidence, presented during the voir dire inquiry, to suggest that any one of them had a financial motive, or a grudge against the school or the respondent, or any antipathy to the latter before the events alleged. Any resentment or anger on their part subsequently, attributable to the act alleged, would be understandable and would not provide any basis for assuming concoction. To so suggest would be circular.

50 The present case is accordingly not of the genus noted by Gaudron J in BRS v The Queen (1997) at 300–301 involving concoction where a complainant has possibly manufactured an account after becoming aware of a like event or like allegation involving the accused or has been infected by discussions by others concerning him – per Lee CJ at CL in Regina v T at p 4. Nor is it a case where there was any evidence of joint concoction.

51 Mr Byrne SC however, sought to make some capital out of the evidence, from the mother of SAL, to the effect that she recalled friends talking about the respondent “indecently touching kids at school”, at some time while she thought he was in Year 11 at another school. SAL had no recollection of any such conversation, and found it hard to believe, although there was evidence to the effect that he had told his mother in 1984 that the respondent was a paedophile, without going into any further detail. Additionally, there was evidence that, before this conversation, that is on the day following the alleged assault, SAL had returned home from school with wet trousers because he had taken to showering in his underpants to avoid the attention of F in the shower block – an event partially corroborating his evidence.

52 He similarly sought to make capital out of MHS’ recollection of overhearing Year 10 boys referring to the respondent as “a bit dodgy” – although there was no suggestion put to him that, he had attached any particular sexual connotation to that comment.

53 It is true that neither of these matters was mentioned by her Honour. However, when considered in their full context, and in particular absent any greater specificity in the suggested “gossip” I am not persuaded that they justify any different conclusion from that which she reached.

54 In relation to JPMcF, there was the fact of the earlier disclosure by GDB to him, and there was additionally the fact that his first complaint followed the newspaper article. There was no specific suggestion of antipathy or annoyance on his part beyond any resentment arising out of the acts alleged, particularly in circumstances where he had worked for the respondent for some years following the events alleged. However, as her Honour found, the other circumstances mentioned did give rise to a reasonable possibility of concoction on his part. I am not persuaded that error was shown in this regard.

ORDERS

55 It would follow from the foregoing that the admissibility ruling has not been shown to have been erroneous, with the consequences which I have mentioned in relation to the course which the trial of the respondent should follow. I would propose the following orders:

1. Crown appeal dismissed.

2. Leave to appeal granted to respondent, but appeal dismissed.

56 BELL J: I have read the draft judgment of Wood CJ at CL. I agree with the orders proposed for the reasons which his Honour gives.

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