R v Godden - [2020] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GODDEN
[2020] SADC 122
Ruling of her Honour Judge Fuller
4 September 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINDER OF COUNTS AND DEFENDANTS
The accused is charged with ten sexual offences against two child complainants - application to sever the charges to allow for a separate trial for each complainant - whether evidence cross-admissible as discreditable conduct evidence on the basis of similarity of account, a Nieterink use and propensity.
Held: The evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P(2)(a) or (b) of the Evidence Act 1929 (SA).
Application allowed. Order for severance of counts requiring separate trials for each complainant.
Criminal Procedure Act 1921 (SA) ss 102(b), 106; Evidence Act 1929 (SA) ss 34P, 34P(2)(a); District Court Criminal Rules 2014 (SA) Rule 49(1)(e), referred to.
R v Maiolo (No 2) [2013] SASCFC 36; R v M JJ; R v C, JN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v C, CA [2013] SASCFC 137; R v N, BB (No 2) [2020] ACTSC 85; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1, considered.

R v GODDEN
[2020] SADC 122

Phillip Donald Godden is charged on one Information with ten sexual offences against two children, HC and AM. The alleged offences against HC occurred between 1 January 2013 and 31 August 2013. The alleged offences against AM occurred between 1 January 2018 and 5 September 2018.
In respect of HC, the accused is alleged to have committed the following offences:
·Three counts of indecent assault particularised as the touching of HC’s breast(s) on two separate occasions and on a third occasion grabbing her tracksuit pants and trying to pull them down while lying on top of her.
·One count of unlawful sexual intercourse particularised as the accused inserting his fingers into HC’s labia majora.
In respect of AM, the accused is alleged to have committed the following offences:
·One count of maintaining an unlawful sexual relationship with AM particularised as the accused touching her breasts on more than one occasion, touching her vagina on more than one occasion and inserting his fingers into her labia majora.
·In the alternative to the charge of maintaining an unlawful sexual relationship, three counts of aggravated indecent assault particularised as the accused touching AM’s breasts and vagina and one count of unlawful sexual intercourse in which the accused inserted his fingers in AM’s labia majora.
On 4 June 2020, the accused made application pursuant to Rule 49 (1) (e) District Court Rules 2014 for a separate trial of the counts alleging the commission of offences against AM.
The joinder of the charges is authorised by s 102 (6)(b) Criminal Procedure Act 1921 (SA). That section provides: -
(6) Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
The discretion to order a separate trial of a count relating to a particular complainant is only to be exercised where the evidence in relation to that count is not cross-admissible. That discretion is to be exercised judicially. In R v N, SH[1] the Court said of the earlier equivalent of s 102 (6) (b):
In our view, the amendment of s 278 by the insertion of subsection (2a) does not alter the general proposition that if the evidence on one count is not admissible on the other count or counts, the Court will usually exercise its discretion to order separate trials, particularly in sexual cases. The section limits the Court in deciding the cross admissibility of the evidence but upon the Court determining the evidence is not cross admissible the Judge, in exercising his or her discretion, must have regard to the principles in Sutton and De Jesus.[2]
[1] [2010] SASCFC 74.
[2] At [44].
Discreditable Conduct
Evidence that a person has committed sexual offences other than the charged offence is evidence of ‘discreditable conduct’. The admissibility of this evidence is governed by s 34P of the Evidence Act 1929 (SA).
Section 34P provides:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
The prosecution argues that the evidence of one complainant is admissible in relation to the other complainant on three bases:
·The evidence of each complainant is necessary to provide the full picture of the alleged offending, allowing the trier of fact to have a complete and proper understanding as to how the offending unfolded and continued (“the Nieterink[3] use”).
·The evidence establishes the improbability of the acts occurring other than as alleged by the prosecution (“similarity of account”).
·The evidence in respect of each complainant demonstrates that the accused had a particular propensity to commit sexual offences against pubescent girls under his supervision, notwithstanding his familial connection with the young girl and despite the risk of detection.[4] (“the propensity use”).[5]
[3]     R v Nieterink (1999) 76 SASR 465.
[4]     In the prosecution’s written submissions, it was said that the accused had a particular propensity to commit sexual offences against young girls around the ages of 11-14. In oral submissions, this was recast as a propensity to commit sexual offences against pubescent girls.
[5]    Prosecution written submissions, [62].
Non propensity use
The prosecution submits that the evidence of each complainant is admissible and can be used in the consideration of the charges in relation to the other complainant in the following ways:
(a)The evidence demonstrates why the accused was emboldened to commit escalating offences within the environment of the family home, and also outside of the family home (and was so emboldened as to commit counts 8 and 9 at the beach).
(b)The fact that neither complainant complained of the offending makes it more explicable that the accused would continue to offend against each complainant over an extended period of time (especially the fact that HC did not complain to her mother until after AM had complained).
(c)The evidence demonstrates the nature of the relationship between the defendant and each of the complainants, and more broadly, the dynamic between the complainants and the rest of the family. This evidence is necessary to explain and provide the context in which the charged acts occurred.[6]
[6] Prosecution written submissions, [64].
The prosecution contends that the evidence of the entirety of the accused’s interactions with each of the complainants should be before the jury in order for it to be in a position to properly assess the truthfulness and reliability of each complainant’s evidence.
In R v M, JJ; R v C, JN,[7] Kourakis CJ set out the process by which the probative value of the evidence is weighed:
The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as “context”, “background” and “underling unity” will seldom illuminate the analysis.
[7] (2013) 117 SASR 81.
The prosecution also contends that the similarities between the accounts of the two complainants demonstrates the improbability that the conduct alleged was concocted or imagined by each of them independently of each other, or that it was innocent or accidental. The following shared features of the accounts of the two complainants were relied upon in support of this contention:
(a)The age and gender of the complainants.
(b)The fact both are related to the accused.
(c)The modus operandi described by each complainant in relation to the accused’s acts of forcing himself upon them. Both describe the accused’s use of force and his apparent superior strength.
(d)The location of the alleged offending, with all counts except for counts 8 and 9 occurring within various areas of the accused’s family home, usually the lounge room.
(e)The fact that in each case there was a high risk of detection, particularly when the defendant’s children were home, and also at the beach.[8]
[8] Prosecution written submissions, [68].
In R v C, CA[9] Kourakis CJ described similarity of account as the clearest basis for the cross-admissibility of evidence of offending against each complainant:
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury.
The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
[9] [2013] SASCFC 137.
In Des v The Queen,[10] Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Further, the focus must be upon similarity (or dissimilarity) that bears upon the improbability of fabrication, coincidence or collusion.[11] In Des v The Queen, Doyle J identified the several significant similarities between the allegations of the three complainants. The allegations each involved the appellant sexually abusing a young niece by entering their bedroom late at night whilst asleep; often involved the appellant getting into bed with the relevant complainant and touching her vagina; on most occasions this occurred when he was babysitting or his mother was babysitting and he smelt of beer or alcohol; the offending was brazen and opportunistic. Doyle J described the issue as ‘relatively finely balanced’ but was satisfied that the trial Judge was correct to accept that the evidence of the three complainants was cross-admissible under s 34P (2)(a) of the Evidence Act on a similarity of account basis.
[10] [2020] SASCFC 32.
[11] At [70].
Livesey J agreed with Doyle J that the issue was ‘finely balanced’:
As it was put by counsel for the appellant, on one view the problem was that the evidence of the complainants “was no more than the evidence which would almost always present itself when a male is accused of sexually abusing a female”.
Whilst that may be a relevant consideration when determining admissibility, it is ultimately resolved by a decision by the trial Judge about the extent to which the degrees of similarity of account bear on the improbability of independent fabrication or coincidence. This, together with whether the permissible and impermissible uses can be kept sufficiently separate and distinct so as to remove the risk of impermissible use, will determine cross admissibility.
…Whilst it was not beyond argument, the evidence in this case was not merely that which “would always present itself” in cases of sexual abuse by a male of a female.[12]
[12] At [158]–[159].
I have a discretion to admit the evidence for non-propensity purposes if I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and that this use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[13]
[13] Section 34P (3).
In R v Maiolo (No 2)[14] Peek J said:
…the combined effect of ss 34P(2)(a) and 34P(3) is to require, for evidence of discreditable conduct to be admissible, that it must have a degree of probative value which substantially outweighs any prejudicial effect it may have on the defendant and, in assessing the possibility of prejudicial effect (and hence the question of whether the possibility is substantially outweighed) the Judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose (i.e. of impermissible use)
[14] (2013) 117 SASR 1 at [54].
Propensity use
The prosecution contends that ‘the evidence of each act of sexual misconduct against a particular complainant stands as circumstantial evidence which demonstrates a specific sexual attraction to that complainant and a tendency for the accused to act in furtherance of that sexual attraction’.[15] The accused does not challenge the use of the evidence as propensity evidence in respect of the individual complainant. In other words, the accused does not challenge the cross-admissibility of the evidence on counts 1-4 and, separately, the cross-admissibility of the evidence on counts 6-10. However, the prosecution further contends that ‘the evidence also shows the [accused] to have a particular propensity to engage in the conduct described by the complainants’ and that the accused had a ‘particular propensity to commit sexual offences against pubescent girls under his supervision, notwithstanding his familial connection with the young girl and despite the risk of detection.’
[15] Amended Notice of Intention by Director to Adduce Discreditable Conduct Evidence dated 10 June 2020.
The evidence
The accused is married to JG. They have four children together, F, C, W and J. JG’s sister is HM. AM is HM’s daughter and is the niece of the accused. AM was born on 13 November 2006.
HC’s mother is DN who is the sister of JG’s mother, SM. HC is the accused’s cousin. HC was born on 15 January 1999. She has a younger brother and sister.
The alleged offending against HC
It is the prosecution case that the accused sexually abused HC on about four occasions in 2013 when she was 14 years old. She was in year 9.[16] The abuse is alleged to have occurred at the accused’s family home in Blewett Springs. HC and her mother lived at Aldinga, but HC’s mother worked in Adelaide. HC would catch the bus home from school to the accused’s house and would wait there until 6.30pm when her mother would pick her up.
[16] In her affidavit dated 5 January 2019, HC said that she was going into year 11 at Willunga High School in 2015.

HC said that she started going to the accused’s house at Blewett Springs when she started going to high school.[17] She caught the bus from Willunga High School to the accused’s house every afternoon after she finished school and the accused’s daughters F and C, who went to McLaren Flat Primary School, were on the bus with her most of the time. She would sometimes go over to the accused’s house during school holidays.
[17] It is not entirely clear what year HC started at Willunga High but if it was year 8 then she had been going to the accused’s house since 2012.
HC said that sometimes JG would be home, but on occasion she and the accused would be home alone because “[JG] would take the kids somewhere and I would be left by myself”.[18] She described the accused as starting to ‘pester’ her and sitting next to her on the couch and trying to take her iPod away from her. She found this annoying and had seen him ‘mucking around’ with her cousins and JG and his own children. In a later statement HC said that there were a couple of times when the accused was grappling with her on the lounge and he would put her hand on his throat from behind and apply pressure so that she struggled to breathe. These incidents occurred prior to any sexual abuse.[19]
[18] Affidavit of HC, dated 5 January 2019, paragraph 5.
[19] Affidavit of HC, 23 April 2019, paragraphs 4-5.
Count 1
HC said that the first incident she can remember took place in the lounge room when she was home alone with the accused. She ‘believed’ that JG was out with the children. She was wearing her school uniform but with track suit pants on her bottom half. She was sitting on the couch and the accused came and sat next to her and grabbed her iPod and took it away from her. He leaned over her and she felt as if she was being pinned to the couch. She tried to grab her iPod from him, but he reached over with his right hand and put it down the front of her T-shirt and started touching her left breast inside of her T-shirt and bra. She felt uncomfortable and angry. She took her iPod from him and he left her alone.
Count 2
HC recalled another occasion when the accused grabbed her on the right breast quite hard and it was painful. She said it ‘would likely have occurred after school, but I can’t remember exactly when it happened’.[20] She was in the lounge room at the time. She said that there were a few times when the accused grabbed her on the breasts and ‘the circumstances of how this occurred were always similar to the ones that I have described’.[21] HC does not provide any more detail about the whereabouts of anyone else in the house at this time.
[20] Affidavit of HC, dated 5 January 2019, paragraph 7.
[21] Affidavit dated 5 January 2019, paragraph 7.
Count 3
HC said that W and J were at home when another incident with the accused occurred. She was in the theatre lounge area of the house on her iPod. She did not normally spend time in that room but was there because the boys were there. The accused came in and put her off balance with one of his feet or legs while she was standing and then grabbed her as she fell. She fell onto her side and as she was trying to get up the accused was lying on top of her as she lay on her stomach on the carpet. She could feel something hard pressing up against her bottom and she believed it was his penis. She had her iPod in her hand and, at some point, sent a FB message to her friend JC saying something like ‘help’. She said the accused reached in with one of his hands underneath the waistband of her school trackpants and inside her underwear and touched her vagina with his fingers near her urethra. She struggled and squirmed and he was laughing or giggling in a mocking way. She asked W and J to get their father off her, but they did not help. At some point the accused climbed off her and she cannot remember anything else happening. She went back to the lounge. This incident happened after the accused started touching her breasts.
Count 4
One of the last incidents that HC recalled involved the accused picking her up and carrying her to his bedroom. She had been sitting on the lounge in the lounge room on her iPod or laptop or portable DVD player. She could not recall exactly what happened, but said the accused picked her up, put her over one of his shoulders and took her to his bedroom where he threw her down on the bed on her back. He lay on her, but did not have his weight on her. She tried to get out from underneath him and crossed her legs over because she thought he was going to rape her. He grabbed at her track pants and tried to pull them down. She struggled and pushed him with her hands to his shoulders and tried to kick him. He said something like, ‘what’s the matter’ and she said something like, ‘it’s not right’. He was unable to move her pants much at all because she was fighting with him. She could not remember how it stopped but eventually he backed off and got out of the room and she went back to the lounge room curled up with her iPod. She could not recall if anyone else was at home when this happened. She could not remember anything that happened after that. She did not say anything to her mother because she did not know how she would react and how it would affect their families.
HC thought that this was one of the last things to have happened, and that all of the incidents with the accused occurred between the end of January 2013 and August 2013. After this, she told her mother that she did not want to go to the accused’s house after school because she was not getting along with his daughter, F. HC told her mother about the alleged offending in December 2018 after her mother told her that the accused had been ‘charged with paedophilia’.
The alleged offending against AM
AM was born on 13 November 2006.
AM’s mother, HM, said that since 2012, during school holidays, AM began spending time with the accused and JG at their home at Blewett Springs. The accused and JG then moved to a house at McLaren Flat for about a year and then moved to Willunga in December 2015. AM did not like going to after school care so during holidays she would frequently stay with JG and the accused. HM would drop off AM anywhere between 6.30am-7.00am and would often see the accused and occasionally JG or the two boys W and J. If no one was awake when she dropped AM off, AM would take her mobile telephone and lie on the lounge in the front lounge room. When AM stayed overnight, she would sleep in C’s room. When she was not sleeping over, HM would collect her between 6.00pm and 8.00pm. HM said that AM was about ten years of age when she began to go through puberty and had started to develop breasts by the time she was 11 years old. She had her first period when she was 12.[22] There are three photographs of AM, taken on 5 October 2017 (aged 10), 21 July 2018 (aged 11) and 22 August 2018 (aged 11). AM’s physical features and state of development look the same in each photograph and in the 5 October 2017 photograph she is wearing a grey crop top which can also be seen in the July 2018 photograph.
[22] Statement of M, 7 July 2020 paragraph 6.
AM was interviewed by police on 25 September 2018.
Count 10
AM said that the last time that something happened was about four or five months before the police interview. She was sitting on a couch at the accused’s house and it was early in the morning. She had slept over the night before.[23] The accused came up behind her, which he normally did when she was alone, and would then tickle her to get her off the couch, and he would then sit down and pull her back. On this occasion he put his hands down her top and touched her ‘boobs’ and put his hand down her pants and touched ‘private areas that shouldn’t be touched’. Whenever she tried to call out for help he would cover her mouth and ‘it felt like a kidnapping situation and I was really scared’.[24] Whenever she tried to pull his hands away he would grab her by the wrist and squeeze it really tightly. AM said that on this last occasion the accused tickled her to get her off the couch, sat down and then pulled her back and then started moving his hand near her leg and started pulling down her shirt and pants. She told him to stop but he would not listen. He put his hands ‘down there’ and touched her in the ‘private area’. She said he put his fingers ‘up that area’ and stuck his fingers in the ‘opening of that area’. She said he touched her ‘wee kind of part’ and ‘around that and near the outside as well’. He used two fingers to play with the ‘pee part’ of her vagina. She tried to call out really loudly, but he was covering her mouth. She tried to pull his hands away, but he grabbed her wrist and squeezed her bones and her wrists really started to hurt. Her cousins then woke up and ‘he just went away and went to work’.[25]
[23] Page 23, Interview of AM by B/Sgt Attard 25 September 2018.
[24] Page 7, Interview of AM by B/Sgt Attard 25 September 2018.
[25] Page 10, 12, 13 Interview of AM by B/Sgt Attard 25 September 2018.
Counts 6 and 7
The first incident occurred around February 2018[26] when AM was sitting on the couch on her phone playing games or watching You Tube. The accused was getting ready for work and he sat next to her and pulled her towards him by grabbing her arm and started touching her breast and vagina area. His hands were on her breasts and ‘going around them’ under her T-shirt but over her crop top. He then moved down to her vagina area and ‘went through into my pants but didn’t go past the underwear’.[27] The accused kept saying ‘do you like it’ and ‘is that okay’ and she said ‘it is not okay why would you think it’s okay’. She called out for her cousins and they got up from what they were doing and came over ‘and that is when he could hear them and that’s when he got up and started getting ready for work like everything was okay’.[28]
[26] Page 29, Interview of AM by B/Sgt Attard 25 September 2018.
[27] Page 16, Interview of AM by B/Sgt Attard 25 September 2018.
[28] Page 17, Interview of AM by B/Sgt Attard 25 September 2018.
In between the first and the last incident, AM said there were two or three other incidents.
Counts 8 and 9
AM described an occasion when she was at the beach around Easter time with the accused because they were looking for her cousins C and W who had gone missing at the beach. AM said she had been walking for 15 minutes and she was getting tired and they rested on a sand dune and ‘we sat down and that’s when he, he only ever touched them areas and he was just doing what he did the first time again’.[29] He moved closer to her and put his hand outside her bra and squeezed her breast and then moved over to her vagina on the outside of her underwear and started touching there. She said ‘why are you doing it again? Like you know I don’t like it. Like leave me alone’.[30] She pulled his hand away and he grabbed her wrist and she ripped it away and started walking off and left him there. She retraced her steps and when she got back, she discovered her cousins had been found. The people present that day were her four cousins, the accused, AM’s mother, her nanna and her fiancé and her aunty JG.
[29] Page 17, Interview of AM by B/Sgt Attard 25 September 2018.
[30] Page 18 Interview of AM by B/Sgt Attard 25 September 2018.
AM said there was another time at the house that was ‘just like the first time’ but did not provide any further detail.[31]
[31] Page 22, Interview of AM by B/Sgt Attard 25 September 2018.
The first person AM told was her best friend AC. No statement has been taken from AC as the investigator has not located her and she is believed to be living overseas.
AM described the accused as ‘very playful and quite annoying’, ‘he would like pull you upside down and like shake you around and be really silly…he was like a child basically’[32]. AM said ‘he would like play fight with you a lot…tackle and trap…all the kids would try to escape from him’.[33]
[32] Page 24, Interview of AM by B/Sgt Attard 25 September 2018.
[33] Page 25, Interview of AM by B/Sgt Attard 25 September 2018.
Count 5
The prosecution case is that the accused sexually abused AM on at least four occasions in 2018 by touching her on the breasts and vagina and inserting his fingers in her labia majora. AM was 11 years old at this time and the niece of the accused.
Similarity of account
In determining whether the evidence of each complainant is cross-admissible under s 34P (2)(a) on the basis of similarity of account, the focus must be upon the degree of similarity between the complainants’ allegations of abuse in so far as that similarity, or dissimilarity, bears upon the improbability of fabrication, coincidence or collusion.
The similarities and dissimilarities between the allegations of both complainants are as follows: -
1.The offending occurred when each complainant was at the accused’s house pursuant to an arrangement between each complainant’s mother and the accused and his wife whereby the accused and/or his wife would look after each complainant for a specified period. In the case of HC, it was after school care until her mother could pick her up and in the case of AM it was during school holidays from early morning until evening and on some occasions AM would sleep over and be collected the next evening.
2.There was a familial relationship between the accused and AM and HC; HC was a cousin and AM a niece.
3.The conduct alleged by HC and AM involved the touching of the breasts and the vagina. In respect of HC the first two occasions involved only the touching of her breasts underneath her T-shirt and bra, the third occasion involved him putting his fingers inside her labia majora and the fourth occasion involved the accused lying on top of her trying to pull her pants down. However, in relation to AM the first two occasions involved the touching of the breasts and her vagina area over her bra or crop top and over her underwear[34] but on the third occasion AM alleges that after the accused touched her breasts (but does not specify if this was over or under her bra/crop top) he touched her in the area of her labia majora. There is no allegation that the accused arranged or facilitated or engineered HC or AM’s attendance at his house and there is an absence of any evidence of grooming.
4.HC is not alone with the accused in the house on each occasion of offending. She alleges that no one is home on the occasion of count 1; she makes no mention of who is home on the occasion of count 2; the conduct the subject of count 3 occurs in the presence of the accused’s two sons and on the occasion of count 4 the HC could not recall if anyone else was home. Counts 1 and 2 occur in the lounge room, count 3 in the lounge theatre room, and count 4 in the accused’s bedroom.
5.AM is not alone in the house with the accused on any of the occasions of offending that occur in the house. On each of those occasions AM’s cousins (the accused’s children) are in the house and although AM does not mention the accused’s wife, given the time of the day that the offending occurred (very early in the morning) it is open to infer that his wife was at home. AM alleges that she and the accused were alone in sand dunes on the occasion of counts 8 and 9, but it is clear that her cousins and a number of other family members were nearby. Counts 6, 7 and 10 occur while AM is sitting on the couch[35] and counts 8 and 9 at a beach the name of which AM cannot recall.
6.The lead up to each occasion of offending against HC is different. On the first occasion, the accused takes her iPod away from her and pins her to the couch and grabs her breast when she tries to retrieve her iPod. On the second occasion the accused, without warning, simply grabbed her right breast.[36] On the third occasion the accused deliberately tripped up HC and lay on top of her and used that opportunity to touch her vagina in the presence of his two sons. On the fourth occasion, the accused simply picked up HC and carried her to the bedroom, threw her on the bed and lay on top of her. HC alleges that the accused grabbed her by the throat and choked her on a couple of occasions before any offending started.
7.The lead up to each occasion of offending against AM is different (and different from that alleged by HC). On the first occasion, the accused sat next to AM on the couch and pulled her over by the arm.[37] On the occasion of offending at the beach, AM was sitting on a sand dune and the accused moved closer to her and then started touching her. On the final occasion, the accused came up behind AM while she was sitting on the couch and started tickling her. When she got up from the couch, he pulled her back down and started touching her.
8.HC describes only one conversation with the accused during the occasions of the offending. On the last occasion, the accused said to her ‘what’s the matter’ and she said, ‘it’s not right’. AM alleges that on the first occasion the accused asked her if she ‘liked it’ and ‘is that okay’ and she said ‘it is not okay why would you think it’s okay’ and then called out for her cousins. On the occasion at the beach AM alleges that she said to the accused ‘why are you doing it again? Like you know I don’t like it. Like leave me alone’.[38] On the last occasion, AM told the accused to stop but he would not listen.
[34] AM said that there was another occasion when the accused touched her the same way as the first time but this is an uncharged act.
[35] AM does not specify where the couch is located.
[36] HC alleges that there were a few times when the accused did this and the circumstances were always similar.
[37] AM alleges that the accused behaved in the same way on another occasion, not charged.
[38] Page 18 Interview of AM by B/Sgt Attard 25 September 2018.
An analysis of the accounts of the offending given by AM and HC does not permit a finding that there is such a degree of similarity as to bear upon the improbability of concoction, coincidence or collusion. The fact that each complainant has a familial relationship with the accused does not rationally affect the improbability of concoction, coincidence or collusion and the probative value of that fact is further diminished by the 5 year time gap between the offending alleged by each complainant. The offending did not ‘unfold and continue’ as asserted by the prosecution. The evidence of the date of the onset of puberty for AM and the fact that the offending against HC occurred when she was 14, in year 9 and had been attending the accused’s home since she started high school, does not permit the conclusion that the 5 year time gap can be explained by reference to the accused ‘waiting’ until AM hit puberty before sexually abusing her.
The sexual conduct alleged is generic sexual conduct, of the type that is usually reported in sexual offending. In addition, the circumstances surrounding the offending, including location and lead up are varied both intra-complainant and inter-complainant. The generic similarities in the respective accounts of the complainants cannot exclude the hypothesis of independent concoction beyond reasonable doubt. It cannot be said that the accounts of each complainant are ‘very similar’[39]and the dissimilarities, which, in my view, are substantial, lead me to conclude that the evidence has a limited probative force which does not substantially outweigh the prejudicial effect upon the accused.
[39] R v C, CA [ibid] at [58]. Kourakis CJ said that matters said to undermine the reliability and credibility of a complainant ‘are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations.'

The evidence is not cross-admissible as similarity of account evidence.
Nieterink use
The prosecution contends that the evidence of each complainant is necessary to provide the full picture of the alleged offending and enable a proper and complete understanding of how the offending unfolded and continued. It was argued that HC’s failure to complain emboldened the accused to offend against AM. I disagree. The time gap of 5 years tells against that submission. The accused did not ‘continue’ his offending by moving from offending against HC to offending against AM. AM was staying at the accused’s house from 2012 onwards during school holidays and no offending is alleged to have occurred until 2018, two years after AM hit puberty.
HC and AM are not siblings and there is no evidence of the relationship, if any, between them. I do not consider that the failure of HC to complain of his conduct in 2013, or the years that followed, can be used by the jury to reason that the accused was thereby emboldened to offend against a different female relative in 2018.
The evidence is not cross-admissible for a Nieterink use.
Propensity
The prosecution contends that the accused had a particular propensity to commit sexual offences against pubescent girls under his supervision, notwithstanding his familial connection with the young girl and despite the risk of detection. AM was being supervised by the accused from 2012 until 2018. The time gap of 5 years between the offending against HC in 2013 and the offending against AM is said to be explicable by reason of AM’s age and the fact that she was pre-pubescent during this period. The prosecution also appeared to suggest that the accused’s propensity did not extend to his own daughters who were under his supervision between 2013-2018 simply because they were his daughters. I place no weight upon that submission as there is no evidence supporting the contention that a person with a propensity to commit sexual offences against pubescent girls under his supervision, with whom he has a familial connection, is likely to stop short of acting on that sexual interest in respect of his own daughters.
AM’s mother said that AM was about ten years of age when she began to go through puberty. She further asserted that AM had started to develop breasts by the time she was 11 and began wearing a crop top between 9 and 10 years of age. She had her first period at the age of 12. Accordingly, AM was pubescent in 2016 and was developing breasts in 2017 but there is no allegation of offending until 2018.
The propensity alleged is expressed in general terms. Where the propensity evidence relates to sexual misconduct with a person other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together: McPhillamy v The Queen [2018] HCA 52 (“McPhillamy”).
In McPhillamy, the accused was convicted after trial of sexual offences against complainant A, an 11 year old altar boy. The accused was an acolyte at the same church. The offences allegedly occurred between November 1995 and March 1996, when A was 11 years old. At the accused’s trial, the Crown led evidence that in 1985 the accused had committed sexual offences against two 13 year old boys, B and C, who were under his care as an assistant housemaster at a boarding school. The Crown led the evidence to establish that at the time it was alleged that the accused committed the offences against A (1995-1996), he had a tendency to be sexually attracted to young teenage males, and to act upon that sexual attraction. At his trial, the accused did not challenge the evidence of B and C, but did challenge the evidence of A.
The plurality of the High Court,[40] in ruling that the tendency evidence should not have been admitted, discussed the probative value of the evidence:[41]
As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of "B" and "C" was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to "B"s and "C"s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against "A" [Emphasis added].
[40] Kiefel CJ, Bell, Keane and Nettle JJ.
[41] At [26]–[27].
The plurality went on to say:
It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with "B" and "C" is relevant to proof that he committed the offences alleged by "A", but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.[42]
Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over "A", an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"s account that the appellant followed him into a public toilet and molested him.[43]
"B"s and "C"s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against "A" to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against "B" and "C" ten years before, in different circumstances, and without any evidence other than "A"s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that "A" alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. [44]
[42] At [30] per Kiefel CJ, Bell, Keane and Nettle JJ.
[43] At [31] per Kiefel CJ, Bell, Keane and Nettle JJ.
[44] At [32] per Kiefel CJ, Bell, Keane and Nettle JJ.
In R v N, BB (No 2) [2020] ACTSC 85, Burns J applied McPhillamy in circumstances where the tendency was expressed in very general terms and there was a temporal disconnect between the offending alleged to be cross-admissible:[45]
In the present case, the first two tendencies alleged by the Crown are in very general terms. They allege, respectively, a tendency to have a sexual interest in pre-pubescent male children and a tendency to act on that sexual interest. Without more, such tendencies cannot have significant probative value. Proof that an accused person has sexually assaulted one child is not significantly probative that they have sexually assaulted a different child at a particular time and date. As the majority said in McPhillamy above, the prosecution needs to identify some feature of the alleged instances of sexual misconduct that link them together. After the decision in McPhillamy, it is not enough in cases involving multiple complainants to identify the sole factor linking the alleged instances of sexual misconduct as the fact that all the complainants are children.
In the table provided by the Crown, as set out at [27] above, the Crown has identified only two tendencies said to be common to the charges concerning different complainants. Tendency 3, the alleged tendency to engage in fellatio with pre-pubescent males, is said to be a common feature of offences committed by the accused against KT and KE. Tendency 4, the alleged tendency to engage in acts or attempted acts of anal penetration with pre-pubescent male children, is said to be a common feature of offences committed by the accused against KT and BH.
With regard to Tendency 3, there is a gap between the accused’s alleged sexual offending against KT, which is said to have finished in 2007, and the commencement of his alleged offending against KE in 2016. As such, it cannot be suggested that there is a temporal link between the alleged instances of offending. In addition, the conduct alleged to link the instances of sexual misconduct (engaging in fellatio) is generic sexual conduct, in the sense that it is conduct of the type that is usually reported in sexual offending. In order to give evidence of sexual offending against complainant A significant probative value in establishing that an accused sexually offended against complainant B, more is required than merely establishing that each alleged instance of offending consisted of acts commonly reported in that type of offending. This does not provide a sufficient link between the instances of offending to give each significant probative value as tendency evidence.
Turning to Tendency 4, there is a gap of some seven years between the conclusion of the accused’s alleged sexual offending against KT and the commencement of his offending against BH. In addition, the nature or description of the acts alleged does not provide a sufficient link between the instances of alleged offending to give them significant probative value as tendency evidence for the same reasons that I gave with regard to Tendency 3.
[45] [45]–[48].
Proof that an accused person has sexually assaulted one child is not significantly probative of the fact that he has sexually assaulted a different child at a particular time and date. As was said by the plurality in McPhillamy, the prosecution needs to identify some feature of the alleged instances of sexual misconduct that link them together. The suggested link in this case is the appellant's tendency to act on his sexual interest in pubescent girls under his supervision notwithstanding his familial connection and the risk of detection.
In McPhillamy, a gap of ten years between the events alleged as tendency evidence and the charged events was sufficient to deprive the tendency evidence of significant probative value, with regard to an alleged tendency to act upon a sexual interest in young teenage boys. In this case, the general nature of the propensity alleged, the substantial dissimilarities between the offending alleged against each complainant, and the significant time gap of 5 years during which there was no offending despite the fact that AM and other children, with whom he had a familial connection, were under the accused’s supervision deprive the propensity evidence of having the requisite strong probative value.
The evidence of each complainant is not cross-admissible for a propensity use.
Orders
As I have found that the evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P (2) (a) or (b) in respect of the other complainant, the discretion to sever the counts in respect of each complainant arises. I have had regard to the principles referred to in Sutton and De Jesus[46] and rule that counts 1-4 must be severed from 5-10 to avoid impermissible prejudice to the accused.
[46] Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1.