R v H, GJ (No 3) - [2014] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v H, GJ (No 3)
[2014] SADC 46
Reasons for Ruling of His Honour Judge Muscat
7 March 2014
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Accused charged with sexual offences against three complainants. Application for separate trials on basis evidence not cross-admissible.
Principles applying to application for separate trials in sexual cases considered.
Contention by accused pursuant to s 285AB of the Criminal Law Consolitation Act that order of another judge binding on issue of separate trials of two of the complainants.
Application refused.
Criminal Law Consolidation Act 1935 ss 278, 285AB; Evidence Act 1929 ss 34P, 34R, 34S, referred to.
R v C, CA [2013] SASCFC 137; R v K, MC (2009) SASC 141; R v Nieterink (1999) 76 SASR 56; R v Liddy (2002) 81 SASR 22, applied.
Phillips v The Queen (2006) 225 CLR 303; R v Maiolo (No. 2) (2013) 117 SASR 1; R v M, BJ (2011) 110 SASR 1; R v N, SH (2010) SASCFC 74; DPP v P [1991] 2 AC 447; R v Ellis (2010) 107 SASR 94; R v Dawson-Ryan (2009) 104 SASR 571; R v Wallace (2008) 100 SASR 119; Hoch v The Queen (1988) 165 CLR 292, considered.

R v H, GJ (No 3)
[2014] SADC 46

The accused is charged with five counts of sexual offending against three complainants. He seeks orders granting separate trials in respect to each complainant.
Count 1 charges an offence of persistent sexual exploitation of DC. Counts 2, 3 and 4 each charge an offence of indecent assault of SC. Count 5 charges an offence of persistent sexual exploitation of JC.
DC, SC and JC are all cousins. DC is the accused’s stepdaughter. SC and JC are the accused’s step nieces.
The offending is alleged to have occurred over the same period of time. The allegations are all ‘historical’, dating between 1975 and 1989.
The joinder of multiple charges on the one Information is provided for by s 278 of the Criminal Law Consolidation Act 1935.
Section 278 provides:
Joinder of charges
(1) Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a) Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 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.
(3) This section does not affect any other provision of this Act or any other Act permitting more than 1 charge to be joined in the same information.
(4) In this section—
sexual offence means—
(a)     an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b)     an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a corresponding previous enactment; or
(d)     an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
In this case, the offences charged are obviously a series of offences of the same or similar character and so satisfy the criterion in sub-s (1).
Subsection (2) provides, in certain circumstances, for the making of orders for separate trials of offences joined on the one Information.
Subsection (2a) makes specific provision as to the circumstances in which separate trials can be ordered in cases involving sexual offences.
The effect of sub-s (2a)(a) is that in the case of sexual offences, the court is required to start from the position that the counts are to be tried together.
Subsection (2a)(b) qualifies the position set out in sub-s (2a).
Subsection (2a)(b) permits a trial judge to order the separate trial of a count concerning a different complainant, if (and only) if, evidence relating to that count is not admissible in relation to each other count relating to a different complainant.
No further guidance is given in the section as to the other factors to be taken into account in determining the admissibility of the evidence.
Before the introduction of Division 3 of the Evidence Act 1929 relating to the admissibility of evidence showing discreditable conduct or disposition,[1] the common law principles as to the cross-admissibility of evidence applied in this State.
[1] Inserted into the Evidence Act in 2011 and operational from 1 June 2012, at which time s 278(2a)(c) of the Criminal Law Consolidation Act was repealed.
It seems that following the amendments to the Evidence Act if the evidence is determined to be cross-admissible a trial judge has no residual discretion to sever the hearing of the counts.
The principles relating to cross-admissibility and separate trials have been considered by the courts on many occasions and have been expressed in a variety of ways. The most recent authority in this State is The Queen v C, CA [2013] SASCFC 137. I will return to this judgment a little later in these reasons.
In Phillips v The Queen (2006) 225 CLR 303, the High Court summarised the common law principles of cross-admissibility in the following way at [54]:
The ‘admission of similar fact evidence ... is exceptional and requires a strong degree of probative force’. It must have ‘a really material bearing on the issues to be decided’. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has probative value of the requisite kind.’ The criterion of admissibility for similar fact evidence is the ‘strength of its probative force’. It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence. The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused’. Admissible similar fact evidence must have ‘some specific connection with or relation to the issues for decision in the subject case’. As explained in Pfennig v The Queen:
‘[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving sufficient cogency to the prosecution case or some aspect or aspects of it.’[Citations omitted]
The decision in Phillips v The Queen is instructive in its application of those principles to the facts in that case, which involved allegations of rape or indecent assault made by eight different complainants against the defendant. The issue in the trial was the consent of each complainant to the admitted acts by the defendant. The trial judge left the evidence of the complainants to the jury on the issue that it went to the improbability of all complainants lying or being unreliable about their consent.
The High Court found that while there were similarities in the complaints that had been made, the nature of those similarities simply fell short of having the requisite striking qualities necessary to establish that each complainant did not consent to the defendant’s conduct. This is because the evidence did not prove any disposition on the part of the defendant, nor of the state of mind of any of the complainants on a particular occasion.
It has been submitted by the accused in this case that the similarities in the accounts given by the complainants, when considered either individually or as a whole, also lack the requisite qualities necessary for there to be cross-admissibility, either on the basis of a propensity to commit the alleged offences against each complainant or that it would be improbable that all complainants have lied or colluded against the defendant.
As can be seen, cross-admissibility is the key criterion for assessing applications for separate trials in sexual assault cases.
The assessment of cross-admissibility is to be made pursuant to Part 3 of Division 3 of the Evidence Act, namely the provisions relating to discreditable conduct and in particular s 34P.
As Peek J stated in The Queen v Maiolo (No.2) (2013) 117 SASR 1 at [131] the discreditable conduct provisions ‘govern all aspects of a trial of all offences, including that relating to the determination of severance of counts’.
The prosecution has contended that the cross-admissibility between the complainants’ accounts are such as to possess the requisite degree of strong probative force which clearly transcends its merely prejudicial effect.
The prosecution has not submitted that the similarities give rise to a propensity or disposition on the part of the accused capable of being used as circumstantial evidence.
It points to the following factors as to why the evidence is cross-admissible:
1. The accused was in a de facto relationship with MC during the period of the alleged offending. MC is the natural mother of DC. She is also the aunty of SC, through her brother, and of JC, through her sister.
2.The offending was allegedly committed against three girls of virtually the same age.
3.The offending is said to have occurred in the same domestic home setting.
4. The accused was a family member in a position of trust with respect to each complainant, namely he was DC’s step father, and SC’s and JC’s step uncle.
5. The alleged offending occurred against SC and JC when they were either visiting or staying with the accused and his family.
6.There was a pattern of committing the alleged offences in the presence of others. Each complainant states that sexual activity occurred whilst other family members were present.
In relation to SC, counts 2 and 3 are said to have taken place in the presence of DC, MC and DC’s siblings and in the presence of DC respectively.
In relation to JC, she states that sexual activity occurred in the presence of her cousins, and on one particular occasion, whilst the accused was engaging in sexual intercourse with DC, he indecently touched her.
7.The accused never used, or threatened to use, any force to perpetrate the alleged abuse, nor did he coerce any of the complainants to do so.
8.The majority of the alleged sexual abuse involved similar acts, apart from DC with whom it is alleged the accused engaged in penile-vaginal intercourse.
9.The accused is alleged to have engaged in open and brazen sexual activity. For example, each complainant alleges that they were exposed to the accused having sexual intercourse with MC or committing sexual acts upon children in their presence. This, it was submitted, ‘normalised’ or ‘desensitised’ the complainants to engaging in sexual activity from a young age.
10.In addition to the above matters, the sexual misconduct is alleged to have often occurred with, or in the presence of, more than one person, particulars being:
i.      That each complainant states sexual misconduct occurred in a group context, with cousins or siblings present in the accused’s bedroom.
ii.     Each complainant states incidents occurred in the bathroom involving other children.
iii.     DC emerges as the ‘common victim’ in some of the alleged offending disclosed by SC and JC.
Some of the factors raised by the prosecution do not assist in determining either bases of admissibility of discreditable conduct pursuant to s 34P of the Evidence Act: for example that the accused was in a de-facto relationship with DC’s mother at the time or that he was a family member in a position of trust or that the alleged offending against SC and JC occurred while they were visiting the accused’s family. This might explain why he was in a position to commit the alleged offences, but has no bearing upon any disposition he might have towards sexually abusing young girls or of the improbability of the complainants lying or colluding against him.
Against the above similarities pointed to by the prosecution, the accused has pointed to the differences in the alleged offending as between SC and JC and when compared to DC.
Clearly, the allegations made by each complainant in this case contain dissimilarities. Only DC has alleged that the accused engaged in penile-vaginal intercourse with her. In my view, this is of little consequence. DC, for example, was obviously abused more regularly than the others, as she was the accused’s stepdaughter and residing with him. The alleged abuse involving DC extended over an extraordinary length of time and bore two children.
It is expected that there will be dissimilarities. The prosecution has not attempted to justify cross-admissibility based on ‘striking similarity’ or ‘unique modus operandi’, but rather on the underlying unity of the complainants’ allegations. As Kourakis CJ stated in The Queen v C, CA at [65]:
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
The accused has submitted that DC’s allegations are significantly apart from the allegations made by SC and JC. Counsel for the accused, Mr Algie SC, who appeared with Mr Redford, traversed the various differences in the conduct allegedly perpetrated upon DC, which did not co-exist with what either SC or JC alleged of their abuse. Senior Counsel submitted, therefore, that the account of DC was fundamentally different and did not enjoy the necessary underlying unity with respect to SC and JC. Counsel submitted that the evidence demonstrated or revealed a more involved sexual relationship with DC than either SC or JC.
However, as the prosecutor submitted, this case is not one of ‘striking similarity’ or of a disposition of the accused to sexually abuse young girls, but rather one of circumstantial evidence based on a process of improbability of reasoning, analogous to the situation in The Queen v Liddy.[2]
[2] (2002) 81 SASR 22.
The accused has also pointed out that SC recounts specific incidents of abuse, which form the subject of counts 2, 3 and 4, as well as an uncharged act. In none of those incidents is JC included, although DC is involved in at least two incidents. Likewise, with JC’s proposed evidence relating to count 5. Apart from witnessing abuse upon DC, or DC also being involved in some of the abuse, JC does not mention witnessing any sexual abuse involving SC.
Turning to DC, the accused submitted that apart from JC, she does not incorporate SC in any particularised act.
Thus, it was submitted there was lacking the necessary degree of cross-admissibility between the complainants in respect to the counts such that separate trials are necessary in order to avoid prejudice to the accused and to ensure he receives a fair trial.
The accused also contended that DC’s memory would have been contaminated through information she would naturally have been aware of. I accept that between 1987 and 1989, DC would have been aware that the accused, her stepfather, faced allegations of a sexual nature from SC and JC, her cousins.
DC was part of the family and would have been aware, at the very least, that her stepfather was charged, and probably, broadly, what the allegations against him were.
It was submitted that based on the evidence Professor Coyle gave on the voir dire relating to contamination of memory,[3] that there existed the possibility that DC’s memory has been contaminated through post-event information, even subconsciously.
[3] See my ruling in R v H, GJ (No 2).
I am not persuaded, on what is before me, that DC’s memory has been contaminated, although that remains to be seen during cross-examination. Even if there existed the possibility of memory contamination, the extent of it will never be known[4] and the jury will be given appropriate directions to deal with this matter, should it arise on the evidence. In any event, any effect that this may have had on DC’s allegations is now a matter for the jury to consider.[5]
[4] Evidence of Professor Coyle at Transcript 53-54, 58, 60-61, 66-67.
[5] Section 34S of the Evidence Act.
I return to the law once again. Sections 34P, R and S of the Evidence Act provide:
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).
34R Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
34S Certain matters excluded from consideration of admissibility
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a)     there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b)     the evidence may be the result of collusion or concoction.

As can be seen s 34 differentiates between two classes of permissible use of discreditable conduct. The first does not rely upon any propensity or disposition of the defendant being used as circumstantial evidence (s 34P(2)(a)) and a second use which does rely on a propensity or disposition of the defendant as circumstantial evidence of a fact in issue (s 34P(2)(b)). Different standards are set for the admissibility of the evidence in each instance.
In respect to s 34P(2)(a), the permissible use of the evidence must ‘substantially outweigh any prejudicial effect to the defendant’. In respect to s 34(2)(b), the evidence must have ‘strong probative value, having regard to the issue arising in the case’.
In determining whether to admit discreditable conduct evidence, s 34P(3) provides that a trial judge must consider whether the permissible 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.
Further, in considering the admissibility of discreditable conduct evidence, two former common law considerations have specifically been excluded by the Legislature: those being what were previously referred to as the Pfennig test[6] and the Hoch requirement.[7]
[6] Pfennig v The Queen (1995) 182 CLR 461.
[7] Hoch v The Queen (1988) 165 CLR 292.
Section 34S directs a trial judge not to take into account first, whether there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant (the Pfennig test) and secondly, that the evidence may be the result of collusion or concoction on the part of the complainants (the Hoch requirement).
Pursuant to s 34R(1), if I admit the evidence pursuant to s 34P, then I must identify and explain the purpose for which the evidence may and may not be used by the jury.
Further, pursuant to s 34R(2), if the evidence admitted is essential to the process of reasoning to guilt, then I must direct the jury that the evidence cannot be used in that way unless, on the whole of the evidence, the jury is satisfied beyond reasonable doubt of the facts in proof of that evidence.
Returning to the facts of this case, everything turns upon the unique factual matrix of alleged sexual abuse disclosed by the three complainants. The identity of the accused as the alleged offender is not in dispute. It is therefore, unnecessary for the evidence to possess ‘striking similarity’ when assessing cross-admissibility, such as found in Sutton v The Queen (1984) 152 CLR 528. In this regard I refer to what the Court of Criminal Appeal stated in The Queen v Liddy (2002) 81 SASR 22 as to the admissibility of evidence of this nature.
In the accused’s case, the strong probative force of the evidence stems from the improbability of three complainants, each alleging similar sexual misconduct against him, unless those allegations are true, against it being the product of collusion or concoction. I refer to what Vanstone J said in The Queen v Wallace (2008) 100 SASR 119 and in The Queen v M, BJ (2011) 110 SASR 1. More recently, Kourakis CJ provided a similar statement of the principle in The Queen v C, CA.
The accused referred to The Queen v N, SH (2010) SASCFC 74. That case involved only two complainants and the factual circumstances that there existed, founding an order for separate trials on appeal, were different to this matter. Not only was the sexual abuse alleged against each complainant vastly different but it occurred at different times and when the complainants were of differing ages.
I acknowledge that the law relating to joinder and cross-admissibility relating to multiple complainants in sexual cases is extremely complex. There are many judgments of the High Court and Courts of Appeal across the land which have dealt with these issues. Reference was made during the course of argument to the judgment of the Chief Justice in The Queen v C, CA. It was submitted by the accused that that case was indistinguishable from his.
In The Queen v C, CA, a case involving three complainants, the learned Chief Justice found that the evidence of one of the complainants was not cross-admissible in relation to the other two and accordingly the trial miscarried because separate trials should have been ordered by the learned trial judge.
The appeal was allowed on the basis that the counts against two complainants should have been severed from the third complainant as not being cross-admissible on the basis of propensity and because the learned trial judge’s directions were deficient with respect to the permissible use of the evidence, but more importantly, how the evidence was not to used by them in an impermissible way.
The Chief Justice identified the two bases for cross-admissibility based on different types of reasoning. The first is the ‘similarity of account’ basis, where the probative force lies in the improbability of persons independently concocting stories or colluding.[8] The second is the ‘propensity or proclivity’ basis, where the probative force lies in the evidence showing an ‘innate behavioural proclivity to commit offences of the kind committed against the other complainants’.[9] I add to this that the relevant propensity necessary to found admissibility is to offend against any child of similar age and sex.
[8] At [57]-[60].
[9] At [68].
It was stated by the Chief Justice that in relation to two of the complainants, because of the similarities in their accounts, the evidence could be used for both ‘similarity of account’ and ‘propensity’ reasoning but that the evidence of the third complainant was not so similar that it could be used for ‘propensity’ reasoning, although it was sufficiently similar to be used for ‘similarity of account’ reasoning.
Since the third complainant’s evidence was only admissible on one basis, it was therefore not cross-admissible in relation to the other complainants because there was a very real risk that the jury would engage in ‘bad person’ reasoning against the accused. In other words, cross-admissibility existed between two of the complainants and the third complainant but the reverse was not true. The third complainant’s evidence was not cross-admissible in relation to the others.
As the learned trial judge and the prosecutor did not expressly make it clear to the jury precisely which of the two bases of cross-admissibility was being relied upon, there existed the real possibility that the jury would have reasoned in both ways, when such reasoning could never have existed with respect to one of the complainant’s on the basis of a propensity on the part of the accused.[10] In other words, the evidence of one of the complainants, whilst relevant for ‘similarity of account’ purposes, was not as extensive sexual conduct as the other complainants were alleging, so as to be used as ‘propensity evidence’ as was the case with the other complainants.[11]
[10] At [87].
[11] At [85].
It followed that the impermissible use of the third complainant’s evidence could not be kept separate from the permissible use of the evidence of the other two complainants in terms of propensity reasoning. In that situation, the impermissible use is to reason that ‘a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged, whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity’ (in other words ‘bad person’ reasoning).[12]
[12] At [76].
As the Chief Justice stated, the evidence of the third complainant had the capacity to prejudice the evaluation of the evidence of other complainants for propensity purposes, because ‘of the strong human tendency to reason retrospectively to the effect that the appellant’s conduct against the [third] complainant was a manifestation of the tendency suggested by the conduct against the other two [complainants] and that the only reason the appellant did not offend in that way against the third complainant was that the appellant was not given sufficient opportunity to indulge his proclivity with him. Consciously or subconsciously, the evidence of the offending against the third complainant will then be used to reinforce the inference of a particular propensity arising out of the evidence of the other two [complainants]. Fallacious retrospective reasoning of that kind is common to trained and lay minds alike.’[13]
[13] At [87].
The case of The Queen v C, CA serves to highlight the legal and factual complexities that can arise in these sorts of matters and the great care which is required of a trial judge in identifying the permissible and impermissible uses of the evidence to the jury through appropriate and clear directions.
Mr Algie submitted, that were I to order separate trials, the complainants who witnessed the alleged offending against another complainant would still be able to give evidence at the trial involving that other complainant. He referred to the reasons of the Chief Justice in The Queen v C, CA at [90]. Whilst that is always possible, the prejudice to an accused, and indeed the prosecution, if such a course is adopted is obvious, and any trial proceeding on that basis would be fraught with extreme difficulty, as Nicholson J observed who, in this respect, differed from the Chief Justice’s view.[14]
[14] At [141]-[142].
In the end, I need not determine that matter as I am satisfied the proposed evidence of the three complainants, considered as a whole, has probative value, satisfying the requirements of s 34P(2)(a), namely that it substantially outweighs any prejudicial effect it may have on the accused.
I do not consider the analysis made by Mr Algie relating to the evidence each complainant will give is sufficient to persuade me that cross-admissibility is lacking in this case.
Whether the evidence has sufficient probative value to outweigh its prejudicial effect must always be a question of degree. The difficulty faced by the accused is the probative force of the evidence relating to cross-admissibility is significantly strengthened when one adds the evidence DC will give to the evidence SC and JC will give.
This is not to say that viewing SC’s and JC’s accounts together does not render their evidence cross-admissible, as DPP v P[15] demonstrates, but rather the probative value of the evidence is enhanced when DC’s account is included.
[15] [1991] 2 AC 447.
Viewing the accounts collectively, discloses a sufficient degree of similarity such that it transcends the prejudicial effect upon the accused. This is the approach that was taken by the Court of Criminal Appeal in The Queen v Dawson-Ryan (2009) 104 SASR 571, The Queen v Ellis (2010) 107 SASR 94, The Queen v C, CA.
The prosecutor has made his position extremely clear, in that the evidence of the complainants sharing similar accounts of the charged and uncharged conduct, reveals an ‘underlying unity’ such that the probative force of the evidence is to be found in the improbability of the complainants independently concocting or colluding their accounts. I have taken the prosecutor to have used those words as meaning ‘similarity of account evidence’, a phrase clearly preferred by the Chief Justice in The Queen v C, CA as emphasising what is required before the evidence assumes the necessary probative force required to justify its admission.
The prosecutor has specifically disavowed any reliance on propensity or proclivity reasoning as discussed by the Chief Justice in The Queen v C, CA.[16] Whilst this does not mean that the evidence cannot be used to show that the accused has a particular propensity to engage in the conduct described by the complainants, I have found it unnecessary to consider whether this is so, based on the very specific use to be made of the evidence as expressed by the prosecutor, namely that it is being adduced only for improbability reasoning.
[16] See Prosecution written Outline of Argument at [56]-[57] and oral submissions of the prosecutor during argument.
I am satisfied that the evidence of each complainant is cross-admissible with respect to each other on the basis contended for by the prosecution.
I am also satisfied that limiting the permissible use of the evidence in this way, together with a clear direction that the jury not to reason that the accused is a ‘bad person’, should avoid the difficulty exposed by the Chief Justice in The Queen v C, CA, where the distinction was not sufficiently explained to the jury.
The jury will be directed that the probative value of the complainants’ accounts relates only to the improbability of the complainants independently, but coincidentally, fabricating or imagining similar accounts.
In other words, I am satisfied that through an appropriate direction, the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk the jury would use the evidence for an impermissible purpose.[17]
[17] Section 34P (3) of the Evidence Act 1929
I indicate that in considering the issue of cross-admissibility, I have had regard to both the charged and uncharged conduct alleged by the complainants.
In The Queen v K, MC (2009) SASC 141 Vanstone J stated at [22] and [23]:
In my view, counsel’s analysis of the matters relevant to an order for separate trials, involving a compartmentalising of charged and uncharged acts and focusing on individual counts, would apt to lead to an overtechnical and erroneous result in terms of ordering separate trials.
I say that because, once it was accepted that in the case of each girl, uncharged acts described by that girl were admissible, then there was no particular reason to discriminate subsequently between her charged and uncharged allegations when directing on the proper use of that girl’s evidence in respect of other charges. The primary use of the uncharged acts which each girl described being committed upon herself, was as to the charges in relation to that girl. The evidence of such acts went directly to the credibility of the person complaining of them. Ultimately, the evidence tends to explain the entirety of the relationship between the alleged offender and the complainant. It enables a better assessment by the jury of the truthfulness and accuracy of the complainants’ evidence. In this case, it had the more specific uses required of it by Gipp v R and R v Nieterink to justify its admission and these uses were put to the jury by the trial judge. It is unnecessary to enumerate those, as there was no complaint about the admission of the uncharged acts, insofar as they bore on the charges concerning that same complainant. Once it was accepted that one girl’s relationship with the appellant was relevant to conduct of the appellant with respect to another girl, then the whole of the evidence going to prove that relationship became relevant. [Citations omitted]
Counsel for the accused submitted that I should have regard only to the charged conduct when considering cross-admissibility. He referred to what Peek J stated in The Queen v Maiolo (No.2).[18] I am not persuaded that is what Peek J was stating in the passages referred to me by counsel. I am not prepared to accept the accused’s submission that in considering cross-admissibility, the evidence must be limited to the charged conduct. The relevance of the uncharged conduct in a sexual case remains as stated by Doyle CJ in The Queen v Nieterink[19] and can be considered along with the evidence of the charged conduct when determining whether the accounts of different complainants has the necessary similarities to demonstrate cross-admissibility.
[18] At [163]-[166].
[19] (1999) 76 SASR 56.
Having said that, in this case the charged conduct involving DC and JC concerns the offence of persistent sexual exploitation, and so individual acts are not particularised as would be the case if specific sexual offences of indecent assault and unlawful sexual intercourse were charged, such as in the case of SC where three specific counts of indecent assault have been charged and particularised.
The accused raised another argument relating to severance of the counts that concerned the recent enactment of s 285AB of the Criminal Law Consolidation Act.[20]
[20] Inserted into the Criminal Law Consolation Act in 2012 and operational from 11 March 2013.
The section provides:
Determinations of court binding on trial judge
A determination or order made by a judge of the court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or the determination or order is inconsistent with an order made on such an appeal.
That section provides that an order made by a judge dealing with charges laid in an Information is binding on a judge presiding over a trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal. However, this is subject to a discretion vested in the trial judge if he or she considers that it would not be in the interests of justice for the order to be binding.
In 1989, an Information charging the accused with sexual offences against SC and JC was before Judge Lowrie for trial. At that time DC had not made any allegations against the accused. The accused applied for separate trials relating to SC and JC. The prosecution did not oppose the making of an order granting separate trials based on then recent High Court judgment in Hoch v The Queen (1988) 165 CLR 292.
The accused has submitted that I should be bound by Judge Lowrie’s order made in April 1989, such that there ought to be separate trials involving SC and JC and, it follows, DC.
I consider it would not be in the interests of justice to be bound by Judge Lowrie’s order. I base this primarily on the inclusion of DC as a complainant in the Information now before this court. The issue of cross-admissibility takes on a different complexion when her allegations are considered. I am satisfied that that alone justifies my reconsideration of the matter, and to do so based on the substantive change in the law which has occurred since Judge Lowrie made his order, namely the introduction of s 278(2a) of the Criminal Law Consolidation Act and ss 34P, R and S of the Evidence Act.
I indicate that had it not been for the addition of DC’s charge to the Information, I would not have interfered with the order of Judge Lowrie to order separate trials involving SC and JC. At that time the prosecution conceded separate trials were appropriate. Whilst I accept that decision was based on what then fell from the High Court in Hoch’s case, which is now specifically removed as a consideration in determining an application for separate trials, I consider it would be most unfair to the accused and not in the interests of justice to revisit that issue now. The prosecution has not contended otherwise.
It was no fault of the accused that his separate trials, involving SC and JC, did not proceed in 1989. The prosecution determined, at that time, not to proceed with either matter following the concession that separate trials were appropriate. The prosecution should be bound by that order, as it has accepted.
The application for separate trials is therefore refused.