R v March

The appeal concerned a conviction for three counts of unlawful sexual intercourse with a person under 14 years and one count of aggravated indecent assault of a child under 14 years. The complainants were the appellant's step-granddaughters, V1 and V2. The trial judge admitted evidence from the appellant's granddaughter, X, concerning acts of indecent assault to which the appellant had pleaded guilty. The prosecution's basis for admitting X's evidence was the improbability of V1, V2, and X independently fabricating similar stories. The appeal was heard by Kourakis CJ, Sulan and Kelly JJ.

The central legal issues before the court were whether the trial judge erred in admitting the evidence of X, a non-complainant, and whether the judge adequately directed the jury regarding the use of this propensity evidence, particularly in relation to the potential for collusion or concoction. The appellant also raised grounds concerning the severance of counts, discreditable conduct evidence, collusion and contamination, the defence case, and initial complaint evidence.

The court found that X's evidence possessed strong probative value, satisfying the requirements of s 34P(2) of the Evidence Act. This conclusion was based on significant parallels in the behaviour described by X, V1, and V2, including the familial relationship between the appellant and the victims, their similar ages, the timeframe of the alleged offending, the brazen nature of the acts, the use of pretexts to create opportunities, and the manner in which the appellant cornered the complainants. The court noted that under current legislation, the possibility of concoction or collusion is a matter for the jury to consider, not a threshold test for admissibility to be determined by the judge.

The appeal was dismissed. The court concluded that the trial judge had not erred in admitting X's evidence or in their directions to the jury, and that no miscarriage of justice had occurred.