R v Y, Db - [2005] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Y, DB
Reasons for Ruling of His Honour Judge Tilmouth
3 August 2005
CRIMINAL LAW
Offences against the person - prosecution alleging sexual offences and indecent assault against three complainants - application for separate trials - counts properly joined - joint trial of several counts - held evidence on each count admissible on other counts to rebut defence of innocent association.
Criminal Law Consolidation Act 1935 (SA) s 49, s 56, s 278, referred to.
Martin v Osborne (1936) 55 CLR 367; R v Phan (1990) 54 SASR 561, 565; R v Liddy (2002) 81 SASR 22, applied.
Sutton v The Queen (1993-1994) 152 CLR 528, 535, distinguished.
De Jesus v The Queen (1987) 6 ALJR 1; KRM v The Queen (2001) 206 CLR 221; Hoch v The Queen (1985) 165 CLR 292; BRS v The Queen (1997) 191 CLR 275; Pfennig v The Queen (1995) 182 CLR 561, considered.

R v Y, DB
[2005] SADC 97
Preliminary

The accused has before the Court pre-trial applications pursuant to s. 278(2) of the Criminal Law Consolidation Act1935 (SA) (“the Act”) for severance of various counts on the Information laid against him and motions for separate trials. He was arraigned and pleaded not guilty to eighteen counts; counts 1-9 and counts 11-18 charge unlawful sexual intercourse contrary to s 49 (3) of the Act. Count 10 alone charges indecent assault contrary to s 56 of the Act.
Factual background
The first seven offences together with the fifteenth, sixteenth and seventeenth are said to have occurred at Morphett Vale, the eighth, ninth, tenth, twelfth, thirteenth and eighteenth at West Beach, and the eleventh at Lonsdale. The Morphett Vale address was that of the accused and his sister, and West Beach was that of two brothers, except count eighteen which allegedly occurred at a carpark in that suburb.
These charges relate to three complainants, each of them young boys aged 12 to 15 at the time of the alleged offending, and said to have occurred between December 2002 and August 2004. Counts 1-4 relate to the first complainant and charge events occurring between December 2002 and January 2003, counts 5-14 relate to the second complainant and relate to events between April 2002 and August 2004 and counts 15-18 relate to the third complainant over the period from September 2003 to November 2003. The brothers are the second and third complainants. It can be seen that the conduct relating to each complainant is broadly sequential, although there is a period of overlapping between the first and second complainants between April 2002 and January 2003 and as between the two brothers between the months of September and November 2003.
The primary submission for the accused is for the charges relating to each complainant to be heard and determined separately. There is a secondary submission for severance of the trial at the first complaint from that of the two brothers.
Severance, not joinder the issue
Section 278 (1) of the Act permits the joinder of “two or more offences . . . in the same Information if those charges are founded on the same facts or form, or are part of, a series of offences the same or a similar character”. Before proceeding to the question of severance it is necessary to first determine whether the counts are validly joined as provided for by this Section. The following question is to determine whether they should be tried together; these are two distinct legal issues: R v Demirov,[1] R v Gibb,[2] R v Mayfield.[3] The former is more readily resolved than the latter.
[1] [1976] VR 244, 251
[2] [1983] 2VR 155, (1982) 7 A Crim R 385
[3] (1995) 63 SASR 576, 578
The principles applicable to joinder under this and equivalent provisions across Australia, were authoratively determined by the High Court in Australia in De Jesus v The Queen.[4] In order for proper joinder, there must be a sufficient nexus between the counts to be charged as detailed in the much quoted judgment of Dawson J:[5]
However, for two or more offences to constitute a series there must be a nexus or a connection between them. This, I think, is something different from the express requirement in s 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf Archbold’s Criminal Pleading Evidence & Practice, 42^nd ed at para 1-77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.
Similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s 585 - “a series of offences of the same or a similar character” - is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow at 39 that: “Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.” Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legal the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a “series” without straining the word beyond the meaning which it is reasonably capable of bearing.
[4] (1987) 6 ALJR 1
[5] (at ALJR 9)
It can be seen that all charges here are clearly of a ‘similar kind’. It was not disputed by counsel for the accused that these requirements for joinder were satisfied, a concession hardly surprising given the underlying facts – dealt with later in these reasons. Their connection sequentially in point of time, the broad correspondences in the attributes of each transaction to which they relate and the overall similarities between them, lead readily to the conclusion that they form the requisite series of offences for valid joinder to occur.
The bases for reception
Therefore the crucial question for determination is whether there should be separate trials, and if so as to which counts or with respect to which complainant(s)? No point was taken by the defence concerning the possibility of concoction or contamination as between the respective complainants, so that potential complication has no further relevance at this point, although defence counsel suggested it might at the trial. It is the prosecution case that there was no reasonable possibility of collusion between the complainants: Hoch v The Queen,[6] Pfennig v The Queen,[7] R v Lock,[8] R v H.[9]
[6] (1985) 165 CLR 292, 296-297, 302
[7] (1995) 182 CLR 561, 481-483
[8] (1997) 91 A Crim R 356 (NSW)
[9] [1995] 2 AC 596, [1995] 2 Cr App R 437
Counsel for the prosecution pitches her submissions on three bases. In sum, the contention is that the evidence on each count, and as between each complainant, is “cross-admissible” so that severance is not required. First she relies on the decision of the Court of Criminal Appeal in R v Liddy[10] which is said to be practically indistinguishable, so that all counts are admissible against the others, even though there might not be the striking similarity or underlying unity falling short of precise coincidence between them: KRM v The Queen[11], B v The Queen,[12] DPP v P.[13]
[10] (2002) 81 SASR 22
[11] (2001) 206 CLR 221, 244-245 [66]
[12] (1992) 175 CLR 599, 618
[13] [1991] 2AC 447, 460G
Secondly, it is submitted there are such ‘striking similarities’ between the evidence to be led on each count and in the surrounding circumstances relating to each complainant, so as to amount to evidence of “similar facts” in the strict sense, as in for example R v Smith,[14] Sutton v The Queen,[15] R v England.[16]
[14] (1915) 11 Cr App R 229, 237
[15] (1993-1994) 152 CLR 528, 535
[16] [2002] SASC 108, 219 L5JS 226
Thirdly, it is put that the story of each complainant, independently of the other(s), make it highly improbable that they were untrue. Similar bases of admission to those sought here are recognised by Part 3.6 of the Uniform Evidence Acts as ‘Tendency’ and ‘Coincidence’ evidence respectively.[17] These concepts are very similar to those recognised under the common law.
[17] Evidence Act 1995 (Cth), Evidence Act 1995 (NSW), Evidence Act 2001 (Tas), ss 97 & 98 respectively
General principles relating to joinder
Before assessing the merits of the application it is important to identify the precise basis on which admission is sought, and then to determine how that evidence could be legitimately used by the jury. That task is clarified by contemplating the proposed directions to be given to the jury and in order to assess whether or not those directions are sufficient to guard against the risk of “impermissible prejudice” in accordance with the principles set out by Brennan J in Sutton v The Queen.[18] In my view the question of ‘cross admissibility’ can only be properly determined once the proposed use is clearly established, bearing in mind “the admission of similar fact evidence is the exception rather than the rule”; Markby v The Queen,[19] and therefore prima facie inadmissible: Sutton.[20]
[18] [above at CLR 542]
[19] (1978) 140 CLR 108, 117
[20] (at CLR 534, 545)
The starting point is that when an accused is charged on an indictment with offences against different victims, and the evidence on one set of counts is inadmissible on the others, or in respect of some counts but not all, “ordinarily

. . . the court should order separate trials”: KRMv The Queen.[21]
[21] (2001) 206 CLR 221, p234-235 (per McHugh J), p254-255 (per Kirby J)
General admission on the first basis put forward for receiving the evidence focuses on mere similarities and ordinarily does not form a sufficient basis for “cross-admissibility”. Admission on some lesser footing then ‘striking similarity’ or ‘coincidence’, singularly fails to inform the Court of the precise basis of admission in the first place; still less does it enable the Court to formulate the directions necessary in order to avoid an inherent risk of prejudice, or to effectively guard against impermissible use. I therefore reject the contention that the evidence relating to the various counts on the Information against the accused, or the evidence relating to one complainant, is generally admissible against the other(s), without more.
Similar fact or tendency evidence
The next basis for tender as noted above, depends upon “striking similarities” between the proposed evidence of each complainant. For this purpose the prosecution points to the victims being young adolescent boys, the inter-relationship of each transaction charged in point of time and place, that each complainant was introduced to the accused (in two cases through clubs or groups and in the remaining case by one complainant to his brother), each was offered a reward (alcohol in the case of one, a telephone, money and lollies in the case of another and transport in the case of the third), two were shown either a pornographic video or pornographic books, each involved sleepovers at the accused’s house at least once, each escalated to the point of mutual masturbation and then mutual fellatio, and each involved anal intercourse with the complainant. Most importantly perhaps, the relationship between the complainants and the accused turned from “innocent” to sexual through games of “truth or dare”. It was argued the latter showed such a high degree of correspondence to amount to a “system of compliance”, one gradually seducing and conditioning the young boys into accepting and participating in sexual activity.
The prosecution relied heavily on Sutton v The Queen (above). Sutton involved charges of rape relating to three women. The issue was “whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably find that the same person was guilty of all the crimes”: Gibbs CJ, [22] Brennan J,[23] Deane J.[24] The basis for allowing the evidence in that case, and the manner in which it was permitted to be used by the jury, is to be found in the judgment of Brennan J, where His Honour approved of the following charge to the jury by Mitchell J at the trial:[25]
Sometimes there may be such a striking similarity between two different acts that a jury may be satisfied beyond reasonable doubt that the person who committed one set of acts must have committed the other. That is to say that the accused has put a certain stamp upon the crime which makes it easily recognizable that he must have committed both sets of crimes. This could not be so if both sets are such that they may be explained by coincidence. There must be such a close similarity, such a clear underlying unity between both sets of acts as to make coincidence a very unlikely explanation for what happened.
And that is what the Crown says here. The Crown says here it is so unlikely that you can disregard it that two or more people committed these crimes. If you decide the Crown is right (but you must bear in mind that it is not sufficient if the evidence simply raises or deepens the suspicion that this accused is guilty of all offences) it must make any other conclusion than guilty an affront to your common sense.
In this case the Crown says that, provided you are satisfied beyond reasonable doubt that the accused committed the crimes alleged in respect of one complainant, then the circumstances in which the other crimes were alleged to have been committed were so similar as to lead inevitably to the conclusion that he must have committed the other offences.
[22] (at CLR 535)
[23] (at CLR 552)
[24] (at CLR 560)
[25] (at CLR 544)
Sutton was as I have said, a case of identification and it is evident from the passage quoted by Brennan J, that the question was not whether the evidence revealed “a certain stamp upon the crime” but whether it revealed the “stamp of the offender.” This becomes ever clearer from the judgment of Gibbs CJ, who after pointing to eleven attributes of similarity,[26] concluded that the evidence had been left correctly to the jury, even though he feared the case was an example of “setting the standard of striking similarity too low” and was one “very near to the borderline”.[27] That view was shared by Brennan J.[28]
[26] (at CLR 535-536)
[27] (at CLR 537)
[28] (at CLR 554)
It is clear from an analysis of the judgments in Sutton that the trial directions were upheld principally because the admission of the evidence was justified on the basis that it was capable of proving “the applicant was the assailant in the case of one of the assaults [and] was relevant and possessed probative force in relation to the question whether the applicant was the assailant in relation to the other occurrences”: per Deane J.[29] Defence counsel complains that so far as this case is concerned, the similarity of features go no further than those common to every offence of these kind. There is support for that contention to be found in the judgment of the Court of Criminal Appeal in R v Inder,[30] holding that evidence was not admissible since the “similarities … represent the stock in trade of the seducer of small boys and were not unique but appear in the vast majority of cases”. To a large extent that is very true, even though the unusual – perhaps even unique – “truth and dare” attributes related by the complainants, created a material point of distinction from Sutton.
[29] (at CLR 560)
[30] (1997) 67 Cr App R 143, 149
Whilst admission on this basis has its attractions, there are lurking dangers as Sutton demonstrates, especially when the issue is not one of identity. This matter is not a “stock in trade” situation, at least so far as one can detect from the depositions. When questioned about the events relating to the first victim the accused declined to answer police questions; when questioned about the second and third matters he conceded knowing both brothers and although he indicated he was not intending to answer questions, volunteered to the police that they were “liars”.
Given that the depositions disclose on their face offences by someone acquainted with the victims, rather than offences committed by strangers, it does not appear appropriate (at least at this point) to admit the evidence under the rubric of ‘striking similarity’.
In this respect I also notice that in her summing up to the jury in Liddy (above) Justice Nyland did not leave the evidence relating to five young male complainants on this basis; this is explained further in these reasons later.
Coincidence evidence
Turning then to the third basis upon which admission is sought, namely that of coincidence, the prosecution’s submission was that it was utterly implausible each complainant came forward with the detailed disclosure in similar terms quite independently of each other, absent evidence of contamination or concoction. This principle in the law of evidence relating to “coincidence” or probability is stated in what is commonly regarded as classic terms by Dixon J in Martin v Osborne:[31]
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
. . .
But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.
[31] (1936) 55 CLR 367 at 375 repeated in Plomp v The Queen (1963) 110 CLR 234 at 243
And further at 376:
… the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.
Essentially the same principles were stated in slightly different terms, by Evatt J in Martin v Osborne:[32]
In the application of the general principle of relevance, it is plain that the degree of resemblance and connection between the fact in issue and the fact sought to be adduced in evidence must be closely examined. Mere general resemblance is insufficient. It is not permissible to show that the accused or party is the kind of person who might be expected to do the kind of thing which is imputed to him. On the other hand, poisonings and fires, though often the result of accident, do not, in ordinary human experience, recur in the same family circle of in the case of the same occupier. Accordingly, evidence is allowed to prove the recurrence of such poisonings or such fires respectively without proof that the party concerned was more than “involved” in order to show the high degree of improbability attending the hypothesis that the poisoning or fire under particular scrutiny is an accident. As human experience negatives the likelihood of any repetition of disastrous accidents of a particular kind involving the same person, proof of such repetition is allowed to destroy or reduce the probability of the hypothesis of accident in the given case.
[32] (at CLR 384–385)

It is here the prosecution stands on somewhat stronger ground. On this footing the evidence relating to each of the three individual complainants is admissible, as evidence supporting the particular counts relating to the other complainant(s), because it is capable of showing if the jury is minded to accept it as such beyond reasonable doubt, the improbability of each of them independently and coincidently reporting incidents concerning the accused in substantially similar terms. In particular the separate reports of the games of “truth and dare”, make for a high degree of probability of those complainants relating quite similar stories, which were true: DPP (UK) Boardman,[33] BRS v The Queen,[34] Hoch v The Queen.[35]
[33] [1975] AC 421, 452F
[34] (1997) 191 CLR 275, 299
[35] (above at CLR 296-297, 302)
This is the basis upon which evidence of various counts was admitted and upheld in R v Phan[36] and R v Armstrong.[37] Seen in this way the evidence is “cross admissible” and may be used by the jury on the basis of “coincidence”, or as it has been variously expressed in cases over the years, to rebut a defence of innocent association: DPP v Kilbourne,[38] Hoch,[39] Sutton,[40] BRS v The Queen,[41] DPP(UK) v Boardman.[42] This also appears to be precisely the way Nyland J left the matter to the jury in R v Liddy (above) in her charge to the jury[43] as follows:
You start off by considering the evidence with respect to one count. It is up to you where you start. It does not have to be the first count on the information. If, having considered one particular count, you were satisfied beyond reasonable doubt that the complainant has told the truth, then you would find the accused guilty of that count. Your finding as to that count would then become circumstantial evidence which you would be entitled to take into account when determining whether you are satisfied beyond reasonable doubt as to the other counts.
The relevance lies in the improbability of five witnesses giving accounts of events which discloses a similar pattern of behaviour unless those events occurred in the way they described, but I must make it quite clear that before you can use the evidence in this way, you must be satisfied beyond reasonable doubt of at least one of the charges. Then, and only then, can you use that evidence as assistance to draw an inference of guilt as to the other charges.
Ladies and gentlemen, I have described this evidence as circumstantial evidence. Circumstantial evidence is to be distinguished from direct evidence. The direct evidence in this case is the evidence of each of the complainants as to the events which involved himself. Circumstantial evidence is evidence of the circumstances surrounding an alleged offence, from which the prosecution asks you to infer, beyond reasonable doubt, that the accused committed that particular offence. So in this case, if, having borne in mind the warnings I have given you, you were satisfied as to the truth of the evidence of first one complainant, then two or more, as you work your way along the chain, the inference for which the Crown contends would strengthen. On the Crown case, at the end of it all, you would be left with the improbability of each of these boys having told separate lies. The evidence of each would therefore support the others, and the coincidence of accounts would lead to the conclusion that the accused was guilty of all of these charges.
[36] (1990) 54 SASR 561, 565
[37] (1990) 54 SASR 207,217
[38] [1973] AC 729, 741
[39] (at CLR 300)
[40] (at CLR 556)
[41] (1997) 191 CLR 275, 299
[42] (above at AC 452 F)
[43] 31 May 2001 at [416 – 418]
These are the passages (amongst others) quoted by Mullighan J in Liddy [44] and Williams J[45] on appeal. Mullighan J considered the jury were “adequately and appropriately directed as to the use of the evidence”,[46] adding a few relatively minor criticisms not presently relevant,[47] and Williams J considered them to be “unduly favourable to the appellant”.[48] For his part Gray J appeared to agree, but in any event it is apparent from his judgment that he approved of admission on the basis that the evidence of the five complainants was relevant to disprove the defence of ‘innocent association’.[49]
[44] (above at SASR 88 [230])
[45] (above at SASR p139 [504])
[46] (at SASR p88 [230] )
[47] (at p88 [231])
[48] (at SASR 139 [505])
[49] (at SASR p148 [547])
If confined in that way, I am satisfied the proposed joinder and consequent “cross admissibility” on the limited basis proposed, retains the necessary pre-requisite high degree of probative value as required by Pfennig v The Queen,[50] so that it clearly transcends any prejudicial effect and it possesses such probative value or cogency “such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged”: Pfennig,[51] Liddy.[52]
[50] (1995)182 CLR 461,481 and refer R v Ellis (2003) 58 NSWLR 700
[51] (above at CLR 481, 483, 485)
[52] (above at SASR 37 [56])
Needless to say careful directions as to the confined basis of admission will have to be carefully explained to the jury in due course, as well as to the limits of permissible and impermissible use. In particular, a direction would be required to the effect that the jury should not use the evidence as tendency evidence or for impermissible propensity reasoning: Gipp v The Queen,[53] BRS v The Queen,[54] KRM v The Queen,[55] R v Colby,[56] R v MM,[57] R v Conley,[58] R v T,[59] R v Mateiasevici.[60] If applicable a “separate consideration” direction might also be called for: KRM v The Queen,[61] R v Schlaefer,[62] and at possibly also a “two complaints warning”: R v Mitchell,[63] R v Anderson.[64]
[53] (1998) 194 CLR 106 at 132 [76]
[54] (1997) (191) CLR 275 at CLR 331-332
[55] (2001) 206 CLR 221, 234 [36]
[56] [1999] NSWCCA 261 at [132]
[57] (2000) 112 A Crim R (519)(NSW)
[58] (1982) 30 SASR 226, 231; 6 A Crim R5 1,55
[59] (1999) 74 SASR 486, 504-505 [77-78]
[60] [1999] 3VR 185 at [28-29]
[61] (2001) 206 CLR 221 at 227-228 [19] and 240 [55]
[62] (1984) 37 SASR 207, 210
[63] (Unreported) CCA (NSW), 5 April 1995 BC9504682) at 4 per Gleeson CJ
[64] (1973) 5 SASR 256 at 266
Provisional ruling only
Of course things may change at the trial. The evidence may fall differently than appears from the depositions; the complainants may not “come up to proof” in which case “cross-admissibility” on the basis of coincidence might require reconsideration, or the similarities might come out in evidence as even more marked, in which event the trial judge might allow the evidence on a “similar fact” or “tendency” basis. Equally the accused might put identity in issue, or at the other extreme he might fully admit the “truth and dare” games and yet claim innocent explanation or association. On the former contingency, once again it would be open to the trial judge to reconsider the basis on which the evidence could be used by the jury and in the latter the current limited basis of receiving the evidence would appear more soundly based. As things presently stand, the applications for severance are refused.
The alternative defence submission
The alternative submission was to sever the counts relating to the first complainant from those of the two brothers. The problem with this solution is that exactly the same considerations apply to this evidence, as with the other two complainants. There is no separate reason in principle to sever. It is the probabilities against three young boys separately reporting similar events in similar terms, that underpins the basis of admission in the first place: R v Sims.[65] Further, the necessary high degree of cogency would be undermined by severance of the evidence of one complainant and it would be as artificial as it would be unprincipled to do so.
[65] [1946] KB 531, 539-540
I note defence counsel did not press an earlier submission for severance of counts 3 and 4 alone.