Stickland v The Queen - [2002] WASCA 339

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STICKLAND -v- THE QUEEN [2002] WASCA 339

CORAM: MALCOLM CJ
WALLWORK J
STEYTLER J

HEARD: 13 & 14 MAY 2002

DELIVERED : 11 DECEMBER 2002

FILE NO/S: CCA 158 of 2001

BETWEEN: DELVILLE JAMES STICKLAND
Applicant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 16 of 2002

BETWEEN :THE QUEEN
Applicant
AND
DELVILLE JAMES STICKLAND
Respondent

FILE NO/S :CCA 17 of 2002

BETWEEN :DELVILLE JAMES STICKLAND
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal Practice and Procedure - Indictment - Joinder of counts and joint trial - 63 counts involving nine complainants - 34 counts of indecent dealing - 18 counts of indecent assault and 15 counts of gross indecency with a male - Applicant convicted of 20 counts of indecent dealing, 6 counts of indecent assault and 15 counts of gross indecency - Whether and to what extent separate trials should have been ordered in respect of the alleged offences - Whether and to what extent reliance was placed on similar fact evidence - Similar facts relied upon disputed - Whether and to what extent the applicant was prejudiced by joinder - Whether there was a reasonable possibility of concoction either at the time that an order was made for joint trials or in the light of the evidence given at the trial

Legislation:

Criminal Code (WA), s 183, s 194, s 315

Result:

Appeal allowed
Convictions quashed

Category: A

Representation:

CCA 158 of 2001

Counsel:

Applicant: Mr T F Percy QC & Mr N J Mullany
Respondent: Mr R E Cock QC & Mr D T Scully

Solicitors:

Applicant: Butcher Paull & Calder
Respondent: State Director of Public Prosecutions

CCA 16 of 2002

Counsel:

Applicant: Mr R E Cock QC & Mr D T Scully
Respondent: Mr T F Percy QC & Mr N J Mullany

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Butcher Paull & Calder

CCA 17 of 2002

Counsel:

Applicant: Mr T F Percy QC & Mr N J Mullany
Respondent: Mr R E Cock QC & Mr D T Scully

Solicitors:

Applicant: Butcher Paull & Calder
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Appleby (1996) 88 A Crim R 456
Bolkiah (Prince Jefrie) v KPMG (A Firm) [1999] 2 AC 222
BRS v The Queen (1997) 191 CLR 275
Dalla Volta v The Queen, unreported; CCA SCt of WA; Library No 930118; 5 March 1993
De Jesus v The Queen (1986) 68 ALR 1
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Freshwater v The Queen, unreported; CCA SCt of WA; Library No 940386; 12 July 1994
Gipp v The Queen (1998) 194 CLR 106
Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
Hoch v The Queen (1988) 165 CLR 292
Hudson (1952) 36 Cr App R 94
Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
M v The Queen, unreported; CCA SCt of WA; Library No 980452; 12 August 1998
MacKenzie v The Queen (1996) 190 CLR 348
McCormish v The Queen, unreported; CCA SCt of WA; Library No 980529, 16 September 1998
Newman v Phillips Fox [1999] WASC 171; (1999) 21 WAR 309
Pfennig v The Queen (1995) 182 CLR 461
R v Asplin [1999] WASCA 148
R v Boardman [1975] AC 421
R v Correia (1996) 15 WAR 95
Spiteri v The Queen [2001] WASCA 82
The Queen v DJS [2000] WADC 43
Von Porebski v The Queen [1999] WASCA 15
Winning v The Queen [2002] WASCA 44

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against conviction and an application for leave to appeal against sentence. There is also a Crown appeal against sentence. The applicant's application for leave to appeal against sentence and the Crown's appeal are yet to be heard.
On 1 November 2001 the applicant was convicted after trial in the District Court at Perth before O'Sullivan DCJ on 20 counts of indecent dealing contrary to s 183 of the Criminal Code as it stood at the material time, six counts of indecent assault contrary to s 315 of the Code and 15 counts of gross indecency with a male person contrary to s 184 of the Code. The applicant was sentenced on 21 December 2001 to terms of imprisonment totalling 12 years. No sentences were imposed in respect of the 15 convictions for gross indecency.
The indictment contained some 63 counts, being 34 counts of offences against s 183, 18 counts of offences against s 184 and 11 counts of offences against s 315 of the Code. There were nine different complainants. It follows that the applicant was convicted of 20 of the 34 counts of indecent dealing, 6 of the 18 counts of indecent assault and all 15 of the counts of gross indecency. In the result, the applicant was convicted of 41 of the 63 counts on the indictment.
The grounds on which the applicant seeks leave to appeal against his convictions are:
"1.The learned Trial Judge erred in failing to discharge the jury when it had become clear on the evidence that there was a real possibility that a number of complainants had concocted their evidence.
2.His Honour [Judge] Macknay erred in ordering joint trials of the Court [sic counts] relating to each of the nine complainants.
3.The verdicts of the Jury or [sic on] the counts where the Accused was convicted were unsafe and unsatisfactory in that they were inconsistent with the verdicts of acquittal returned by them."
Logically, the grounds should be considered by examining ground 2 first, followed by grounds 1 and 3.

Ground 2: Separate trials

The question raised by ground 2 is whether there should have been separate trials of the counts involving each of the respective complainants referred to in the indictment or, at the least, separate trials of different groups of complainants where reliance was placed upon the same similar fact evidence. It was not contended that there should have been separate trials of the individual counts involving each of the complainants. The issue raised by the ground in the context of s 585 is whether the applicant was likely to be prejudiced by the joinder and the prosecutor should have been called upon to elect upon which of the offences charged in the indictment he would proceed, or the Judge should have directed that the trial of the applicant upon each, some or all of the charges should be heard separately.
This ground has to be considered in the light of the evidence and materials as they stood prior to the commencement of the trial when Macknay DCJ heard the application. These materials substantially comprised the depositions and the transcript of the committal proceedings.
The starting point is that each count charged the commission of a criminal offence and, unless the evidence in respect of each offence was admissible in relation to the other offences charged, separate trials should be ordered: Hoch v The Queen (1988) 165 CLR 292 at 294 per Mason CJ, Wilson and Gaudron JJ; Pfennig v The Queen (1995) 182 CLR 461; De Jesus v The Queen (1986) 68 ALR 1. These decisions have been considered and applied in this State in a number of cases, including Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997; and Von Porebski v The Queen [1999] WASCA 15.
In the present case, the direct evidence of the commission of each offence charged was held to be admissible as similar fact evidence in respect of the other offences charged, and an application for separate trials was refused by Macknay DCJ: The Queen v DJS [2000] WADC 43. It was not contended that the 63 counts in the indictment were improperly joined, having regard to s 585 of the Code. The sole issue was whether there should have been separate trials of the offences involving each of the respective complainants.
As already mentioned, there were nine complainants, who were referred to as RM, DN, AL, WM, DD, AD, RB, SM and AM respectively. Those persons, and the counts relevant to them and the respective verdicts, were:
Complainant                Count        Verdict
RM1                Guilty
DN2                Not guilty
AL3 – 6           Guilty 5, 6; Not guilty 3, 4
WM7 – 24         Guilty 7 – 12, 15 – 17, 22 – 24;
Not guilty 13, 14, 18, 19, 20, 21
DD25 – 27       Guilty
AD28 – 31       Guilty 30, 31; Not guilty 28, 29
RB32 – 41       Guilty 32 – 36, 39;
Not guilty 37, 38, 40, 41
SM42 – 57       Guilty 43 – 48, 50, 51, 53, 54, 56;
Not guilty 42, 49, 52, 55, 57
AM58 – 63       Guilty 58, 60, 62, 63;
Not guilty 59, 61
Section 585 of the Code provides that:
"Except as hereinafter stated, an indictment must charge one offence only, and not 2 or more offences:
Provided that when several distinct indictable offences form or are part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or admitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.
In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.
But if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately."
It was contended on behalf of the applicant before Macknay DCJ that a joint trial of the counts would prejudice the applicant so that an order for separate trials should be made of all of the counts 1 – 41 in respect of the offences alleged by the various complainants. It was conceded that a joint trial was appropriate in respect of counts 42 – 63 involving the complainants SM and AM.
The Crown's contention before the learned Judge was that there were a number of matters common to at least some of the offences, such that there was a "striking similarity" between them, so that the evidence of each of the complainants was admissible as similar fact evidence on the trial of the applicant on the other counts involving each of the other complainants.
As the learned Judge noted in pars [11] – [12] of his reasons:
"Although the accused is prepared, through senior counsel, to concede that there are some counts with common features, it is said that is not the case in relation to others, and there is a lack of the similarity required to justify a reception of the evidence as that containing similar facts, in circumstances where the reception of the evidence would be highly prejudicial to the accused.
Further, the accused says that given the circumstances of the alleged offences and the antecedents of the complainants that there is a reasonable possibility of concoction, and that is sufficient to exclude the reception of the evidence as similar fact evidence."
His Honour then referred to Hoch, Pfennig, Hamilton and Von Porebski, supra. In particular, at [15], his Honour cited the following passage in my judgment in Von Porebski (with which Ipp J agreed) at [3] – [6], namely:
"3So far as the similar fact evidence is concerned, such evidence may be admissible if, and only if it tends to show that an accused person is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. In Hoch v The Queen (1988) 165 CLR 292 at 294 Mason CJ, Wilson and Gaudron JJ said:
'The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged: see Dixon J's discussion in Martin v Osborne (1936) 55 CLR 367 at 375. In that same case [at 385] Evatt J pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for "admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence".
Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force … That strength lies in the fact that the evidence reveals "striking similarities", "unusual features", "underlying unity", "system" or "pattern" such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.'
4In Pfennig v The Queen (1995) 182 CLR 461 at 482 Mason CJ, Deane and Dawson JJ said of the above passage:
'This passage should not be understood as asserting that "striking similarities" or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.
An important distinction is to be drawn between cases such as the present case in which the "similar facts" are not in dispute and cases in which such facts are in dispute.'
5Their Honours then referred to the statement by Mason CJ, Wilson and Gaudron JJ in Hoch at 294-295 that:
'Where the happening of the matter said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.'
6In this case the similar fact evidence was disputed. In Pfennig at 482 Mason CJ, Wilson and Gaudron JJ said:
'Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged … The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such but because it has a prejudicial capacity of a high order the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (Hoch (1988) 165 CLR at 296 … see also Harriman (1989) 167 CLR at 602). Here "rational" must be taken to mean "reasonable" (see Peacock v The King (1911) 13 CLR 619 at 634; Plomp v The Queen (1963) 110 CLR 234 at 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.
In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence.' "
In Hoch at 295 – 296, Mason CJ, Wilson and Gaudron JJ said:
"Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association R. v. Sims ([1946] KB 531) or as corroboration Reg. v. Kilbourne ([1973] AC 729, at pp 749, 751 and 758) but the better view would seem to be that it is, relevant to prove the commission of the disputed acts. See Boardman ([1975] AC at p 452), per Lord Hailsham at p 452 and Lord Cross at p 458; Sutton ((1984) 152 CLR at pp556‑557) per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well known passage in the speech of Lord Wilberforce in Boardman, ([1975] AC at p 444):
'This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.'
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims ([1946] KB at 140), at p 540; Boardman, at pp 439 and 459-460. See also Rupert Cross, 'R. v. Sims in England and the Commonwealth', Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.
This appears not to have been appreciated in Johannsen v. The Queen ((1977) 65 CrAppR 101) and Reg. v. Scarrott (1978 QB 1016), but it is implicit in the observation of Lord Wilberforce in Boardman (at p 444) that 'something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed.' His Lordship added:
'This is well illustrated by Reg. v. Kilbourne ([1973] AC 729) where the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out.' (Original emphasis.)
His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right. Similar fact evidence is circumstantial evidence, as is implicit in what was said by Dixon J. in Martin (at p 375) and as pointed out by Dawson J. in Sutton (at pp 563-564). In Sutton (at p 564) Dawson J. expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused."
Their Honours went on to point out at 296 that in such cases similar fact evidence has two functions. First, as circumstantial evidence, it serves to corroborate or confirm the "veracity", namely, the truth of the evidence given by other complainants. Secondly, again as circumstantial evidence it tends to prove the happening of the event or events in issue. In relation to both functions, because the evidence is circumstantial, it has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In that context, their Honours also said at 296 – 297:
"In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.
Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction."

In the present case, some of the similar facts were not in dispute. These included the facts that the applicant was the local scout master, as well as a store keeper, and the complainants were members of the local scout group, some of whom were also employees at the local store managed by the applicant. There were numerous occasions when the applicant was alone with one or other of the complainants at times when the alleged offences were said to have taken place.
It is against that background that the disputed evidence of the sexual misconduct of the applicant falls to be considered. The conundrum faced by the Court in a case like this is that, the more remarkably similar the stories are, the more it could be argued that this is suggestive of the possibility of collusion and concoction.
In BRS v The Queen (1997) 191 CLR 275 at 298 – 299, Gaudron J outlined the basis upon which similar fact evidence was admissible. In particular, her Honour said at 299:
"Evidence of conduct on other occasions has special probative force or cogency in relation to the possibility of concoction only if it discloses some feature which renders it improbable that two or more persons would give an account of particular conduct if that conduct did not, in fact, occur. Or to put the matter in terms used in Boardman v Director of Public Prosecutions [1975] AC at 461 per Lord Cross of Chelsea, it has probative force or cogency if there are 'features common to the … stories which … two liars concocting false stories independently of one another would have been unlikely to hit upon'."
In Von Porebski at [10] I also adopted the following passage from the judgment of Gaudron J in Gipp v The Queen (1998) 194 CLR 106 at [9] – [10]:
"[9]There are occasions when evidence of criminal conduct other than that charged is admissible in proof of an offence because it raises the objective improbability of that offence bearing an explanation consistent with the accused's innocence of that offence. Evidence of that kind is usually called 'similar fact' or 'propensity' evidence and has a special probative value because, for example, it is highly improbable that persons would concoct the same story (Hoch v The Queen (1988) 165 CLR 292 at 295‑296, per Mason CJ, Wilson and Gaudron JJ)or because it reveals some idiosyncratic or peculiar modus operandi which makes it highly probable that the acts in question were all committed by the same person.
[10]On other occasions, evidence of other criminal conduct may be admissible because, when taken in conjunction with other evidence, it is probative of the offence charged. Thus, evidence of previous acts of incest was admissible in R v Ball ([1911] AC 47) because, taken 'together with evidence ... that [the defendants] slept in the same bed, [that evidence] made it likely that incest took place between the dates charged in the indictment' (Harriman v The Queen (1989) 167 CLR 590 at 631 per McHugh J, explaining the decision in R v Ball [1911] AC 47). And evidence of other criminal or reprehensible conduct is sometimes admissible because it is relevant to a subsidiary issue that arises in the trial. Thus, for example, evidence of morally blameworthy conduct was led by the prosecution in BRS v The Queen ((1997) 191 CLR 275) to counter evidence of good character to be called in the defence case. So, too, evidence of a prior conviction for sexual molestation of the complainant was admissible in the defence case in B v The Queen ((1992) 175 CLR 599) because 'an important element of [the] defence [was] that [the complainant] had made false allegations with a view to taking advantage of [the appellant's] past conduct' (B v The Queen (1992) 175 CLR 599 at 602, per Mason CJ). However, where evidence of blameworthy conduct or of an offence committed on some other occasion is admitted because it is relevant to some subsidiary issue, the trial judge must instruct the jury as to the limited use that they may make of that evidence (BRS v The Queen (1997) 191 CLR 275 at 293‑294, per Toohey J; at 301‑302, per Gaudron J; at 305‑310, per McHugh J; and at 326‑332, per Kirby J). "
Counsel for the applicant contended that it had always been the applicant's position that there was a significant possibility that the evidence of various complainants had been concocted and/or that there was a significant possibility of collusion between a number of the complainants. In this connection it is of some significance that the learned trial Judge, in his reasons for rejecting the application for severance, said at par [92]:
"Although no allusion was made to that issue in the written submissions filed in support of the accused's application, senior counsel orally submitted that there was a high probability of concoction here."
The learned Judge heard submissions in relation to the issue of joint trials on 4 February 2000 and delivered written reasons for his ruling on 14 February 2000. His Honour noted that the principal actors resided in or near the town of Harvey when initial meetings occurred. The applicant was the manager of a store in Harvey sequentially known as Wesfarmers, Farmers or Charlie Carters and was also a leader of a scout troupe in Harvey.
His Honour then set out a summary of the relevant circumstances surrounding the commission of the offences alleged by the various complainants. This was based on the materials in the Crown brief and the proceedings at a preliminary hearing before a Magistrate.

Striking similarity

In support of the joinder of the various counts, the Crown put forward a chart the basis of which submitted that there were several relevant areas, each of which demonstrated a striking similarity sufficient to justify the joinder of the counts.
Count 1 alleged that on a date unknown between 17 December 1980 and 1 January 1983 at Harvey, the applicant unlawfully and indecently dealt with RM, a child under the age of 14 years by fondling his penis. The applicant was found guilty of this offence. RM was a member of cubs and later scouts. He was 12 or 13 when he joined the scouts. He was employed at the store from age 10 or 11.
RM's evidence was that in about 1979 he went to the applicant's house where he watched a video for 20 minutes to half an hour. He was aged 12 or 13 at the relevant time. He joined the scouts as a cub and joined the scouts when he was 12 or 13. The applicant had offered him a job at the store. RM worked at the store from age 11 to when he was approximately 20. The video was not a pornographic video. He sat with the applicant to watch the video. He was sitting on a couch. The applicant was sitting on a "brown recliner rocker". The applicant then asked RM to come and sit on his lap, which he did. The applicant then slid his hand into RM's pants. RM was wearing jeans and underwear. The applicant touched his penis and stroked it or patted it. He asked RM whether he had ever masturbated. RM replied "No". The touching lasted more than a couple of seconds. RM got off the applicant's lap and moved back to the couch. He said that sometime after that the applicant's wife came home and he left and went home. He did not tell anyone about it on that day. He could not remember whether there was anyone at home when he went home. The Crown case was that the age of RM, sitting on the applicant's lap, fondling the penis, watching a video and the use of the recliner rocker by the applicant were points of striking similarity.
In the case of DN, a count of indecent dealing by the applicant, the subject of count 2, of which the verdict was not guilty, he related an incident in the scout hall at Harvey. DN was aged between 11 and 13 at the time. The incident was alleged to have occurred some time between 31 December 1981 and 5 October 1984. The applicant was the manager of the Charlie Carters store in Harvey when DN was aged about 12. The name of the store later changed to Wesfarmers store and the Farmers' Store. DN was a close friend of RB who was the same age and also worked at the store. He also knew AM and SM who worked at the store. AM was two years older than him and SM was a year or two older than that. He went to scouts on Wednesday nights. DN's evidence was that on one occasion, when he was alone with the applicant at the scout hall, he was "fondled" and "masturbated" by the applicant in about 1983 or 1984. He had gone to the scout hall with the applicant in his blue Torana motor vehicle. He recalled being asked to climb up onto the bench in the kitchen and lie down. His pants were removed. He was not sure how. They were shorts and were pulled down to his ankles. He described being "masturbated" by the applicant, who was trying to get him to achieve orgasm. It lasted for 10 to 15 minutes. He said that he wanted to see DN's "spunk". The word stuck in his mind because of that. Afterwards, they went back to the supermarket. The applicant told him not to tell anyone about it. DN joined the scouts as a cub when he was aged 8 and became a scout when he was about 12. The Crown contended that DN's age, the fact that he was a scout, the fondling of his penis, the applicant's statement that he wanted to see DN's "spunk", the occurrence of the offence on a bench or table at the Scout hall and his evidence that his pants were pulled down to his ankles were points of striking similarity.
AL was the complainant in respect of counts 3 to 6. He was aged 12 to 13 at the relevant time. He had joined the cubs when he was 9 or 10 and graduated to scouts when he was about 11. In respect of counts 3 and 4 the verdict was not guilty. The applicant was convicted of counts 5 and 6. All of the offences alleged were said to have occurred in 1980 when he was aged 12-13. Counts 3 and 4 involved the applicant fondling AL's penis. The applicant had pulled his pants down to his ankles. Count 3 was said to have occurred at a scout camp near a campfire at Koombana Bay Caravan Park near Bunbury. Count 4 was said to have occurred when he was with the applicant in a "family type sedan" which was "perhaps" a Commodore. In respect of counts 5 and 6 the verdict was guilty. Count 5 alleged that on a date unknown between 10 October 1978 and 11 October 1981 at Harvey, the applicant indecently dealt with AL by fondling his penis. Count 6 alleged that on a date unknown in the same period, the applicant unlawfully and indecently dealt with AL by sucking his penis. As to count 5, AL said that on one occasion when he was in Year 8 at high school he went with his mother and his sister to Wesfarmers store where the applicant was working. While they were at the store the applicant asked his mother if AL could help him out with something at the scout hall. This was agreed and the applicant said he would drop AL back home later. When they got to the scout hall they went into a separate storeroom. When they got inside the applicant asked him to turn round so that they were facing one another. The applicant went down on his knees and unzipped AL's fly. AL was in his school uniform. The applicant took AL's penis out, put it in his mouth and sucked on it until AL ejaculated into his mouth. Afterwards when he had got dressed and went out to the applicant's vehicle, the applicant asked him if he wanted a lift home. AL said he would walk home, which he did.
The offence the subject of count 6 occurred within a month of the offence the subject of count 5. It was alleged that on a date unknown between 10 October 1978 and 11 October 1981 at Harvey, the applicant unlawfully and indecently dealt with AL, a child under the age of 14 years by sucking his penis. AL said that he was once again in the storeroom at the scout hall. He was lying on the floor underneath the storeroom window. He had been asked to lie down by the applicant. The applicant unbuckled his pants and pulled them down so that they were about his knees. The applicant then performed oral sex on him until he ejaculated into the applicant's mouth. The Crown contended that the oral sex, ejaculation into the applicant's mouth, pulling down his pants to expose AL's penis and the use of the storeroom at the Scout hall were striking similarities combined with the applicant's age and membership of the scouts.
In the case of WM, he was aged 10 or 11 when the offences the subject of counts 7 to 10 were said to have been committed in about 1981 ‑ 1984. WM went to cubs a couple of times before joining the scouts when he was 11 or 12. He was employed at the store from age 10 or 11, but only for a short time. The offences alleged in counts 7 and 8 were said to have occurred when WM was lying on the bench in the inquiry room at the Farmers' Store. Both of the offences of unlawful and indecent dealing occurred on the same day. WM was working in the store. WM's trousers were pulled down to his ankles or knees in each case. There was fondling of the penis which was the subject of count 7 followed by oral sex by sucking WM's penis the subject of count 8.
As to counts 9 and 10, WM said that he was shown a pornographic video entitled Star Virgin prior to the offence being committed. This happened in the "smoko" room which was in a separate building at the back of the store, then called the "Farmers' Store". WM was employed there after school on Friday afternoons and Saturday mornings. He started with the scouts when he was 11 or 12 and was involved with them for a year or a year and a half. The applicant was the scout leader. The applicant drove a blue Torana and a Land Rover utility. On a Saturday afternoon after work in about 1981 or 1982 an incident occurred in the smoko room when the applicant wheeled a TV and video out into the room. WM was then shown the video which he described as "the first porno" he had ever seen and which was "pretty explicit" in a sexual way. They were both sitting on chairs. While they were watching the video the applicant started fondling him, took his pants down to the knees or ankles and started sucking his penis. The fondling was on the outside. He could not remember whether they were then sitting on the same chair. His jeans were pulled down to his knees or ankles. He was then lying on the floor. He was on the floor when the applicant was sucking his penis. The applicant was then kneeling over him. The applicant also masturbated himself at the same time. WM saw him ejaculate. The fondling of WM's penis was the subject of count 9 and the sucking of his penis was the subject of count 10. The Crown contended that WM's age when the offending began, WM's membership of the scouts, his employment at the store, the nature of the offences and the circumstances were similar facts.
The offences alleged in counts 11 and 12 were each counts of unlawfully and indecently dealing with WM, a child under the age of 14 years on a date unknown between 3 September 1982 and 4 September 1984 at Harvey. The applicant was convicted on both counts. WM said that the offences occurred when he was aged 11 or 12. Count 11 alleged indecent dealing by the applicant fondling WM's penis and count 12 alleged oral sex by the applicant sucking WM's penis. The applicant pulled his pants down to his ankles or his knees. The applicant masturbated himself and scuffed semen into the floor. Both offences occurred in the liquor section of the store. All these matters were relied upon as similar facts, together with WM's pants being pulled down to his knees or ankles.
The applicant was acquitted of counts 13 and 14. WM said that these alleged offences occurred when he was aged 11 to 14. He said that the applicant fondled his penis and then engaged in oral sex by sucking his penis. The applicant pulled his pants down to his ankles or his knees. WM was not sure whether he ejaculated into the applicant's mouth. The applicant had masturbated himself. It was not suggested that semen had been scuffed into the floor. The offences were committed while WM was on the stage at the Scout hall.
The offences the subject of counts 15 and 16 of which the applicant was convicted were said to have occurred when WM was aged about 12. Count 15 alleged an unlawful and indecent assault at Harvey by the applicant fondling WM's penis. The applicant fondled WM's genitals on the outside of his clothing for about two minutes. Count 16 alleged that on the same occasion the applicant committed an act of gross indecency on WM by sucking his penis. It was not suggested that WM ejaculated into the applicant's mouth. WM said that the applicant masturbated himself. He then scuffed ejaculated semen into the floor. These offences were said to have occurred while WM was lying on a bench at the SES hall.
The applicant was convicted of count 17 which alleged the commission of an act of gross indecency on WM by the applicant sucking his penis. The offence was said to have occurred at Harvey when WM was aged between 12 and 14. The applicant pulled his pants down to his ankles or his knees. The applicant was said to have fondled WM's penis and engaged in oral sex by sucking WM's penis. It was not alleged that WM ejaculated into the applicant's mouth. The applicant masturbated himself. It was not alleged that he scuffed semen into the floor. The offence was said to have been committed when WM was lying on the bench in the kitchen at the Scout hall.
The applicant was acquitted of the offences alleged in counts 18 and 19. Both offences were said to have been committed in the back lounge room of the applicant's house in Harvey. Count 18 alleged that the applicant had unlawfully and indecently assaulted WM by fondling his penis. Count 19 alleged that the applicant had committed an act of gross indecency on WM by sucking his penis. WM said that the offences occurred when he was aged 11 or 12. It was not alleged that WM ejaculated into the applicant's mouth. It was alleged that the applicant masturbated himself and scuffed semen into the floor. WM was shown a video but it was not pornographic.
The applicant was acquitted of counts 20 and 21. The applicant was alleged in count 20 to have committed an indecent assault on WM at Cookernup. The offence was alleged to have involved the applicant fondling WM's penis. The offence in count 21 alleged an act of gross indecency by sucking WM's penis. WM was aged 13 or 14 at the time. WM's evidence was that the applicant masturbated himself until he ejaculated onto gravel at the side of the road. There was no evidence regarding the extent, if any, to which his pants were pulled down. The two offences were said to have occurred in the applicant's new VL White Commodore motor vehicle.
The applicant was found guilty of count 22 which was said to have occurred when WM was aged between 13 and 15. The applicant was alleged to have fondled WM's penis and engaged in oral sex, but not to have ejaculated into the applicant's mouth. The applicant was said to have ejaculated and scuffed the semen into the floor. WM's pants had been pulled down to his ankles. This offence was alleged to have occurred between 31 December 1983 and 4 September 1986 in a room at the Waroona Hotel.
Count 23 alleged that on a date unknown between 3 September 1984 and 1 January 1987 at Harvey, the applicant committed an act of gross indecency with WM by sucking his penis. The offence was said to have occurred when WM was aged between 14 and 16. The applicant was alleged to have fondled WM's penis, had oral sex by sucking WM's penis until he ejaculated into the applicant's mouth. At the same time, the applicant masturbated himself. When the applicant ejaculated, he scuffed the semen into the floor. WM told the police he had consumed alcohol. He had been shown a pornographic video, the title of which he could not recall. His pants had been pulled down by the applicant, but not off. This offence was said to have taken place in a room at the Wagon Wheel Motel.

Count 24, of which the applicant was found guilty, alleged that on a date unknown between 3 September 1984 and 1 January 1987 at Harvey, the applicant committed an act of gross indecency with WM by sucking his penis. The offence was said to have occurred when WM was aged between 13 and 16. WM said the applicant sucked his penis. WM ejaculated into his mouth. At the same time, the applicant masturbated himself to ejaculation and scuffed the semen into the floor. The applicant and WM had consumed one or two cans of Emu Bitter beer. The applicant had pulled WM's pants down to his ankles. WM could not recall whether or not a video was shown. The offence occurred in a room at the Wagon Wheel Motel.
Counts 25 to 27 involved one DD. DD was not a cub or a scout. He started work at the store when he was aged about 14. Count 25 alleged that on a date unknown between 8 November 1981 and 9 November 1983 at Harvey, the applicant committed an act of gross indecency with DD by sucking his penis. DD was then aged 14. The applicant asked DD if he was getting "a hard on" from a pornographic video they were watching. The video shown was Star Virgin. DD's pants had been pulled down to his thighs. The offence occurred while DD was sitting on a brown recliner rocker chair in the back lounge room of the applicant's house at Harvey.
Count 26 alleged that on the same date and at the same place as count 25, the applicant committed a second act of gross indecency with DD by sucking his penis. In this case there was no allegation of fondling. DD was said to have ejaculated into the applicant's mouth. The applicant had said to DD, "Don't worry I will swallow." Prior to the commission of this offence, the applicant and DD had watched a pornographic video called Star Virgin. DD's pants had been pulled down to his thighs. The offence occurred while DD was sitting on a brown recliner rocker chair in the back lounge room of the applicant's house at Harvey.
Count 27 alleged that on the same date and at the same place as count 25, the applicant committed an act of gross indecency on DD by sucking his penis. There was no allegation of fondling, or that the applicant had ejaculated into DD's mouth. On this occasion, DD had been shown a pornographic video called Animal Farm. His pants had been pulled down to his thighs. This offence also occurred while DD was sitting on the brown recliner rocker chair in the back lounge room of the applicant's house in Harvey. The applicant was convicted of all three of counts 25 – 27.
Counts 28 to 31 involved AD. AD said that he started work at the store when he was aged about 9 to 10. He worked there for about a year. He was not a cub or a scout. All four offences were alleged to have been committed when AD was aged 8 to 10. Count 28 alleged that on a date unknown between 31 December 1980 and 24 December 1983 at Harvey, the applicant indecently dealt with AD, a child under the age of 14 years, by sucking his penis. Counts 29, 30 and 31 were in the same terms, except that the offence in count 29 was said to have occurred at Margaret River. Those offences were each offences of unlawful and indecent dealing with a child under the age of 14 years.
Count 28 was alleged to have occurred on a bench or table at the SES hall at Harvey. Count 29 was said to have occurred in a motel room at Margaret River. The applicant was found not guilty of the offences the subject of counts 28 and 29, but guilty of the offences the subject of counts 30 and 31.
In the case of count 28, AD was not sure whether his pants had been pulled right off, or were pulled down to around his ankles. In the case of count 29, he said his trousers had been pulled down, but not off. In the case of counts 30 and 31, both offences were said to have occurred when AD was aged between 8 and 10. In the case of count 30, AD said nothing about his pants being pulled down. In relation to count 31, AD said that his pants had been pulled down, but not off.
The offence alleged in respect of count 30 was said to have occurred on the floor in the applicant's office at the applicant's store. The offence the subject of count 31 was said to have occurred on the bench in the kitchen of the Scout hall at Harvey.
In relation to counts 32 to 41, the complainant was RB. RB started in cubs when he was aged 6 or 7. He progressed from cubs to scouts when he was aged 9 or 10 or it could have been later. He started work at the applicant's store when he was 9 and worked there for about five years until about 1984. The applicant was found guilty of the offences alleged in counts 32 to 36 and 39, but was acquitted of the offences the subject of counts 37, 38, 40 and 41. The offences the subject of counts 32 to 34 were said to have occurred when RB was aged 9. Count 32 alleged that on a date unknown between 31 December 1979 and 1 January 1981 at Harvey, the applicant indecently assaulted RB, a child under the age of 14, by fondling his penis. Count 33 alleged that on the same date and at the same place, the applicant unlawfully and indecently dealt with RB by sucking his penis.
As to count 32, RB said that the applicant fondled his penis. He was given a drink of Emu Export. The applicant asked him about masturbation and told him, "I love you like my son". Prior to the commission of the offence, he was shown a video, but it was not pornographic. His pants were pulled down but not off. The offence was committed at the applicant's store in the liquor section.
As to count 33, it was alleged that the applicant was then said to have had oral sex with RB by sucking his penis. In relation to both counts 32 and 33, he said the applicant pulled his pants down but not off. The offences in both those counts occurred on the floor in the liquor section of the applicant's store.
The offence the subject of count 34 was said to have occurred in the front living area of the applicant's house at Harvey. The applicant was said to have fondled RB's penis and then sucked it. RB's evidence was that the applicant said to him in the course of the activity, "Do you want a suck?" Before the activity commenced, the applicant showed RB a pornographic video entitled Debbie Does Dallas. The applicant pulled RB's pants down to his knees and ankles. The offence occurred while RB was sitting on the brown recliner rocker chair in the front living area of the applicant's house in Harvey.
As to count 35, it was alleged that on a date unknown between 31 December 1980 and 3 December 1984 when RB was aged 11 to 14 at Harvey, the applicant unlawfully and indecently dealt with RB by sucking his penis. RB's evidence was that the applicant had said, "Do you want a suck?" Prior to the commission of the offence, a pornographic magazine called Ribald had been taken from a desk in the SES hall and shown to RB. The applicant was described as "sweaty" and using a hanky to wipe his forehead. He masturbated himself and rubbed the semen into the floor with his shoe. RB's pants were pulled down to his ankles or knees. The offence the subject of count 35 was said to have been committed while RB was lying on a bench at the SES hall.
As to count 36, it was alleged that on a date unknown between 3 December 1980 and 3 December 1984 at Harvey, the applicant unlawfully and indecently dealt with RB, a child under the age of 14 years by sucking his penis. RB was then aged 13 or 14. The offence was preceded by the applicant retrieving the pornographic magazine Ribald from a desk in the SES hall. The applicant pulled RB's pants down to his knees or ankles.
Count 37 was alleged to have been committed at a house in Augusta and involved unlawful and indecent dealing with RB, a child under the age of 14, by sucking his penis. RB was aged 12‑14 and had been given tequila and beer. Count 38 was alleged to have been committed at Harvey. RB was said to have been aged 12 to 14 at the time. This was a count of committing an act of gross indecency on RB by sucking his penis. The applicant was alleged to have masturbated himself at the same time. The offence was alleged to have been committed on a bench in the kitchen at the Scout hall.
Count 39 was alleged to have been committed at Harvey in a room at the Wagon Wheel Motel after the applicant had left Harvey and gone to live at Attadale. RB recalled three occasions when the applicant subsequently visited Harvey on business. The first time the application telephoned RB and asked him to come to dinner at the motel. This was not long after the applicant had left Harvey. He recalled drinking a glass of wine or beer. After dinner they went to the applicant's room where they watched pornographic videos on the applicant's "porta pack" VHS video player. RB's evidence was that the applicant performed oral sex on him by sucking his penis.
The offences the subject of counts 40 and 41 were said to have been committed at the applicant's house in Attadale. The offences were said to have been committed between 31 December 1983 and 1 January 1986. Both counts alleged the commission by the applicant of an act of gross indecency on RB by the applicant sucking his penis. RB was then aged 14. As to count 40, RB could not specifically recall the applicant masturbating himself, but said that the applicant "would always masturbate when he performed oral sex on me". He said, however, that he had no actual memory of it.
RB gave evidence of a second occasion at Attadale the subject of count 41 on a Saturday, when he and the applicant were watching pornographic videos on the applicant's television. RB's evidence was that the applicant put him on a raised "ottoman kind of chair" where he performed oral sex on him while the applicant masturbated himself.
Counts 42‑57 involved SM, the brother of AM. The applicant was found guilty of the offences the subject of counts 43‑48, 50‑51, 53‑54 and 56 but not guilty of counts 42, 49, 52, 55 and 57. Count 42 was alleged to have occurred at Boranup when the applicant was said to have indecently dealt with SM by fondling his penis. SM started in cubs in the year he turned 12 and joined the scouts the following year when he was in first year high school. Within six months of joining the scouts, SM started work in the store at the age of 12 to 13. SM's evidence was that while on a scout camp in the Boranup State Forest, he was sleeping in a stone hut when the applicant reached into his sleeping bag and fondled his penis. In cross‑examination he admitted several discrepancies between his evidence at the trial compared to the preliminary hearing. For example, at the preliminary hearing his evidence was that the applicant was sleeping on his right and there was another boy within a metre. He now said that he was on the other side of the doorway. He was only able to identify the person who touched him at the trial because he saw the applicant's shape or silhouette in the moonlight. At the preliminary hearing he gave evidence that he could not see the person who touched him and could not describe the build of that person. The trial Judge gave an identification warning to the jury in relation to this particular count. In my opinion, this explains the verdict of not guilty.
Counts 43 and 44 alleged respectively that the applicant indecently dealt with SM by fondling his penis and then sucking it. Count 45 also alleged a sucking of the penis. The three offences were alleged to have occurred when SM was aged 12 or 13. This was shortly after the incident alleged in count 42. It was within a month. He was in the front lounge room of the applicant's house at Harvey. The applicant laid him down on a three‑seater lounge. He pulled down SM's tracksuit pants and underpants to his ankles. SM said that the applicant sucked his penis once and then looked up at him with "a funny silly sort of grin". SM said that the applicant fondled and then sucked his penis until he ejaculated. At the same time, the applicant masturbated himself and ejaculated onto the floor. He wiped his mouth and SM's penis with a handkerchief. He pulled up SM's pants and scuffed the carpet where he had ejaculated with his shoe.
Counts 46 and 47 alleged a fondling of SM's penis by the applicant followed by an act of gross indecency by sucking his penis. Both of these offences were alleged to have occurred on the bench or counter at the SES hall. He was then aged between 12 and 14. The applicant was said to have taken SM to the SES hall from the store. He lifted SM on to the counter inside the front door and pulled down his pants and underpants. SM was wearing his grey school uniform Levi jeans. The applicant gave SM two Ribald magazines to look at. As SM looked at them, the applicant sucked his penis until he ejaculated. At the same time, the applicant masturbated himself and ejaculated on the front of the counter. He wiped his mouth and the front of the counter. He pulled SM's pants back up and lifted him down from the counter. They walked back to the shop.
Count 48 alleged that the applicant unlawfully and indecently assaulted SM at Harvey by masturbating his penis. The offence was alleged to have occurred when SM was aged between 13 and 14. The Ribald magazine was shown again. There was a use of vaseline, and the applicant was said to have masturbated SM as well as masturbating himself. Both ejaculated. The offence took place on the counter in the secretary's office at the store. This was the occasion on which the applicant made the remark to the effect that "if [name] knew what was happening on her desk".
Count 49 resulted in a verdict of not guilty by direction.
Count 50 alleged that on the same date and at the same place, the applicant committed an act of gross indecency on SM by sucking his penis. The Ribald magazine was shown. SM's pants were pulled down but not off. The offence was said to have occurred in the applicant's Land Rover when SM was aged 13 or 14. SM said that he ejaculated into the applicant's mouth and that the applicant had masturbated himself.
Count 51 alleged an act of gross indecency against SM at Harvey by sucking his penis. The offence was said to have occurred when SM was aged 13 or 14. It involved oral sex and SM ejaculating into the applicant's mouth and the applicant masturbating himself. There were no pornographic video or magazines involved. SM's pants were pulled down but not off. The offence was said to have been committed in the applicant's Land Rover.
Count 52 alleged an offence of gross indecency at Boranup with SM by sucking his penis. This was also said to have occurred in the applicant's Land Rover when SM was aged 13 or 14. It was said to have involved oral sex, SM ejaculating into the applicant's mouth and the applicant masturbating himself.
Count 53 alleged an offence in the renovated lounge room in the applicant's house at Harvey on a date unknown between 27 June 1980 and 1 January 1982 when the applicant unlawfully and indecently assaulted SM by fondling his penis. Count 54 alleged that on the same date and at the same place, the applicant had oral sex with SM who ejaculated into the applicant's mouth, while the applicant masturbated himself to ejaculation and scuffed semen into the floor.
Count 55 alleged that on a date unknown between 27 June 1980 and 1 January 1982 in the new lounge room in the applicant's house at Harvey, the applicant unlawfully and indecently assaulted SM by fondling his penis. A verdict of not guilty by direction of the trial Judge was reached on this count.
Count 56, of which the applicant was convicted, alleged that on the same date and at the same place as in count 55, the applicant committed an act of gross indecency with SM by sucking his penis. SM was then aged 13 or 14. The offence involved oral sex which was interrupted by the return of the applicant's wife. The applicant had shown SM the pornographic magazine Ribald and pulled SM's pants down to his ankles.
Count 57, in respect of which there was a verdict of acquittal, alleged an act of gross indecency against the applicant by sucking SM's penis while in a tent at Nannup. SM ejaculated into the applicant's mouth.
AM, who was SM's brother, was the complainant in respect of counts 58 to 63. Count 58 alleged that on a date unknown between 27 November 1978 and 28 November 1981 at Harvey, the applicant indecently dealt with AM by fondling his penis. AM was aged 10 or 11 at the time. AM said that the applicant fondled his penis and told him what a good boy he was. The offence occurred when AM was sitting on the applicant's knee on the brown recliner chair in the lounge room o the applicant's house at Harvey.
The applicant was acquitted of count 59 which alleged that the applicant unlawfully and indecently dealt with AM by sucking his penis. The applicant was convicted of count 60 which was committed at Harvey when AM was aged 12 to 14 and involved an unlawful and indecent assault by fondling his penis. The offence occurred when AM was sitting on the applicant's lap in his car.
The applicant was acquitted of count 61, an alleged offence of unlawful and indecent assault by fondling AM's penis, while they were in the applicant's car at Harvey.
The applicant was convicted of count 62 which alleged an unlawful and indecent assault on AM between 27 November 1981 and 28 November 1983 at Harvey by fondling his penis. He was also convicted of a further offence on the same date the subject of count 63 which alleged that the applicant committed an act of gross indecency on AM by sucking his penis. The applicant was convicted of both offences. AM was then aged about 14. Both offences were committed at the SES hall in Harvey. AM was given a pornographic magazine. The applicant undid his shorts and pulled them down. He fondled AM's penis and then sucked on it until AM started sobbing.

Pornographic videos and magazines

If one accepts that showing the complainants pornographic material prior to the commencement of an offence was a category of similar facts of striking similarity in the present context, the pornographic video Star Virgin was shown to WM in respect of counts 9 and 10 of which the applicant was convicted. An unnamed pornographic video was shown to WM in respect of count 23 of which the applicant was convicted. Star Virgin was shown to DD in respect of counts 25 and 26 of which the applicant was convicted. Another pornographic video, Animal Farm, was shown to DD in respect of count 27 of which the applicant was convicted. RB was shown a pornographic video, Debbie Does Dallas, in respect of count 34 of which the applicant was convicted. He was also shown an unknown pornographic video in respect of counts 39 and 41. The applicant was convicted of count 39 although the verdict was not guilty in respect of count 41. Star Virgin was shown to SM in relation to counts 53 and 54 of which the applicant was convicted.
A pornographic magazine called Ribald was shown to WM in respect of count 17 of which the applicant was convicted. This was also shown to RB in respect of counts 35 and 36 of which the applicant was convicted and was alleged to have been shown in relation to count 38 in respect of which the applicant was acquitted. Ribald was also shown to SM in respect of counts 47, 48, 50 and 56 of which the applicant was convicted. It was also shown to AM in respect of counts 62 and 63 of which the applicant was convicted.
In the case of WM the pornographic magazine shown prior to the commission of count 17 was said to have been retrieved from behind a mirror or coat rack near the ladies' toilet. The same magazine was said to have been retrieved from the same place in the case of RB in relation to the offence the subject of count 38. SM gave evidence to the same effect, but not related to any particular count.

Pants Pulled down

In relation to count 2, DN said his pants were pulled down by the applicant to his ankles. In relation to AL he said his pants were pulled down enough to expose his penis. In relation to count 6 his pants were pulled down to his knees.

WM said that in relation to each of counts 7 – 17 his pants were pulled down to his ankles or knees. In relation to counts 18, 19, 22 and 24, he said that his pants were pulled down to his ankles. In relation to count 23 he said his pants were pulled down but not off.
In relation to counts 25 – 27 DD said his pants had been pulled down to his thighs. In relation to counts 29 – 31 AD said his pants had been pulled down but not off, and in the case of count 28 said that he was not sure whether the pants were pulled off or down to around his ankles. In relation to counts 32 and 33, RB said that his pants were pulled down, but not off, and, in relation to counts 34 – 36 his pants were pulled down to his knees or ankles. In relation to count 38 he said his pants were pulled down but not off. In relation to counts 43 – 48 SM said that his pants had been pulled down to his ankles and, in relation to count 50, he said they had been pulled down but not off. In relation to counts 53, 54 and 56 he said his pants had been pulled down to his ankles.
AM said that, in relation to counts 62 and 63, his pants had been pulled down but not off.

Places where offences were alleged to have been committed

RM said that count 1 was committed when he was sitting on the applicant's lap in the house while they were on a brown recliner chair. DD said that counts 25, 26 and 27 were committed when he was on the brown recliner. RB said that count 34 was committed while he was on the brown recliner. SM said that counts 53 and 54 were committed while he was on the brown recliner and AM said that count 58 was likewise committed while he was on the brown recliner.
Counts 2, 7, 8, 15, 16, 17, 28, 31, 35, 38, 46, 47 and 48 involving DN, WM, AD, RB and SM were said to have been committed on a bench or table in the scout hall, the applicant's store or the SES hall. Of these the applicant was acquitted of counts 2, 28 and 38. A number of offences occurred at the applicant's Harvey house in the family room, back lounge room, front living area or lounge room. A number of offences involving AM, AL, WM and SM were said to have occurred in one or other of the applicant's vehicles.
AL said that count 5 occurred in a storeroom at the Scout hall. AL said that count 6 also occurred in the storeroom at the Scout hall.
WM said that counts 9 and 10 occurred in "the smoko" room at the Farmers' Store and counts 11 and 12 occurred in the liquor section of the store, count 10 was on the floor in "the smoko" room and count 12 was on the floor in the liquor section. AD said that count 30 was committed on the floor in the applicant's office at the Farmers' Store. RB said that counts 32 and 33 were committed on the floor of the liquor section at the Farmers' Store.
Counts 13 and 14 (of which the applicant was acquitted) were said to have both occurred on the stage at the Scout hall. Count 22 was said by WM to have been committed in a room at the Waroona Hotel. Counts 23 and 24 were said by WM to have been committed in a room at the Wagon Wheel Motel in Harvey. AD said that count 29 (of which the applicant was acquitted) was committed in a motel room at Margaret River.
DD said that count 26 was committed on the desk at the SES hall. RB said that count 37 (of which the applicant was acquitted) was committed in the main bedroom of a house at Augusta. Count 39 was committed in a room at the Wagon Wheel Motel at Harvey. Count 40 (of which the applicant was acquitted) was said to have occurred in a bedroom at the applicant's house in Attadale. Count 41 (of which the applicant was acquitted) was said to have occurred in the TV room of the applicant's house in Attadale.
SM said that count 42 (of which the applicant was acquitted) was committed in a stone hut in the Boranup State Forest.

Nature of the Offences

The Crown relied on the nature of the offences themselves as similar fact evidence in each case. The allegation in count 1 involving RM was that of indecent dealing with a boy under the age of 14 by fondling his penis. The same allegation was made in respect of DN in count 2, AL in respect of counts 3 and 4 (both of which occurred on the same day) and SM in counts 42 and 48. In the latter case, however, the allegation was "masturbating" rather than "fondling". The fondling of the penis was also alleged in relation to AM, the subject of counts 58, 60, 61 and 62.
In a number of cases, the allegation was that the applicant first fondled the complainant's penis and then indecently dealt with him by sucking his penis. The relevant cases involved AL the subject of counts 5 and 6, WM, the subject of counts 7 and 8, 9 and 10, 11 and 12, 13 and 14, 15 and 16, 18 and 19, 20 and 21; RB the subject of counts 32 and 33; SM, the subject of counts 43 and 44, 46 and 47, 49 and 50, 53 and 54, 55 and 56, and AM, the subject of counts 58 and 59 and 62 and 63.
In a number of cases, there was an allegation that the applicant sucked the complainant's penis without prior fondling. These involved WM the subject of counts 17, 22, 23 and 24; DD the subject of counts 25, 26 and 27; AD the subject of counts 28, 29, 30 and 31; RB in the subject of counts 34, 35, 36, 37, 38, 39, 40 and 41; SM the subject of counts 45, 51, 52 and 57.
It is apparent from the above that there were three different categories of similar facts involved, namely, fondling the complainant's penis and no more, fondling his penis followed by sucking it and cases in which the complainant's penis was only sucked.

Ejaculation into the applicant's mouth

The Crown relied on the fact that in a number of cases, the complainant had ejaculated into the applicant's mouth as being similar facts. This allegation was made in respect of AL in counts 5 and 6, WM in respect of counts 14 (although he was "not sure"), 21, 23 and 24; DD in respect of counts 26 and 27; SM in respect of counts 45, 47, 48, 50, 51, 52, 54 and 57. No such allegation was made by WM in respect of other counts of oral sex, namely, counts 8, 10, 12, 16, 17, 19, 22; DD in respect of count 25; AD in respect of counts 28, 29, 30 and 31, RB in respect of counts 33, 34, 35, 36, 37, 38, 39, 40 and 41; SM in respect of counts 44 and 56, and AM in respect of counts 59 and 63.

The applicant masturbating himself

The Crown relied on the fact that in a number of cases it was alleged that at the time of committing the offence the applicant masturbated himself. This allegation was made in respect of WM in relation to counts 8, 10, 12, 14, 16, 17, 19, 21, 22, 23 and 24; DD in relation to count 27; RB in relation to counts 35, 38 and 41 and SM in relation to counts 42, 45, 47, 48, 50, 51, 52, 54, 56 and 57.

Words spoken to the complainant

Some reliance was placed on what was said to the relevant complainants by the applicant at the time of the commission of the relevant offence. The relevant statements were said to have been made in the cases of RM, AL, DD, RB, SM and AM. In the case of RM in the context of count 1, the applicant was said to have asked RM if he had ever masturbated. In the case of AL in the context of count 3, the applicant was said to have said to him that rubbing his penis would make it feel better. In the context of count 4 he said that AL was a "good boy" or an obliging boy. In the context of count 5 AL was said to have told the police that the applicant said that "that felt good".
In the context of count 25 in respect of which the pornographic video Star Virgin was shown, the applicant was said by DD to have asked him if he was "getting a hard on" from the video. When DD said "yes", the applicant pulled down his shorts to his thighs and sucked his penis. After a few minutes, when he was about to ejaculate, DD said "stop" to the applicant. He then got up and went to the toilet. He then went back, sat on the recliner rocker and continued watching the video. The applicant started to suck his penis again. This was the subject of count 26. It was in this context that the applicant said to him, "Don't worry, I'll swallow". The applicant then pulled his pants down again and sucked his penis while kneeling on the floor in front of the recliner until DD ejaculated.
In the context of counts 32, 33, 34 and 35, the applicant was said to have spoken to RB in terms relied upon by the Crown as similar fact evidence. In respect of count 32 at the Farmers' Store, RB said that the applicant asked him if he had touched his penis and whether he had masturbated or not. He went on to say words to the effect, "I would like to show you something special" or, "Do something special". He then said, "I love you like my son" and "Can I touch you?"
In the context of count 34, which was a subsequent occasion, again while watching a pornographic video in the living room at the back of the applicant's house in Harvey, while sitting in the recliner rocker chair sitting between the applicant's legs, the applicant fondled his penis through his pants and then performed oral sex on him by sucking his penis. On this occasion the applicant said to RB, "Do you want a suck?" RB's evidence was that he said that on many other occasions. The only other specific occasion mentioned was in relation to count 35 at the SES hall. RB's evidence was that they went there from the Farmers' Store. When they got there, the applicant said, "Do you want a suck?" The applicant then pulled RB's pants down and performed oral sex on him by sucking his penis.
The next statement by the applicant relied upon by the Crown in this context was made by SM in the context of count 48 which alleged that the applicant indecently assaulted SM by masturbating his penis. He then said words to the effect that "If [name suppressed] knew what was happening on her desk".
The final statement relied upon by the Crown as similar fact evidence in this context was in respect of count 58, which alleged that the applicant had fondled AM's penis. The statement relied on by the Crown was that the applicant had said to AM "what a good boy he was".
The applicant was sitting on the brown recliner rocker chair. He started playing with AM's penis through his pyjamas. Asked whether the applicant said anything to him, AM replied:
"There were often times he would say things to me, just sort of saying how much he liked me and what a good boy I was and stuff like that – but, yeah, that specific occasion I don’t' remember what he said to me then."
In my opinion, there was no striking similarity between the various statements made to the complainants in this context.

Alcohol

The similarities relied upon by the Crown included the provision of alcohol by the applicant to a number of complainants. WM told the police that when the offence the subject of count 23 occurred in the applicant's room at the Wagon Wheel Motel at Harvey, they watched a pornographic video. He said that there was no alcohol involved on that first occasion. A few days later there was a second occasion, the subject of count 24. At the trial he said he had thought he had one beer with the applicant on the first occasion, but he did not remember finishing it. On the second occasion, he remembered finishing a beer, leaving the room and walking home. He later said he was not sure about having beer on the first occasion.
AD's evidence was that in relation to count 29 of which the applicant was acquitted, he had a spirit type drink from a mini bar in a motel room at Margaret River. AD and the applicant were sharing a twin room.
RB's evidence in relation to count 32, which was the first of the alleged offences he could recall, was when he was at the applicant's house watching a video when he said that the applicant fondled his penis. The applicant had given him a beer, but there was no more beer in the house. They went to the Farmers' Store and obtained some beer. It was at the store that they had the conversation about masturbation and the applicant told him that he loved him "like my son" and touched his penis through his pants. RB also said in relation to count 37 at Augusta, an allegation that the applicant sucked his penis, that there was a group drinking tequila and beer. He was then aged 12 or 13 and got drunk that night, slept in the same bed as the applicant, who performed oral sex on him by sucking his penis.
In relation to count 39, RB said that he had met up with the applicant after he had left Harvey and had come back on a visit and was at the Wagon Wheel Motel. The applicant had called him and invited him to dinner at the motel. He had a glass of wine and "perhaps a beer" although there was alcohol involved. They went to the applicant's room where they watched pornographic videos and the applicant performed "oral sex" on him. This was 6 to 12 months after the applicant had left Harvey.
In the cases of RM, DN, AL, DD, SM and AM, there was no mention of the supply of alcohol. Alcohol was referred to by WM in relation to two occasions after the applicant had left Harvey. There were 12 other offences involving WM when alcohol was not involved. AD, who was the complainant in respect of four counts only mentioned alcohol in respect of count 29 of which the applicant was acquitted. RB who was the complainant in respect of ten counts mentioned alcohol in respect of only counts 32, 37 and 39. The applicant was acquitted in respect of count 37.
There was no reference to alcohol in relation to counts 1‑22, 25‑28, 30, 31, 33‑36, 38, 40‑63.
The Crown also submitted to Macknay DCJ that there were other relevant similar facts, namely:
(a)the complainants were all young boys of a similar age at the time of the offences;
(b)all but AD and DD were scouts during the time in which the applicant was the scout leader;
(c)all but DN and AL were employees of the applicant at the Wesfarmers store (or, as it was later called, Farmers or Charlie Carters);
(d)in the cases of SM, WM and DD, the applicant performed oral stimulation on the boy while masturbating himself to ejaculation on each occasion;
(e)the evidence of WM and SM that, after ejaculating, the accused rubbed the ejaculate into the floor with his shoe as well as the evidence of RB that, after the applicant masturbated, he "stomped" on the floor;
(f)the use by the applicant of the Ribald magazines, referred to by name by RB and SM and the reference to pornographic magazines by both WM and AM;
(g)the use by the applicant of pornographic videos referred to by WM, RB, DD and SM in a context in which WM and DD said the video was called Star Virgin and SM gave evidence that the video was called "Star something";
(h)six of the complainants referred to offences occurring in the applicant's home while they were seated in a brown leather/vinyl recliner rocker, namely RB, RM, DD, WM, AM and SM;
(i)the fact that five of the complainants referred to offences occurring while they were laid on a bench or counter, namely, DN, WM, AD, RB and SM;
(j)the facts that three of the complainants referred to offences occurring while they were steering the applicant's car sitting on the applicant's lap and the applicant was working the pedals, namely AM, AL and WM; AM also gave evidence that he saw SM on the applicant's lap, steering the car, and AD gave evidence that he had also steered the applicant's car while sitting on the applicant's lap, which it was contended was evidence of a "pattern of grooming" by the applicant.
Reference was also made to the fact that the scout hall, the SES hall, the store and the lounge room of the applicant's house as the places where offences were committed was a common thread in the allegations.
In my opinion, it is apparent from the case put by the Crown that there was not a single set of facts and circumstances which was common to all of the alleged offences, save that there were numbers of alleged offences which had one or more aspects in common, so that there might be said to be several different groups of offences which had some similarities. In the context of determining whether all of the offences had common features that were common to each so as to enable the evidence of the commission of one or more alleged offences admissible in respect of one or more of the other offences alleged, however, a close degree of analysis of the evidence is required.
On analysis, there were at best varying degrees or categories of similar fact evidence that the prosecution attempted to rely upon at the one trial. While a significant number of the offences involved oral sex, others involved fondling. Some involved both. In a number of cases there was the scuffing of semen on the floor. In many cases, the victim's pants were pulled down, but not always to the same degree. The offences were said to have occurred at different locations, although a significant number were said to have occurred at the store, the Scout hall, during excursions and at the applicant's house in Harvey.
In my opinion, to the extent that there were differing categories of similar offences, there was a substantial risk of prejudice to the fair trial of the applicant because the evidence of some of the offences for which he was tried fell into different categories and was not admissible in relation to other offences in a different category.
I accept that all the complainants were all young boys of roughly similar age when the offending against them commenced, although in some cases it extended over a greater or lesser period. It was the fact that all but AD were scouts during the time when the applicant was the scout leader at Harvey. All but DN and AL were employees at the store of which the applicant was the manager. In the cases of WM, DD, RB and SM, the applicant performed oral stimulation on the boy while masturbating himself to ejaculation on each occasion. This was alleged in relation to counts 8, 10, 12, 14, 16, 17, 19, 21‑24, 27, 35, 38, 40‑42, 45, 47, 48, 50‑52, 54, 56 and 57. That group of cases, however, is to be distinguished from those cases where it was alleged that there was only fondling of the penis as in counts 1‑4, 42, 48, 58, 60 and 61. Both those groups are to be distinguished from those cases where the applicant only sucked the complainant's penis, namely, counts 5, 6, 17, 22‑31, 34‑41, 45, 51, 52, 57 and 59.
The evidence that, after ejaculating, the applicant rubbed the ejaculate into the floor was limited to counts 8, 10, 12, 16, 19, 22‑24, 35, 45 and 54. In my opinion, this evidence was limited to the cases of WM (eight occasions) in respect of counts 8, 10, 12, 16, 19, 22‑24, RB (one occasion) in respect of count 35 and SM (two occasions) in respect of counts 45 and 54. I note that in respect of counts 8, 10, 12, 16, 19, 22-24 involving WM, the rubbing of ejaculate into the floor was preceded by oral sex with WM. This was also the case in count 35 involving RB, and counts 45, 50 and 54 involving SM. In my opinion, these additional facts would not detract from the similarity of incidents in which after ejaculation the applicant rubbed semen into the floor, even though the method adopted was not necessarily the same.
At the same time, even if the use of pornographic videos and magazines were to be regarded as a single "grooming" category, they were only used in relation to counts 9, 10, 17 and 23 in the case of WM, counts 25‑27 in the case of DD, counts 34, 35, 36, 38, 39 and 41 in the case of RB, counts 47, 48, 50, 53, 54 and 56 in the case of SM and counts 62 and 63 in the case of AM. They were not used in count 1 in the case of RM, count 2 in the case of DN, counts 3 to 6 in the case of AL, counts 7, 8, 11‑16, 18‑22 and 24 in the case of WM, counts 28‑31 in the case of DD, counts 32 and 33 ("not sure if porno"), 37, 40 in the case of RB, counts 43‑46, 51, 52 and 57 in the case of SM, or in counts 57‑61 and 63 in the case of SM.
It is in this context that the propriety of the joint trial of the 63 counts to which I have referred falls to be considered and the tests of admissibility of the similar fact evidence must be applied and formulated by Mason CJ, Wilson and Gaudron JJ in Hoch (supra) at 296 and 297. Such evidence only has probative value if it bears no reasonable explanation other than the happening of the events alleged. As their Honours said at 296:
"In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view – viz joint concoction – is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility."

Counts 32 to 37 were of indecent dealing with a child under the age of 14. They were said by RB to have occurred while the applicant was living in Harvey. The applicant left Harvey at the end of 1984 and RB was aged under 14 until just before the applicant left Harvey. The offences charged in counts 32 and 33 occurred at the store. They had been at the house and the applicant wanted to go back to the store to get some beer. While they were there, the applicant fondled RB's penis which was the subject of count 32 and then sucked his penis which was the subject of count 33. There was a second incident alleged at the applicant's house which was the subject of count 34 when the pornographic movie Debbie Does Dallas was shown to him. RB's evidence was that the applicant sucked his penis while lying him over an ottoman or a footrest. Count 35 involved unlawful and indecent dealing by sucking RB's penis and occurred at the SES hall. Pornographic magazines were taken from the back of the desk or the bench on that occasion. Count 36 involved another incident at the SES hall. On this occasion the incident occurred on a desk, whereas the earlier incident was on a counter or a bench. The conduct was the same.
Count 37 in respect of which the applicant was found not guilty was said to have occurred at Augusta. RB's evidence was that the applicant took him to bed in the bedroom inside the house. SM gave evidence that he recalled RB and the applicant sharing a bedroom on one occasion at Augusta. SM agreed that he had not told the police that. This evidence did not appear in any statement he had made to the police, nor did he give any evidence of it at the preliminary hearing or on any other occasion. The jury were directed that whether they accepted that evidence and regarded it as supportive of the evidence of RB was a matter for them. In my opinion, the verdict of not guilty in respect of count 37 is not inconsistent with the verdicts in respect of the other offences.
The applicant was found not guilty of count 38, which involved an incident alleged to have taken place at the Scout hall. RB said that the magazine Ribald was obtained from the ladies' toilet while the applicant was sucking his penis, but was interrupted when someone turned up. The person who came was said to have been DN's father. The latter was not called to give evidence. The fact that he was not called was the subject of submissions by counsel for the applicant at the trial by asking the rhetorical question: "Where is he? Why hasn't he been called to give evidence?" As to that, the learned Judge directed the jury in the following terms:
"It may be that he can't remember or would say he can't remember but we don't know that. You don't know that because he hasn't given evidence. It's important, members of the jury, that you don't speculate about what could have been said by someone who hasn't been called. You have heard a lot of evidence in this case. You can rest assured that all the evidence that the Crown relies on has been placed before you.
Your judgment, your verdicts in relation to these matters are verdicts which should be based upon the evidence and only upon the evidence, so in relation to [DN's father] all you can say is that you don't know what he could say. You should assume that since he has not been called he could not have said anything of assistance to the Crown in relation to its case. That then is the approach you should take in relation to that issue of [DN's father]."
In my opinion, the acquittal in respect of count 38 can be explained in terms of the absence of any corroborating evidence from DN's father.
Count 39 of which the applicant was convicted involved an incident at the Wagon Wheel Motel in Harvey after RB had dinner with the applicant and had consumed some wine. Later in his motel room the applicant committed an act of gross indecency by sucking his penis. The incident had occurred about six to 12 months after the applicant had left Harvey and there was evidence concerning the dates in 1985 that the applicant was recorded as having stayed at the Wagon Wheel.
Counts 40 and 41 in respect of which the jury returned a verdict of acquittal referred to incidents said to have taken place in the applicant's house in Perth on two separate occasions when RB visited the applicant. The first was when RB went up to Perth to do a holiday job found for him by the applicant. The second occasion was when the applicant came to Perth having got a job with another employer.
As to counts 40 and 41, which were alleged to have been committed on the first visit, it was put to RB in cross‑examination by counsel for the applicant that in his statement to the police in New South Wales, he had said that on the occasion of his second visit he had been abused by the applicant every single night. The learned Judge read to the jury the following passage from the transcript of the cross‑examination of RB in this respect commencing with a quotation from the statement as follows:
"Let's get back to this business where it says, 'each night [the applicant] would come into the room in the middle of the night and I would wake up with him sucking my penis.' Did you tell that to the Balmain police?‑‑‑Yes, I did.
Is any of that true?‑‑‑Well, I can't recall right now when it – you know, how often it happened or when it happened, you know, on the second visit to Perth.
Are you able to say it happened at all on the second visit?‑‑‑I can't recall right now.
Can't recall right now?‑‑‑I'm just quite confused by dates and times and all that at the moment, I'm afraid."
There was also evidence from SM that he also stayed with the applicant when RB was there on the second occasion. This made it clear that these offences were less likely to have occurred when SM was also staying, although SM said he only stayed with the applicant a couple of nights. At the same time, the Crown relied upon a number of similar facts in relation to the other charges in that RB was a scout, a store employee, the offending took place at the places identified in the evidence as being common to a lot of other charges, oral sex was involved every time, the accused masturbated himself while the abuse continued, particularly in relation to counts 35, 36 and 37. RB said the applicant had scuffed semen into the floor in the context of count 35. He referred to seeing a pornographic video when counts 39 and 41 were committed. He spoke of the Debbie Does Dallas video in relation to count 34 and the magazine called Ribald in relation to counts 35, 36 and 38.
In my opinion, the different verdicts involving RB can be explained in terms of the jury's assessment of the accuracy of the recollection and the evidence led as well as the impact of cross‑examination.
SM and AM were brothers. SM was the complainant in relation to counts 42 to 57 inclusive. Verdicts of guilty were recorded in respect of counts 43‑48, 50, 51, 53, 54 and 56. Verdicts of not guilty were recorded in respect of counts 42, 49, 52, 55 and 57. AM was the complainant in respect of counts 58 to 63. Verdicts of guilty were found in respect of counts 58, 60, 62 and 63, and a verdict of not guilty was found in relation to counts 59 and 61. Verdicts of not guilty were directed to be returned in respect of counts 49 and 55 during the course of the trial. The Judge was careful to say that those directed verdicts did not mean that the trial Judge had taken the view that the evidence in relation to the other counts concerning SM was stronger. The direction in respect of counts 49 and 55 was that, as a matter of law, there was insufficient evidence to sustain a conviction.
In relation to counts 42 to 45, age was an issue in relation to SM. He was born on 28 June 1967 and was the oldest of the complainants. Count 42, in respect of which there was a verdict of not guilty concerned an incident at Boranup in a stone hut. There was cross‑examination of SM whether the applicant was said to be sleeping on his left side or right side at the time, and whether or not there was enough light to detect the silhouette of the person so as to recognise him as the applicant. In this respect, the learned Judge reminded the jury that they had to be satisfied beyond reasonable doubt not only that [SM] was offended against, but also that the applicant was the offender. While there was no suggestion in the evidence that it was anyone else, his Honour told the jury that was not enough:
"You have to be satisfied beyond reasonable doubt that it was the accused who did the abusing.
As to that, all you have is the evidence of SM that it was the accused. You have to be satisfied that SM then is giving reliable evidence as to that. Of course [SM] has said that it was dark, that it was – on one occasion he said it was too dark to see and he has given evidence that he, before you, could recognise the accused by his silhouette. It is a matter for you whether you accept the evidence you have heard from [SM] that he did recognise the accused. You need to bear in mind that it was dark, that [SM] was a child, that it was a long time ago. Is his evidence reliable? Is it accurate? Even if it is honest, is it reliable?
He may well genuinely believe it was the accused and there is no suggestion it was someone else in the evidence, but are you satisfied beyond reasonable doubt that [SM] has given you reliable evidence identifying the accused in relation to this incident."
The verdict of not guilty reflects a clear possibility that the jury were not satisfied beyond reasonable doubt on the issue of identification.
Counts 43, 44 and 45 concerned an incident at the applicant's house in Harvey, possibly on a Saturday afternoon. SM said they were watching TV. SM spoke of watching motor sport. Count 43 involved fondling SM's penis and counts 44 and 45 involved sucking it. Clearly, the jury were satisfied beyond reasonable doubt of the applicant's guilt of these three offences.
Counts 46 and 47 involved an incident described by SM at the SES hall on a Friday afternoon which involved the applicant fondling and sucking his penis. SM had been working at the store. The applicant came up to him with a blue chipboard in his hand and said, "Come with me". They went over to the SES hall where the offences were committed. Clearly, the jury were satisfied of SM's evidence in relation to these offences beyond a reasonable doubt.
Count 48 was the subject of a conviction. SM's evidence was that this offence occurred at the store. He said that the applicant got a jar of vaseline and used it on himself and SM. His evidence was that the masturbating of his penis occurred while they were lying on the desk of a fellow employee at the store. SM's evidence was that the applicant said something like, "If [D] knew what was happening on her desk … " The incident was in fact said to have occurred on the desk used by the employee I have referred to as "D". As to this, the trial Judge directed the jury as follows:
"You will recall Ms Barbagallo made this submission to you yesterday when you come to consider that evidence, you may recall. It echoes something which the accused himself said in evidence when asked about the possibility that pornographic magazines and that the magazine, Ribald, might be in the store. The accused said words to the effect that [D] was a lady who worked in the store, a lady of some senior years and she would have been horrified to find any such material in the store.
There is an echo, so the crown says to you, in that evidence. It tends to support – the crown's submission is that it tends to support what [SM] said the accused said about [D] at the time of the abuse taking place on [D's] desk. [SM] also gave evidence that on this occasion there was a file in which the accused had a picture of him. That has not been the subject of any earlier evidence. It was something which simply came out at this trial, Mr Percy said to you, and is too convenient and incredible to accept. It is a matter for you."
The verdict of not guilty in respect of count 49 can be explained on the basis that in respect of that count the jury were not satisfied beyond reasonable doubt of the applicant's guilt.
Count 50 was the subject of a verdict of guilty. This count was referred to as the "pig‑shooting incident" when the applicant took SM pig‑shooting. SM's mother said there was an occasion when the applicant took SM shooting and she was worried because they were late home. The applicant denied that he had taken SM pig‑shooting. The offence alleged was the commission of an act of gross indecency by sucking SM's penis. Counsel for the applicant at the trial submitted that SM's mother was a partisan witness and her evidence should be treated with suspicion. It is apparent, however, that the jury must have been satisfied beyond reasonable doubt of the truth of SM's evidence in respect of this offence and must also have accepted his mother's evidence.
Count 51 was also the subject of a verdict of guilty. This count concerned an incident at the Harvey cattle sale yard just out of Harvey when the applicant was said to have committed an act of gross indecency on SM by sucking his penis. The jury were clearly satisfied of the truth of the evidence of SM with respect to that offence.
Count 52 involved another incident at Boranup. SM said that he and the applicant and, perhaps, two other boys were sleeping in the back of the applicant's Land Rover. Counsel for the applicant suggested to the jury that it was highly unlikely that the applicant would have sexually abused SM with two other boys close by and certainly not in circumstances where the Land Rover would rock and more as an act of masturbation was being carried out. There was a discrepancy between SM's evidence at the Preliminary Hearing and his evidence at the trial with respect to this count. At the Preliminary Hearing he said that he was sleeping at the very back of the Land Rover. At the trial he said that the applicant was sleeping at the very back. This discrepancy or inconsistency was relied upon by counsel for the applicant at the trial as shedding light on SM's lack of credibility. It may well have been enough for the jury not to have been satisfied of the applicant's guilt beyond a reasonable doubt, so as to bring in a verdict of not guilty on count 52.
Counts 53 and 54 related to one incident at Harvey which involved the applicant fondling SM's penis (count 53) and then sucking his penis (count 54) in respect of both of which the applicant was found guilty. The incident was said by SM to have occurred in the new extensions of the applicant's house at Harvey. SM referred to a particular European brand of television set which had been installed in the house.
Count 55 has already been dealt with earlier. Count 56 involved another incident in the applicant's house in Harvey when the applicant was said to have sucked SM's penis. SM said that on this occasion he heard a noise and the applicant's wife came home suddenly and (presumably) unexpectedly. There was cross‑examination about whether it was the noise of a gate shutting or some other noise. SM said there was some consternation on the part of the applicant. The applicant, who had a Ribald magazine, hid it by putting it under the bathroom mat and, according to SM, the applicant later told him that his wife had found the magazine. The jury must have been satisfied of the truth of the applicant's evidence beyond reasonable doubt in order to convict the applicant on count 56.
The applicant was found not guilty of count 57. This related to an incident at Nannup when the applicant was said to have sucked SM's penis. In between 31 December 1981 and 1 March 1982, there were floods at Nannup. SM said that he had gone down there with the applicant in his Land Rover. He and the applicant had slept in a tent. The applicant gave evidence that he was almost positive he did not go to Nannup, although he admitted that "we were called down" in a context in which the "we" was the SES.
In directing the jury concerning the evidence against the applicant relating to SM, his Honour said:
"The similarities pointed to in relation to the events the subject of [SM's] evidence are a number of those to which I have already made reference. There's the relationship of scout and employee between [SM] and the accused; there are the places; there's the oral sex which was the subject of [SM's] evidence in relation to many of these charges. In relation to count 54, [SM] gave evidence that the accused scuffed semen into the floor."
In my opinion, there was no inherent inconsistency in any of the verdicts in respect of SM.
AM was born on 28 November 1968 and was SM's younger brother and the complainant in respect of counts 58‑63 in respect of which the applicant was convicted of counts 58, 60, 62 and 63 and found not guilty of counts 59 and 61. The six counts related to five occasions. Two counts involved offences alleged when AM was under the age of 14, namely counts 58 and 59. The applicant was found guilty of count 58 and not guilty of count 59. The first of these involved the fondling of his penis and the second involved sucking his penis. Each of the offences was alleged to have occurred when he was staying at the applicant's house, or simply being looked after by the applicant and his family on occasions when his parents went out. The jury were invited by the trial Judge to take into account in considering whether AM was likely to have been aged under 14 at the time.
SM said that the offence the subject of count 58 occurred at the applicant's house when he was wearing pyjamas and sitting on the applicant's lap. The offence the subject of count 59 occurred when he was in bed at the applicant's house. He said that a shower was going and the applicant came into his room and sucked his penis. It was suggested to the jury by counsel for the applicant at the trial that the inference was that the applicant's wife was in the nearby shower. If, as the evidence suggested, the applicant had attempted the offence at that time, it would have been very reckless on his part. In my opinion, this circumstance is likely to have created a reasonable doubt in the minds of members of the jury so as to explain the verdict of acquittal in respect of count 59.
Count 60 involved an indecent assault on AM in a car by the applicant fondling his penis. AM was sitting on the applicant's lap. It was submitted on the applicant's behalf at the trial that the offence was hardly likely to have been committed because there were other boys in the car. In my opinion, however, it was open to the jury to accept the evidence of AM if they were persuaded beyond reasonable doubt of its truth and accuracy. The jury appear to have approached their task in the case with considerable care and attention.
The applicant was found not guilty in respect of count 61. The evidence of AM was that he and SM were taken by the applicant to look for a woodcutter named Leo Donohue. The offence was said to have been committed between 27 November 1981 and 28 November 1983 at Harvey. Evidence was given by Mr Donohue that he had given up woodcutting in 1979 and that if he did happen to be woodcutting on a weekend, no‑one would have been able to find him. The trial Judge directed the jury that they should consider his evidence. In my opinion, his evidence, which the jury appear to have accepted, would be sufficient to raise a reasonable doubt. There could well have been an honest mistake in relation to Mr Donohue because his evidence was that he had given up woodcutting in 1979 and that if he did happen to be woodcutting on a weekend, no‑one would have been able to find him. The trial Judge directed the jury that they should consider his evidence. In my opinion, his evidence, which the jury appear to have accepted, would be sufficient to raise a reasonable doubt. It does not suggest that the evidence in relation to the other offences of which the applicant was convicted in respect of AM should not have been accepted. There could well have been an honest mistake in relation to Mr Donohue.

Counts 62 and 63 involved an indecent assault by the applicant fondling AM's penis and then sucking it. The offences were said by AM to have occurred at the SES hall at Harvey. When these events occurred, AM said that he broke down and sobbed. The applicant then stopped what he was doing and said to AM that he did not want to hurt him or upset him. There was evidence that prior to the commission of these two offences, there were produced and shown to AM what were described by the trial Judge in his directions to the jury as pornographic magazines. In my view, there was no inconsistency between the verdicts in respect of the various offences against AM.
In my opinion, the verdicts of the jury indicate that they were satisfied of the truth of AM's evidence in relation to the offences of which the applicant was convicted. In cross‑examination he was not asked whether there had been a telephone conversation with the applicant in about January 1998. The applicant, however, was asked by counsel for the Crown whether AM had telephoned him about that time, but the applicant could not recall such a conversation. The jury were directed by the trial Judge that AM gave no evidence of such a telephone call and there was no evidence before the jury of it so that the jury should not assume that there was such a call.
In my view, the learned Judge gave a very careful and detailed summing up to the jury containing appropriate warnings and directions. No significant complaint has been made of any aspect of the summing up. In my opinion, his Honour summed up the case fairly and accurately and also properly identified the relevant issues to be resolved by the jury in accordance with his directions.
In my opinion, it has not been demonstrated that any one of the verdicts of guilty should be quashed because of a necessity to prevent a possible injustice: Spiteri (supra) per Malcolm CJ at [9]. For these reasons, ground 3 fails.

Conclusion

In the result, therefore, I am of the opinion that while grounds 1 and 3 of the grounds of appeal have failed, the applicant is entitled to succeed on ground 2 on the ground that there should have been separate trials of the counts where reliance was placed on the same or common aspects of similar fact evidence. In my opinion, the convictions should all be quashed and a new trial ordered. Counsel should endeavour to agree on the counts which should be tried together at one or more separate trials and in default of agreement apply to a single Judge of the District Court for the necessary directions.

WALLWORK J: The Chief Justice has outlined the facts and the law involved in this case in a most comprehensive manner. I agree with his Honour and for the reasons given by him that the convictions should be quashed and a new trial ordered in respect of all of the counts on the indictment.
In my opinion, before there is a retrial the counsel concerned should have in mind the words of their Lordships in R v Boardman [1975] AC 421. At 420 Lord Morris said:
"Professor Cross in his book on Evidence, 3rd ed. (1967), p 319, thus summarises the decision in Sim's case:
'The similar fact evidence was admissible because there were specific features which made each accused bear a striking resemblance to the others. The evidence showed, not merely that the accused was a homosexual, but also that he proceeded according to a particular technique; not only was the accused given to committing the crime charged, but he was also given to doing it to a particular pattern.'
In Kilbourne's case the Court of Appeal had followed Sims's case in holding that the contested evidence was admissible. They said [1972] 1 W.L.R. 1365, 1369:
'… each accused bears a resemblance to the other and shows not merely that the appellant was homosexual, which would not have been enough to make the evidence admissible, but that he was one whose proclivities in that regard took a particular form.' "
At 441 he continued:
"The word 'thereby' in the certified point of law seems to raise a question whether there is a rule which gives automatic admissibility to evidence where proclivities take a particular form. There is no such specific rule which would automatically give admissibility. But there may be cases where a judge, having both limbs of Lord Herschell LC's famous proposition [Makin v Attorney‑General of New South Wales [1894] AC 57, 65] in mind, considers that the interests of justice (of which the interests of fairness form so fundamental a component) make it proper that he should permit a jury when considering the evidence on a charge concerning one fact or set of facts also to

consider the evidence concerning another fact or set of facts if between the two there is such a close or striking similarity or such an underlying unity that probative force could fairly be yielded."

At 443 Lord Wilberforce said:
"If the appellant were being tried on a charge relating to S, could the prosecution call H as a witness to give evidence about the facts relating to H? The judge should apply just as strict a rule in the one case as in the other. If, as I believe, the general rule is that such evidence cannot be allowed, it requires exceptional circumstances to justify admission. Thus House should not, in my opinion, encourage erosion of the general rule.
…
…all sexual activity has some form or other and the varieties are not unlimited: how particular must it be for a special rule to apply?"
At 444 he said:
"The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).
I use the words 'a cause common to the witnesses' to include not only (as in Rex v Sims [1946] KB 531) the possibility tha the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed. This is well illustrated by Reg v Kilbourne [1973] AC 529 where the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out."

How Many Counts Should be Tried Together?

In Novac & Ors (Vol 65) (1977) Cr App R the English Court of Appeal said at 118:
"We cannot conclude this judgment without pointing out that, in our opinion, most of the difficulties which have bedevilled this trial, and which have led in the end to the quashing of all convictions except on the conspiracy and related counts, arose directly out of the overloading of the indictment. How much worse the difficulties would have been if the case had proceeded to trial on the original indictment containing 38 counts, does not bear contemplation."
In Hudson (1952) 36 Cr App R 94 at 95 in a case involving 38 counts on the indictment Lord Goddard said:
"The court has on many occasions pointed out how undesirable it is that a large number of counts should be contained in one indictment. Where prisoners are on trial and have a variety of offences alleged against them, the prosecution ought to be put on their election and compelled to proceed on a certain number only. Quite a reasonable number of counts can be proceeded on, say three, four, five or six, and then, if there is no conviction on any of those, counsel for the prosecution can consider whether he will proceed with any other counts in the indictment."
At 96:
Certain judges have tried a large number of counts together, and so have Quarter Sessions, but it is not a thing to be encouraged and I hope it will not happen again that as many counts as were tried together in this case will be tried at the same time. It is quite possible to split the indictment up and put some counts in another indictment. It may increase the costs to some small amount, but any small increase of that sort is nothing compared with the danger there may be of not having a fair trial."
In Appleby (1996) 88 A Crim R 456 at 464 Smith AJJA said:
"After examining the matters advanced by the Crown to justify the joinder of 63 counts the Full Court said (at 284, 194‑195):
'At the outset it is useful to record the words of Hawkins J in King [1897] 1 QB 214 where the accused had been tried on 40 counts of obtaining and attempting to obtain goods by false pretences. Hawkins J said (at 216):
'I pause here to express my decided opinion that it is a scandal that an accused person should be put to answer such an array of counts containing, as these do, several distinct charges. Though not illegal it is hardly fair to put a man upon his trial in such an indictment, for it is almost impossible that he should not be grievously prejudiced as regards each one of the charges by the evidence which is being given upon the others. There can plainly be no precise mathematical limit to the number of counts that can be joined in one presentment but it is of the utmost importance that the Crown's reasons for joining a large number of counts in a single presentment should be closely scrutinised with a view to ensuring that the accused is not subjected to improper prejudice.' "
At 466 his Honour continued:
"The prejudice arose, in my view, from a combination of elements. As adverted to by counsel before his Honour, it would be very difficult for any jury to avoid thinking that with so many allegations of theft being brought there must be some truth in them. Such a massive presentment and the length of the trial would also place pressure on a jury to find the applicant guilty on some charges."

Concoction

Another question raised in this appeal was the possibility of concoction. The question arises because of the contacts between the complainants which were referred to in argument before this Court by counsel for the appellant.
In Hoch, when discussing similar fact evidence, Mason CJ, Wilson and Gaudron JJ said at 296:
"…but it is implicit in the observation of Lord Wilberforce in Boadman that 'something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed'. His Lordship added:
'This is well illustrated by Reg v Kilbourne where the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out." (Original emphasis)
His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible."
At 297 their Honours continued:
"Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack a degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an

assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.
In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged. One complainant was ill disposed towards the applicant even before the events the subject of the counts in the indictment were said to take place. There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts."

The question of the onus of proof becomes of importance when deciding whether the possibility of concoction is present. The onus is clearly on the prosecution to satisfy the Judge that the relevant evidence "is not reasonably explicable on the basis of concoction". As noted above Lord Wilberforce said in Boardman (supra) at 444:
"… the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out."
If there is to be a retrial the questions arising in this regard could be decided when it is known which evidence the prosecution wishes to adduce.

Other Grounds of Appeal

In my view it is not necessary in the circumstances of this appeal to decide the questions arising under grounds 1 and 3. I should also say with respect that I do not agree that the questions arising in connection with concoction can be answered at this stage of the proceedings.
The evidence and the situation at a new trial may be different. The whole process should start again.

STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice. I am in general agreement with them and with his Honour's conclusions. There is nothing I wish to add.