Tasmania v Farmer

[2004] TASSC 104

[2004] TASSC 104

CITATION:                 Tasmania v Farmer [2004] TASSC 104

PARTIES:  TASMANIA
  v
  FARMER Shane Ronald

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  226/2003
DELIVERED ON:  9 July 2004
DELIVERED AT:  Hobart
HEARING DATES:  22 – 30 June 2004
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Evidence – Similar facts – Relevance – Sexual offences – Requirement of significant probative value – Assessment of possible cross-contamination – Whether probative force weakened by cross-contamination or common cause.

Evidence Act 2001 (Tas), ss97, 98, 101, 137.
Makin v Attorney-General for New South Wales [1894] AC 57; Pfennig v R (1995) 182 CLR 461, applied.
R v Randell [1999] TASSC 78, followed.
Aust Dig Criminal Law [522]

Criminal Law – Jurisdiction practice and procedure – Information, indictment or presentment – Joinder – Of counts – By statute – Same facts or series of offences of same or similar character – Prejudice to the accused – Severance.

Sutton v R (1984) 152 CLR 528; De Jesus v R (1986) 61 ALJR 1, applied.
Criminal Code 1924 (Tas), s311.
Aust Dig Criminal Law [722]

REPRESENTATION:

Counsel:
             Tasmania:  M A Stoddart and P Sheriff
             Accused:  P A Dunn QC and D Grace QC
Solicitors:
             Tasmania:  Director of Public Prosecutions
             Accused:  Galbally Rolfe

Judgment Number:  [2004] TASSC 104

Number of Paragraphs:  45

Serial No 104/2004
File No 226/2003

TASMANIA v SHANE RONALD FARMER

RULING DURING TRIAL  SLICER J

9 July 2004

1. The accused has entered pleas to 28 counts comprised in the one indictment which alleges acts of or associated with sexual misconduct against 13 complainants over a 14 year period.  Mr Farmer has, in accordance with the Criminal Code, s361A, sought rulings on a number of issues before the empanelment of a jury. Prior to the entry of pleas, the Court conducted, at the behest of the parties, an examination of certain witnesses, now commonly referred to as a "Basha Inquiry" (see R v Basha (1989) 39 A Crim R 337), a course similar to that permitted by the Justices Act 1959, s69A. During the course of the preliminary hearing, counsel for the prosecution indicated that the State would not be proceeding with five counts of the indictment and these rulings concern the remaining 23 allegations.

1. The rulings and orders sought can be categorised as:

(1)A motion to quash the indictment in accordance with the Code, s352, on the ground that it was:

"Calculated to prejudice or embarrass him in his defence to the charge". 

The motion was not designed to bring the proceedings to a close, but as a procedural means of encompassing the various contentions which might result in severance or amendment to counts contained in the indictment.  The motion, made at large, is dismissed.

(2)Application for severance.  The prosecution has, as is permitted by the Code, s311(2), joined in a single indictment, those charges which it says:

"Arise substantially out of the same facts or closely related facts, or [which] form part of, a series of crimes of the same or a similar character."

The application depends, in part, on evidentiary rulings.

(3)Rulings as to the admissibility of evidence, directly relevant to the allegation concerning each complainant, on the trial of the other counts.  Although these rulings impact on severance, they have wider import since even if severance be ordered, it would be possible for the prosecution to lead "similar fact" evidence on the trial of the unsevered counts.  In support of its claim, the prosecution relies on the provisions of the Evidence Act 2001 ("the Act"), ss97, 101.

(4)Integral to the rulings sought (in category (3)) are the contentions that the evidence of the complainants ought not be admitted because its (or portions thereof) probity is destroyed or weakened by reason of "common cause" or "cross-contamination" and/or the prejudice associated with reception and use which requires discretionary exclusion in accordance with the Act, s137.

(5)The multiplicity of counts itself would adversely affect the capacity of the accused to properly contest the allegations and the prospect of a fair trial.

(6)Discrete issues concerning the admissibility of certain identified evidence, not directly attached to a particular count.

Duty of Court

1. It is not for this Court to determine the evidentiary issues on the basis of whether it accepts the probity of the witnesses generally (Rozenes v Beljajev [1995] 1 VR 533) or to anticipate whether a jury would be satisfied beyond reasonable doubt that the evidence has established a particular charge. The duty of the Court, in relation to the issues of "similar fact" contamination and the like, is as stated in the High Court in Pfennig v R (1995) 182 CLR 461 by Mason, Deane and Dawson JJ at 485:

"Once that criterion of admissibility is accepted, it is apparent that the trial judge is required to discharge an important responsibility.  That point was made by the Supreme Court of Canada in Reg v B(CR) (1990) 55 CCC (3d) 1 where it was accepted that the process of balancing the probative value of the evidence against its prejudicial effect was a delicate one. But the trial judge, in making that judgment, must recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence."

1. In some of the counts involving a particular complainant, the prosecution case either depends on inference or is circumstantial in nature.

1. Learned counsel for the accused identified, quite correctly, the paucity of evidence supporting allegations of "procuring", or its attempt, of a sexual act by the administration of a drug.  The critique is aptly made, but the prosecution case in such instances can be articulated in the following way:

(1)a particular complainant avers that non-consensual sexual activity took place at a time when her capacity was impaired;

(2)she had been at a particular place in the presence of the alleged assailant shortly before sexual impropriety;

(3)the onset of a state of impairment was relatively sudden and outside her ordinary experience or expectation;

(4)that state followed the provision of an alcoholic drink by the accused, or at least at a time when he had opportunity to administer a substance;

(5)it is an inference, reasonably open to a jury, that the consequent impairment and sexual impropriety was occasioned by administration;

(6)there is cogent evidence of sexual impropriety.

1. It is the responsibility of this Court to have regard to the nature of the case, as it concerns each complainant, as a whole, not simply to isolate a particular count and determine it, absent a wider evidentiary context, by reference only to direct evidence.  The prosecution case then in furtherance of its reliance on inference, seeks to use the evidence of other occasions involving other complainants by use of inference, to establish administration in each particular case.  To the above is then added:

(7)If a number of complainants have experienced similar impairment and outcome, a reasonable inference open to a jury is that:

(a)     the accused administered a substance;

(b)     in doing so, he intended to "stupefy" the complainant to enable sexual misconduct.

1. The prosecution case is not confined to the administration of a "drug", but extends to the provision of alcohol.  It does so in three ways, namely:

(8)   (a)   he provided alcohol in order to achieve impairment;

(b)   he provided additional alcohol to one already affected in order to achieve an outcome;

(c)   irrespective of the provision of alcohol, he took advantage of one already affected by alcohol.  In this regard, the evidence on the prosecution case is relevant to issues of consent, capacity, memory and the making of, or failure to, make complaint.  The indictment referring to each complainant is not confined to "administration" or "procuring" and the crimes of sexual impropriety are not directly dependent upon such administration.

1. In determining the issues of "similar fact", permitted use of evidence, and exercise of discretion arising from prejudice, the Court is required to have regard to the whole of the prosecution case and not limit itself to an examination of each allegation, absent its context.  It is accepted that a claim of "drink spiking", especially if serial, attracts attention by its very making and involves a risk of distraction from what is, in essence, the prosecution case of non-consensual sexual misconduct.  However, this is ultimately a jury case and experience shows that juries, properly instructed, are able to concentrate on the evidence and its application to varying charges in complex cases.  As Brennan J observed in R v Glennon (1992) 173 CLR 592 at 614 - 615, in a different context:

"Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts Vaitos (1981) 4 A Crim R 238; Gallagher (1987) 29 A Crim R 33, at p 41 is that the reliance is not misplaced. In Munday (1984) 14 A Crim R 456, at pp 457-458, Street CJ repeated an unreported passage from one of his Honour's earlier judgments:

'... it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury'."

General

1. The accused was, at relevant times, either the part owner or licensee of four nightclubs, the Cadillac, Wild West and Men's Gallery Clubs in Hobart and the Playroom in Launceston.  Each of the 11 complainants was employed at, or a patron of, each nightclub.  There are differences in their accounts, but a summation of their versions is:

(1)each was present at a nightclub at which the accused was present in his capacity as an owner or licensee;

(2)each had been in the company of the accused shortly before the occurrence of an untoward event;

(3)it was, by direct evidence or reasonable inference, the accused who had committed an unlawful sexual act or had attempted or prepared to do so.

1. In most cases the complainants had consumed alcohol and, in most, it had been the accused who had provided at least some of that alcohol. 

1. The events are said to have occurred between late September 1990 and early 2001.  In some instances, the complainant had made complaint to another soon after the event or reported the matter to police.  The accused was spoken to by police on two occasions.  On the first occasion, he admitted consensual sex with a named complainant and on the second, which followed his arrest, he exercised his right of silence.

1. Although specific inquiries were made by police following the making of complaints, they were limited to the specific incident and no detailed investigation was conducted.  It was not until 2001 that a comprehensive approach was taken by police which involved review of previous reports and associated material, the current location of complainants, the identification of persons who had not previously complained, and the taking of statements from those persons and their corroborative witnesses.

1. The accused was arrested and charged on 21 November 2001.

The indictment

1. The indictment alleges 11 discrete occurrences at Hobart and Launceston between 1990 and 2001.  On all of the occasions, at least some of the conduct attributed to the accused occurred at a nightclub which he operated.  Three of the occasions involved an attempted taking of the complainant from the Cadillac nightclub to the home of the accused where a sexual assault took place, and one involved the persuasion of the complainant to go to a hotel room in Hobart.  Each count pertains to a particular complainant who will be identified, for the purposes of these rulings, by reference to the number of the first count relevant to her complaint.  The allegations are those of rape (the Code, s195(1)), aggravated sexual assault (s127A), indecent assault (s127), abduction (s186(2)), procuring by administering a drug (s129(c)), and attempting to do so (ss129(c) and 299).

1. The particulars of the indictment provide:

Count	Complainant	Date	Place	Charge
1	C1	September 1990	Cadillac Club Hobart	Rape
2 – 3	C2	November – December 1993	Cadillac Club Hobart Sheraton Hotel Hobart	Attempted procurement Indecent assault
4 – 6	C4	December 1993	Cadillac Club Hobart Sandy Bay Road Battery Point residence Hobart	Procuring Abduction Rape
7 – 9	C7	November 1995	Playroom Club Launceston	Procuring Aggravated sexual assault Rape
10 – 11	C10	September 1995	Playroom Club Launceston	Procuring Rape
12 – 13	C12	September 1996	Playroom Club Launceston	Procuring Rape
14	C14	August 1996	Playroom Club Launceston	Attempted procurement
15 – 17	C15	August – September 1996	Men's Gallery Hobart	Procuring Abduction Rape
18 – 19	C18	October 2000	Men's Gallery Club Sandy Bay residence Hobart	Procuring Rape
20	C20	November 2000	Wild West Club Hobart	Procuring
21 – 23	C21	February – March 2001	Wild West Club Sandy Bay residence Hobart	Procuring Abduction

1. The prosecution has framed its indictment so that crimes involving similarity and pattern are clearly identified.  In two cases it alleges alleged acts of "drink tampering" without outcome, (counts 14 and 20), in one the use of guile (count 3), and in other cases either has some evidence consistent with tampering or relies on inferential reasoning.  Each allegation has a sexual element as a necessary component.  It relies on each component as an evidentiary basis for the support of others and seeks to adduce that evidence, irrespective of severance.

Evidence relied upon

1. Evidence was adduced on this hearing in a number of forms and, given the amendment of the indictment made during this hearing, that evidence has been excluded.  Evidence accepted by this Court for the purpose of these rulings has been:

(1)Statements, proofs of evidence and attached documents comprised in the Crown papers, volumes 1 – 5.

(2)Supplemental proofs for the witnesses as supplied by the Crown. 

(3)Evidence of witnesses given during the "Basha" examination.

(4)Evidence of witnesses and exhibits tendered during this hearing.

Evidentiary principles

1. The reception and use of "similar fact" or "propensity" evidence has long been permitted at common law (Makin v Attorney-General for New South Wales [1894] AC 57). In that case, Lord Herschell, in delivering the opinion and advice of the Privy Council, stated as a general exclusionary rule, at 65:

"In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty.  It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried"

which was qualified by it being relevant to an issue on the particular trial since, as he said, also at 65:

"On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.   The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other."

1. Application of principle to the particular facts of a case is more difficult because of the variety of circumstances (Director of Public Prosecutions v Boardman [1975] AC 421, Lord Hailsham at 445), the unacceptable price demanded of principle (Ridgeway v R (1995) 184 CLR 19, Brennan J at 52) prevailing standards (R v Swaffield (1997) 192 CLR 159, Toohey, Gaudron and Gummow JJ at 194), and requirement of a fair trial (see, generally, The Truth can cost too much: The principle of a fair trial, Spigelman CJ (2004) 78 ALJ 29) which requires assessment in each case. (See generally Similar fact evidence: A pitted battlefield, K Downes, (2004) 78 ALJ 279.) In Australia the High Court has stated the relevant principles in decisions such as Markby (1978) 140 CLR 108 and Sutton v R (1984) 152 CLR 528, with more detailed exposition over time (Pfennig v R (supra)).  Those general principles have been applied in this State by Underwood J in R v Randell [1999] TASSC 78). Parliament has provided a legislative framework in its enactment of the Act, which relevantly states:

"97 ¾ (1)  Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency, whether because of the person's character or otherwise, to act in a particular way, or to have a particular state of mind, if ¾

(a)…;

(b)the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value.

(2)     Subsection (1)(a) does not apply if ¾  

(a)…;

(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.

"98 ¾ (1)  Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if ¾  

(a)…;

(b)the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value.

(2)   For the purpose of subsection (1), 2 or more events are taken to be related events only if ¾  

(a)they are substantially and relevantly similar; and

(b)the circumstances in which they occurred are substantially similar.

…

101 ¾ (1)  …

(2)     Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3)     This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4)     This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

…

"137 ¾ In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

1. The general statements of principle can be summarised as (Pfennig v R at 482 – 484):

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged (Boardman (1975) AC at 452, 458-459; Sutton (1984) 152 CLR at 556-557; Hoch (1988) 165 CLR at 295) . 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 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). 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.  Those principles have not been disavowed by any subsequent decision of this Court and they were accepted and applied by the trial judge in this very case.  The discussion in Hoch was expressed in terms of evidence of similar facts rather than propensity evidence.  That was because the evidence in that case lent itself to that classification though, in the light of the possibility of concoction, it was held to be inadmissible.

There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence.  The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases.  Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial.  On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case.  That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused.  In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman ((1975) AC at 457), that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed."

1. In R v Randell (supra), Underwood J was required to consider the admissibility of similar fact evidence in a case involving 15 former students and an indictment containing 32 counts of indecent assault.  He applied the principles stated in Boardman (supra); Pfennig (supra); Hoch (1988) 165 CLR 292 and R v Kilbourne [1973] AC 729, and considered the question of common cause, concoction and similarity in the following terms at pars11 – 17:

"11In Harris v Minister for Public Works (1912) 14 CLR 721 it was held that if the admissibility of evidence depends upon a question of fact, the fact must be ascertained by the trial judge as a question of law. The fact to be determined when so called similar fact evidence is sought to be adduced is whether that evidence bears the requisite probative value. That may depend, in part, on whether there is a real possibility that the similarities arose from a cause common to the witnesses. If, after hearing evidence upon the voir dire, the trial judge is satisfied that there is no real chance that the similarities in the evidence of the witnesses arise from concoction or other common cause, the evidence will be admitted if those similarities give the evidence the necessary probative value. In Hoch, Brennan and Dawson JJ went on to say at 304:

'Just as the duty to determine voluntariness arises when the circumstances of the case raise it as a real question (MacPherson, at pp 523,534) a duty to determine whether similar fact evidence is to be accounted for by a cause common to the witnesses arises when the circumstances of the case raise it as a real question. Here, his Honour identified circumstances of association between the complainants which plainly raised the question whether there was a real chance that they had put their heads together to concoct their allegations. That is not to say that a trial judge should lightly conclude that there is a 'real chance' of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire.'

12The above passage is apposite to the task at hand. I do not understand the majority judgment in Hoch to contend anything to the contrary.

13With respect to the evidence given by each complainant on the voir dire, the first question is whether that evidence contained facts so similar to the facts given in evidence by each of the other complainants that each supported the other in the sense that it is highly improbable that each would give evidence containing such similarities unless the acts charged actually occurred. The second question is whether there is a real, not fanciful, chance that such similarities might reasonably be explicable on any basis other than the guilt of the accused, eg, concoction or other common cause. In Harriman v R (supra) Dawson J said at 602:

'... the evidence should not be admitted at all if the judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused: see Hoch v R (1988) 165 CLR 292 at 296. If he is of that opinion, the evidence will not possess the requisite degree of probative force.'

In Hoch v R (supra) Mason CJ, Wilson and Gaudron JJ expressed the test this way:

'In such cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the events in issue [on each count]. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of concoction there is another rational view of the evidence. That rational view - viz joint concoction - is inconsistent 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'.

14With respect to the evidence of the commission of indecent assaults not the subject matter of a charge, Mr Stoddart, senior counsel for the Crown, submitted that it was admissible as 'relevant to the relationship between the accused and the complainant and/or relevant to show that the accused had a "guilty passion" for the complainant'. At this stage of the trial, the only relevant issues are those raised by the plea of not guilty. Relevance is to be determined accordingly. McHugh J discussed 'relationship evidence' obiter dicta in Harriman at 630 et seq:

'Evidence relating to the accused and the alleged victim ("the relationship cases"), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of a charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In "relationship cases", evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties.'

15   McHugh J's views about 'relationship evidence' were referred to with approval by Toohey J in S v R (1989) 168 CLR 266 at 279. This kind of evidence was considered by all the members of the Court obiter dicta in Gipp v R (1998) 194 CLR 106. In their joint judgment, McHugh and Hayne JJ referred to 'relationship evidence' and said that in the case at hand '[i]t was admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant.' However, I do not understand their Honours to be saying that there is a special category of 'relationship evidence' or background evidence which, per se, entitles the Crown to adduce evidence of criminal conduct not the subject of the charge. In his judgment in Gipp, Callinan J did not think this was the case. He said, at 168 - 169:

'I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told it might provide "part of the essential background" against which the other evidence is to be evaluated.'

His Honour went on to say:

'If such evidence is to be received it must owe its admissibility to some quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity or motive. There may also be cases in which the relationship between people may be directly relevant to an issue in the trial and in those circumstances admissible as such.'

16   In her judgment, Gaudron J took a stronger line and said, at 111 - 113, that evidence of sexual abuse not the subject of a charge is inadmissible unless it qualifies as 'similar fact' evidence or is made admissible by the conduct of the defence. She said that issues such as lack of surprise and failure to complain can only become issues if the defence is conducted in such a way as to make them issues. The other member of the Court, Kirby J, said at 156 that however the evidence is described, be it 'dispositionial', 'background', 'tendency', 'relationship' or 'similar fact' it is only admissible if its probative value outweighs its prejudicial effect.

17   It seems to me that there is no basis in law for treating 'relationship evidence' as if it were a special category of evidence. It is not. It is circumstantial evidence of the happening of the events in issue and, as it is also evidence of a general propensity to commit the crime charged, it will be excluded when sought to be lead by the prosecution unless its probative value is so high that it outweighs its prejudicial effect. Of course, such probative value may be acquired by the conduct of the defence, but with respect to those who have a different view, the evidence may also be of such a nature that it has the requisite probative value for admission regardless of the conduct of the defence and thus serve as circumstantial evidence of the happening of the events in issue. Whether it has such value will depend on the nature of the evidence and the nature of the case. In some cases, such as those concerning allegations of sexual abuse of a child of the accused, evidence of other wrongful acts not the subject of a charge may acquire the necessary probative force by virtue of its capacity to displace the presumption of a proper father/daughter relationship and to establish the existence of an improper relationship, thereby making it more likely that the acts charged occurred. See B v R (1992) 175 CLR 599 at 602; S v R (supra) at 279. However, it seems to me that in cases where the relationship between the accused and the complainant adds little by way of proof that the acts charged took place, evidence of that relationship is inadmissible in accordance with fundamental principle. See R v Kemp [1997] 1 Qd R 383. I refer generally on this issue to a very helpful article to which I was referred by Mr Barker, senior counsel for the accused, Comparative Evidence: Admission of Evidence in Sexual Offence Prosecutions (1999) 73 ALJR 432'."

1. The decision in Randell predated the enactment of the Act, but the general principles are those stated in statutory form. The New South Wales Court of Criminal Appeal had occasion to consider the effect of a provision equivalent to the Tasmanian enactment in R v Burns (2003) 137 A Crim R 557, in relation to the question of "substantial probative value" in the context of credibility. Sully J dealt with the statutory test in the following manner at 575 when he said:

"(7)The Evidence Act does not define the expression 'substantial probative value'. The Act's Dictionary does define the expression 'probative value of evidence' as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

Section 103(2) gives the following additional guidance:

'(2)   Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

(a)whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b)the period that has elapsed since the acts or events to which the evidence relates were done or occurred.'

(8)The question for the trial judge, respecting 'substantial probative value' came down to this: if the witness admitted his antecedent offences of dishonesty; and admitted, further, that on those particular occasions his dishonesty had disadvantaged others and advantaged himself; did this add in a substantive way to the discredit that had already been established by evidence that the witness was:

(a)a drug abuser;

(b)a person who had been threatened with possible prosecution if he did not make a pretrial statement, and who had thereupon provided such a statement?

(9)The trial judge thought not. I am not persuaded that his Honour fell thereby into error."

1. In Tasmania, Parliament has provided, by the Act, s3, for the definition of "probative value" as meaning:

"… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

1. A component to relevance is that of reliability.  The dangers of general rumour, bald assertions or opinions and evidence gained through another, require assessment of cogency which, in turn, requires exclusion of testimony tainted through the agency of another (Hoch v R (supra)) or which may be a concoction, witting or otherwise, especially through a common cause.  In such a case, the appropriate approach is to determine whether there is a real chance of concoction or cross-infection of evidence (Robertson v R (1990) 48 Cr App R 358).

1. In R v Best [1998] 4 VR 603, the Victorian Court of Appeal considered the application of a similar, but not identical, provision of the Crimes Act 1950 (Vic), s398A, in the light of the decision of the High Court in Pfennig (supra). In considering the assistance which might be derived from the second reading speech to the Bill, Calloway JA said, at 608 – 609:

The Attorney said that the test in subs(2) was in accordance with the approach of the House of Lords in Director of Public Prosecutions v P, 'which has been accepted by the High Court of Australia in' Pfennig's case. At first sight that is surprising, for the Pfennig test is stricter than the test in Director of Public Prosecutions v. P. That is apparent from the passages in R v H at pp610-611, 618, 621 and 625 to which I have already referred but, in any event, it is obvious as a matter of language and practical effect. The Pfennig test requires the judge to perform a task usually reserved to the jury and to apply the strictest test known to the law before ruling that propensity evidence is admissible. It is stricter than the test applied to the voluntariness of a confession: see Wendo v R (1963) 109 CLR 559. The sentences immediately preceding, and the sentence immediately following, the Attorney's statement make it clear, however, that she was referring to the High Court's agreement with the House of Lords that there is no essential prerequisite such as striking similarities."

That approach is here adopted.

Application of principle

1. Three questions are raised by the applications, namely:

(1)Does the evidence, or portion thereof, amount to relevant "similar fact material"?;

(2)Is the evidence cogent or is it tainted through the influence of others and/or general rumour?;

(3)If admissible, ought the evidence nevertheless be excluded as being unduly prejudicial?

Analysis of evidence

1. The outline of the evidence of each complainant and significant corroborative witnesses is stated in general form.  It is assumed that each will "come up to proof at trial" and any inconsistencies shown through cross-examination, except in relation to concoction or tainting, will be regarded as going to "weight" and to be considered at trial.  This is not to deny that the question of whether "there is a rational view of the evidence that is consistent with the innocence of the accused" (Pfennig (supra) at 482, Hoch (supra) at 296) is paramount in the evaluation of the evidence of a particular complainant and her corroborative evidence as a whole.

C1In September 1990, C1, aged 16, was a regular patron of the Cadillac Club.  She had been introduced to the accused and knew him by name and he would, on occasions, buy her a drink.  On one evening, she was invited by him to go upstairs with him so that he could give her a membership key or token so that she could have ready access to the premises.  He had locked the door and sexually assaulted her using threats and physical force.  He left her there and when she returned to the main area, she complained of the conduct to another member of staff.

C2In November/December 1993, C2, aged 19, was an employee at the Cadillac Club in Hobart.  After work, staff would have a drink together.  She recalls being given an alcoholic drink while she was sitting next to the accused and claims to have seen him put some white power in her drink, telling her, on inquiry, that it would "pep her up".  Shortly thereafter he offered her a lift home, but using a pretext, departed from the journey and took her to the Sheraton Hotel.  She was taken to a bedroom and sexually assaulted.  She made her escape, returned home and complained to her father about the misconduct.

C4C4 was aged 15 and still attending school at the time of the allegation in December 1993.  She had a school friend, far more experienced, who took her to the Cadillac Club.  There she was given an alcoholic drink whilst in the company of the accused.  To her it tasted different from other drinks of the same kind which she had previously consumed, seeming to be "powdery or soapy".  Within a short period of time, she felt strange and passed in and out of consciousness.  She has a disjointed memory of a car journey and entry into a building.  She has no recollection of sexual conduct and awoke, naked, in a strange room.  She saw no one at the premises.  She was bruised on her hands, wrists and ankles and sore in her vagina.  She dressed and left the unit.  The prosecution claims that it is able to show, through her description of the premises and other evidence, that those premises were at the relevant time occupied by the accused.

C7C7 turned 20 in May 1995.  She frequented the Playroom nightclub in Launceston, usually at a time when her friend P, an employee, was on duty.  In November of that year, she was provided with a cocktail while in the company of another friend D and the accused.  She had not finished her second drink when she began, in her words, to feel strange.  The accused had, on her version, opportunity to interfere with her drink and his physical attentions to her and behaviour when she offered her unfinished portion of the second cocktail to D, is material capable of supporting an inference of design.  C7 was accompanied by the accused to an upstairs room partially furnished with a mattress on the floor and a television set.  She was sexually assaulted at a time when she felt she had no control over her physical capabilities.  Her account is corroborated in part by P, who made vain attempts to find her friend and whose efforts were met, on her version, with a lie by the accused.  C7 next recalls awakening alone and only partially dressed.  She returned home and was physically ill for much of the day.  Her memory was disjointed and unclear as to detail, although she claims greater recollection shortly thereafter.  There is evidence, subject to criticism as to form and detail, of a corroborating complaint to D and further evidence consistent with evasion of the response by the accused when asked by P as to his conduct.

C10C10 had, as of 16 December 1995, been an employee at the Playroom nightclub for some six months.  She had turned 20 in November.  Her account is that whilst at the club in the early hours of Sunday morning, she had watched the accused prepare at least one of her drinks since she had heard rumours of "drink spiking".  After her third drink, the complainant began to feel strange or "funny".  She was escorted by the accused to an upstairs room and taken to a room which Mr Farmer had unlocked.  She says that her presence outside the room was noticed by another employee, D.  Inside the room, she could see a mattress on the floor and a small window.  She claims to have been sexually assaulted inside the room and to have lapsed into unconsciousness.  When she awoke at about 4am, she left the premises.  On her account, she then made a complaint to police, although there is documentation which suggests that her first visit to the police station did not occur until 2pm on the following Thursday.

C12The events complained of are alleged to have occurred at the Playroom nightclub on 7 – 8 September 1996.  C12, aged 21, had gone to the club with friends earlier in the evening.  She had consumed a significant amount of alcohol both before going to, and at the club.  She has little recall of events until waking up on a bed with an assailant attempting to remove her clothing.  In one of her statements, she says that in protesting the sexual conduct she said, "you've got a wife" which might suggest knowledge of the identity of her assailant.  She claims that when she awoke in an upstairs room at the club alone, she felt sore in the vaginal and anal areas and could see bruising to her arms and legs.  C12 returned home feeling physically sick.  Her parents reported the incident to police on the same day and the complainant was interviewed and medically examined.  Some of her evidence is corroborated by friends.  There is no evidence of substance administration, but evidence of contact between C12 and the accused before the assault.  Before leaving the room, the complainant claims to have picked up a business card inscribed with the name of the accused and to have remembered the name from an earlier visit to the club.

C15C15, an employee at the Playroom nightclub in 1996, declines to give evidence.  The evidence sought to be led at trial is that of her friend Na who was at the Playroom and claims to have observed the accused with some tablets and his suspicious conduct in providing C15 with a drink.  It does not seek to lead evidence of any attempt by the accused to sexually assault the young woman, but inferential evidence supporting design that he had paid close attention to her at the time she was with him.

C16C16 had been introduced to the accused by her friend Br, an employee at the Men's Gallery Club in August 2000.  In September, C16 had met with Mr Farmer to discuss her possible employment as a dancer.  He provided her with a number of alcoholic drinks, after which she felt "limp and heavy".  She was taken by the accused in a motor vehicle to a residence in Sandy Bay.  C16 claims that there she was sexually assaulted while she was physically and mentally impaired, as she lapsed into a semi-conscious or fully unconscious state.  She does not recall returning to the club, but her account as to her condition on return is corroborated by others.

C19C19, aged 18, had sought work at the Men's Gallery Club as a dancer in August/September 2000.  She had travelled from Launceston and on a Friday night was taken by the accused in his Porsche to his residence at Sandy Bay where she auditioned for her role as a dancer.  She claims that she had been, on a number of occasions, offered drugs of varying kinds by Mr Farmer.  C19 was employed and in the course of her resettlement from Launceston, spent some evenings sleeping at Mr Farmer's home, although on her account there was no sexual contact and she spent some evenings "sleeping on the couch".  On 7 October 2000, the evening before she terminated her employment, she had worked at the club and claims that during the course of the evening she had been drinking only water.  At about 12.30am, she began to feel strange and went to the change room to recover.  She says that she recalls the accused having hold of her and putting her in his motor vehicle and next remembering waking up in a bed with Mr Farmer.  She awoke about midday with the accused still asleep.  She had reason to believe that non-consensual vaginal sex had occurred.  She is able to describe the interior of the house and its location.  C19 waited until Mr Farmer had left the residence when she caught a taxi to a coach depot and returned to Launceston.  She complained to others within a few days.

C20C20, aged 18, had worked at the Wild West Club as a bar attendant.  She was suspicious of the accused and declined to accept an alcoholic drink. However she did consume drinks prepared whilst the accused was present.  Soon afterwards she felt unwell and was found by a companion being ill in a toilet.  The event is said to have occurred on 4/5 November 2000.  The complainant had broken memory and was cared for by another, at whose residence she spent the remainder of the evening.  The incident was reported to police shortly thereafter.  There is no allegation of sexual misconduct.

C21The time of this complaint is fixed by reference to a "rock concert" which is said to have occurred on a Friday evening in February/March 2001.   The complainant had consumed a significant amount of alcohol before going to the Wild West Club at about midnight.  There the accused introduced himself to the complainant and continued to pay attention to her.  C21 has a fragmented memory of events, but the evidence suggests that she was affected by alcohol.  She recalls being taken by the accused in a blue Porsche to a house with an electronic "roller door" to its garage.  She claims that she was carried into a living room and laid on a couch. Her next recollection is being naked on a bed and being sexually assaulted by the accused and losing consciousness.  When she awoke, Mr Farmer was still beside her in the bed.  She left in a distraught state and, having attempted unsuccessfully to persuade a friend to collect her, caught a taxi to her home where she complained to K, another friend.

1. Each of the versions given by the above complainants was subject to cross-examination on the hearing of these applications and this Court has been able to make its own evaluation of their testimony and the manner in which that testimony was given.  Portions of the accounts are susceptible to criticism and there was, in some instances, inconsistency between details provided in police statements and testimony given on the hearing.  There were lapses in memory which might be a natural consequence of the nature of the crime alleged or time elapsed.  But each of the complainants impressed as a credible witness in manner of testimony, response to cross-examination, cogency and consistency.  Their testimony was corroborated by others who were either present at the time, or to whom complaint was made.  Their accounts are both internally consistent and together show a pattern of conduct which, if accepted by a jury, could be used in a manner permitted by both statute and evidentiary principle.  Those matters, common to the complainants, can be summarised in the following terms:

(1)Each was a young female of, or less than, 20 years of age, who was, at the relevant time, not with a male companion or escort.

(2)All had been at a night club operated by the accused and had been in his presence at a time shortly before an alleged act of sexual predation.

(3)Each, with two exceptions, had been a regular patron of, or employee at, the night club.  In one of the exceptions (C4), the complainant had attended with a regular habitué of the premises and in the other, (C21), she had been approached by the accused shortly after arrival.  In each case the accused had initiated and maintained contact with the complainant.

(4)Alcohol played a significant part in the account of each complainant, except for C15.  On most occasions, the accused had proffered or supplied an alcoholic drink and had the opportunity to "tamper" with it.

(5)Each of the complainants to sexual misconduct was taken or escorted from a public area and taken to a room upstairs (Launceston), a residence at Battery Point or Sandy Bay occupied by the accused, or, in one instance, (C2), to an hotel at which Mr Farmer was known.

(6)The conduct alleged against the accused in each instance was sexual, either actual or anticipatory.  The form of sexual conduct was either vaginal or oral.

(7)Each complainant, except C2, claims to have experienced dizziness, partial memory loss, physical discomfort and impairment following the taking of alcohol or, in one instance, water, provided by or taken in the company of the accused.

(8)In four instances the complainant was taken by motor vehicle to a residence occupied by the accused at Battery Point (C6), and Sandy Bay (C15, C18, C21), and in one instance, to a nearby hotel, (C2).

(9)The acts of sexual assault alleged to have occurred in Launceston are said to have taken place in a room above the nightclub area.

(10)Identification of the accused, in most cases, is established by the complainant who either knew, or had been introduced to, Mr Farmer by name.  In every case, Mr Farmer had been with or in close proximity to the complainant shortly before the onset of the claimed effects of alcohol and/or a substance.  In the case of five complainants, medical examination and treatment was sought shortly thereafter.  In four instances, the prospects of employment had been discussed with the accused before the claimed sexual impropriety.

(11)In each case of sexual contact, the accused showed indifference to the complainant or her well-being after the event.

Contamination

1. It was not until 2001 that a thorough investigation was conducted into allegations concerning the accused and events said to have occurred at each of the four nightclubs with which he was associated.  An officer, Detective Constable Deayton, was assigned to the task, working under the supervision of a more experienced officer, Sergeant Hawkins.  Constable Deayton obtained and collated files concerning complaints previously made and began to collect the names of other potential complainants through those files and information provided by persons with contact with the nightclubs.  In some instances the name of a potential witness was provided by an already identified person or in one instance by a work colleague.  The log record kept by Constable Deayton shows the course of the investigation from July 2001 until December 2003.  Much of it records the tracing of the current whereabouts of complainants, significant corroborative witnesses and documentation relevant to the claimed events.  The officer was assiduous in her work.  While some of the entries show the process of obtaining background material and unsustainable conjectures or hearsay, the majority represents attention to detail in regard to cogent and provable evidence.  It is accepted that during the investigation, Constable Deayton formed an opinion as to the culpability of the suspect.  It is true that on two occasions the officer and her superior employed language, either in the "log" or in a request to interstate police, which, in hindsight, could have been more objectively expressed.  But the two officers were involved in the investigative process and it runs contrary to experience to believe that an officer engaged in such a wide-ranging process might not form a subjective belief as to the veracity or cogency of the information obtained during the course of inquiry.  The test is whether the existence of a belief was communicated to, and affected the account provided by, potential witnesses, complainants or otherwise.  It is the infection of the material obtained and any impact on the reliability of testimony which is to be considered.  Learned counsel for the accused did not contend that there had been fabrication of evidence on the part of either investigating police or the complainants.  He advanced as bases for contamination:

(1)a transference of information by Constable Deayton from one case to another by suggestions, method of collating and passing on of evidentiary material and unwitting confirmation of a version held by a complainant by indication or inference that others had suffered a similar experience;

(2)a process of reconstruction by complainants aided by general rumour, reinforced by the version recounted by others or ex post facto deduction;

(3)cross-contamination between complainants, either directly or through the medium of their friends and/or corroborating witnesses.

1. The contentions are based on the existence of common cause, familiarity between witnesses and the assembly, in the minds of witnesses, of disjunctive information, into a narrative or version explicable to that witness.  In many instances, the statement of witnesses was made long after the event and recollection only prompted by police inquiry.  It is again necessary to consider the case concerning each complainant.

C1The evidence of C1 is corroborated by her friend Re, who worked at the relevant time at the Cadillac Club, and to whom C1 complained soon after the event.  C1 had not heard rumours about the accused prior to the evening in question, other than a general account that he was involved in drugs.  Since that time, the two women have had little contact, nor discussed their respective accounts.  Police approached C1 as a result of other information in early April 2002 when she provided a statement.  Re, who claimed in evidence that she was not familiar with any witness in the other cases brought against the accused, was likewise approached by police some time before making her statement in June 2003.

C2When she returned home, C2 told her father of the incident and later her sister.  She was approached by police and made a statement to Constable Deayton at the office of the Director of Public Prosecutions in November 2003.  She had heard no rumours until after she had made that statement, although her sister had later warned her about the Cadillac Club generally.  Her father has also made a statement corroborating the complaint made by his daughter.  Neither witness has had contact with other complainants nor their corroborative witnesses.  C2 stated in her evidence that Constable Deayton had made no reference to the experience of other young women until after she had made her own statement.

C4Police have attempted, without success, to locate and interview Ge, the friend who had taken C4 to the Cadillac Club in December 1993.  The two have not been in contact, other than a casual meeting in 1997, since their school days.  C4 was approached by police and made a statement to police in New South Wales in November 2001.  That contact was made following information provided by Pe, a serving police officer in whom the complainant had confided before moving to New South Wales in mid-2000.  She was able to provide a detailed sketch map which shows the location of the apartment to which she was taken, a matter which is independently corroborated by governmental records showing the unit to be the address of the accused.  The witness claims not to have heard rumours adverse to the accused until long after the event.  She knows none of the other complainants or significant witnesses, nor was she provided by Constable Deayton with particulars concerning their cases.

C7Ra, a friend, was working at the Playroom Club in November 1995 and went in search of C7 when she was, on her account, upstairs with the accused.  Ra saw Mr Farmer, who denied knowing the whereabouts of the complainant.  She knew Da, the complainant's companion at the time drinks were provided by the accused, but was not particularly friendly with her. She corroborates the complainant in some respects, but says that she was unaware of complaints made by other young women at the time, other than later hearing of an assault with a pool cue.  Ra says she discussed no details of the complainant's version until after police contact.  She knew of Ke, a woman whose complaint has resulted in a trial of this accused, but had little contact with her.  Likewise she knew C12, but had never discussed either case with her. Ra was approached by police seeking information concerning Da and made her statement to police in 2002.  C7 had made her original statement in September 2001 and neither woman accepted the suggestion that Constable Deayton had supplied details of the accounts of other complainants or that of each other, before a statement was taken.  It may be that C7 has a belief, based on reconstruction, that her condition was caused by the addition of a substance to her drink by the accused and such might be inferred by the onset of her condition and the conduct of the accused when drinks were delivered.  But the suspicion of C7 is not evidence which can be led at trial and any suggestion of "tainting of evidence" relates to inference, not factual account, and in no way attaches to events upstairs.

C10It may be that C10 went to police on the day she found herself in the upstairs room, although police records suggest that her first approach was made on the following Thursday, 21 December 1995.  The original report is in existence and a full statement taken in Queensland in March 2003.  The Court does not accept that its contents were influenced by a "requesting note" sent by Sergeant Hawkins to his Queensland counterparts, nor that the communication "tainted" the cogency of the evidence.  C10 had heard rumours of a general nature involving the use of drugs, but none of a sexual nature and had worked with complainant C7 and knew of her corroborative witness Re and the complainant C7.  She claims not to have discussed her evidence with any of those persons, nor made complaint to them.

C12C12 is corroborated by the evidence of her father who gave evidence on the "Basha" examination.  She has made five statements to police, two in September 1996, a third in October of that year, and the fourth following contact by Constable Deayton in November 2001 and the fifth being her proof of evidence.  Her parents contacted police on the day of her return home and she was interviewed and medically examined on the same day.  Police investigating her complaint questioned the accused who provided a written statement admitting consensual sexual contact.  Any contact or friendship with others attending the club would not have "tainted her evidence".  The issue here is that of consent to the conduct and the question of "procuring" is but an incident to that issue.  There is nothing in the statements made by her friends, Em or Bl, which indicate cross-contamination of the evidence of C12, and no evidence of detailed discussion of the claimed event.  The complainant had not heard rumours adverse to the accused before the making of her September/October statements.  A corroborative male witness, Pa, was first approached by police in 1996, but there is nothing in his account which suggests cross-contamination.  The evidence of M Lo, a security officer employed at the Playroom, will be separately considered.

C14C14 has declined to give evidence in furtherance of this complaint.  The prosecution seeks to adduce evidence from Na, her friend, in support of this count and as similar fact evidence in relation to other counts of "procuring".  The admissibility and permitted use of her evidence will be separately considered.

C15The complainant gave an account on the hearing of a further act of sexual impropriety shortly before the acts referred to in the indictment which she had only revealed to Crown counsel some weeks previous to the hearing.  She had worked at the Men's Gallery following the events of September 2000 and was not approached by police until November of the following year.  She has had contact with a friend and corroborative witness, Br, but claims to have not discussed with her the details of her allegation.  Contact between the two has been but casual and infrequent.  Neither the complainant nor Br recognised during cross-examination the names of other complainants.  In many cases, employees at the club, especially dancers, used a single "stage" name and any continuing casual contact, other than with friends already made, would not have been likely.  The initial statement provided by C15 was to a Victorian police officer not directly associated with the investigation.

C18The complainant first made a statement to police in August 2001.  She had been cautious in her dealings with the accused because of rumours which she had heard.  She had confided in her mother, best friend M and a male friend To, shortly after the events complained of and his statement was made to police at about the same time as that of C18.  However, his evidence is limited to the making of a complaint and there is no evidence suggesting that he knew any of the other complainants or their corroborating witnesses.  C18 might have known of Br, a witness corroborative to the case of C15, but if so, only as an employee at the club and not as a confidante, although her name might have been provided to police by Br.

C20C20 was employed at the Wild West Saloon club through D Ra who was a manager at those premises.  It would appear that D Ra had a grievance against the accused for reasons unconnected with this complainant.  Following the events of 4/5 November 2000, the complainant, who had become physically ill, was taken home by D Ra and spent the remainder of the evening at his residence.  D Ra informed the complainant's condition to her parents and police were notified on the same day.  C20 was interviewed and medically examined on the same day.  It was D Ra who had suggested the possibility that her condition might have been caused by the administration of a drug by the accused or a named associate.  The evidence of the complainant was that she was cautious of the accused as she had been previously warned of the possibility of "drink spiking".  Whilst on her evidence the accused had the opportunity of tampering with her unattended drink, the possibility is that she concluded misconduct because of the suggestion of another who had reason to dislike Mr Farmer.  D Ra was not examined as a witness.  In his proof of evidence, he describes the presence of the accused with the complainant and his paying unwelcome attention to her.  However he was unable to provide any direct evidence of drink "tampering" and it is possible that his conclusion was a product of C20 becoming ill and his own predisposition to suspect Mr Farmer.  There is no allegation of sexual assault.  The evidence itself is inferential and, without more, unlikely to ground a conviction absent other evidence or the use of "reverse" application of similar fact evidence.  There is, in addition, a reasonable basis for concluding that the conclusion reached by the complainant has been "tainted" by the opinion of D Ra.  A separate ruling will be given in relation to this count.  (See Hickey v R (2003) 136 A Crim R 150).

C21C21 was a casual visitor to the Wild West Saloon club.  She had sought admission on one subsequent occasion and been refused.  Her main corroborative witness, Em, was not present at the club and is able only to give evidence as to the physical condition of the complainant and the making of complaint.  Another corroborative witness is a service station attendant from whose premises the complainant sought assistance and who has no association with any other prospective witness.  The complainant made her first statement to police on 23 November 2001.  The evidence of Em has not been subjected to cross-contamination and the evidence of the medical practitioner who saw the complainant some time after the claimed event is potentially advantageous to the defence.  A significant piece of evidence, not susceptible to the critique of contamination, is the finding of a distinctive piece of jewellery, worn by the complainant on the night in question, at the accused's residence.  It has not been suggested that such evidence is "tainted" by police impropriety.

1. In almost every case, each complainant did not know the others, nor their significant corroborating witnesses.  In those cases, as between complainants, any knowledge of another was, on the evidence, casual and infrequent (Hamilton v R unreported CCA WA No 970082, 4 March 1997; Hickey (supra) at 155). Publicity associated with the trial of the accused involving a different complainant might have impacted on some of the complainants here and might have provided resolve for them to continue with their allegation. But such, even if established, is not common cause. Post-event contact between complainants has been rare and differs from the nature of continued association which one might find within a family, school or communal residence. The investigative process was detailed and complex, but the Court is satisfied that the process itself and the procedures adopted did not result in the "admixture" of accounts or the introduction of material, obtained from another, into the account provided by the prospective complainant or witness. The impact of D Ra occurred before notification to police and was not a consequence of the manner of investigation.

Severance

1. The defence seeks severance of the indictment on a further basis.  It is said that the multiplicity of counts and the weight of the evidence to be adduced will make it difficult, if not impossible, for the accused to properly and fairly "stand his trial".  The principles governing an exercise of discretion to sever the indictment in accordance with the Code, s311, are stated by the High Court in Sutton v R (supra) and De Jesus v R (1986) 61 ALJR 1. In the former case, Brennan J stated as his view at 541 – 542:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

a view he repeated in the latter case.  Here, the evidence directly relevant to specific counts is admissible on the remaining.

1. Here, given the rulings in relation to "similar fact" or propensity evidence, the contention has lesser import.  Much of the evidence may be led, irrespective of severance.  Some of that evidence might be advantageous to the defence on the trial of particular counts, given that the weaker might, conversely, impact on the stronger.  Certainly the evidence of "procuring" is not compelling and its rejection by a jury might impact on the substantive allegations of sexual impropriety.  In one instance the case involves a claim by the accused of consensual sex.  The identity of the accused as the operator of the various clubs is hardly susceptible to challenge.

1. Four of the 27 counts originally stated in the indictment have already, during the course of the hearing, been excised.  Counts 14 and 20 ought be severed.  In the first, the complainant does not wish to give evidence and the risk of the remaining counts providing an inference of guilt through propensity, absent the ability of the defence to challenge the complainant, ought not be permitted.  While the evidence of the corroborating witness can properly be characterised as "similar fact" the ruling is, as a discretionary exercise, that it ought not be led.  The evidence supporting count 20 does not meet the required test of admissibility in relation to the other counts.  The ruling does not preclude the prosecution with proceeding to trial on that count alone, but its evidence is not capable of being used in support of the remaining allegations.  Rather, that other evidence might be used to unduly affect the trial on this count.  For that reason, the count ought be severed.

1. The remaining counts involve some nine events and complainants occurring over 11 years, but with one exception, within three periods of 1993, 1995 – 1996 and 2000 – 2001.  It is not appropriate to sever the indictment by reference to location, either by reference to club or geography.  On balance, the similarities apparent in the 1990 event permit inclusion in the one trial.  Alone it would nevertheless attract the adducing of other subsequent "propensity" evidence in its support.

1. Severance is ordered only in relation to counts 14 and 20.  In Randell (supra), Underwood J was required to consider severance of an indictment containing 32 counts of indecent assault.  Having determined the issue of "propensity", he allowed the trial to proceed with respect to 17 counts and severed 10.  Here, the trial will proceed with respect to 21 counts, involving 9 complainants.

Discrete applications

1. Discrete rulings are sought in relation to the evidence of M Lo and M L.  M L was examined in the course of the "Basha" examination and on the hearing of these applications.  She had been a regular patron of the Playroom Club in the years 1995 – 1996.  She recalls an evening in January 1996 when she attended the club with friends.  She says that she was wary of the accused "because of rumours [she] had heard that he was sleazy and was bad to his employees".  The group was provided with drinks by Mr Farmer, who chatted to them for a while.  Her statement, made in 2002, continued:

"I didn't hear what Shane said but my friends started following Shane and we sent up a set of stairs.

I was hanging back and apprehensive.  Once at the top of the stairs there was a hallway.

Shane unlocked one of the doors in the hallway and opened the door.  Shane went into the room.  I'm not sure whether the other girls went in.

The room was dinghy [sic], not well lit.  Thee [sic] was an old, thin, large mattress on the floor.  The mattress could have fitted two people on it.  It was dirty and had no sheet on it.

I don't think that the room had any other furniture in it, maybe a fireplace or mantelpiece.

I think the room had a window as well.

I got scared when I saw the mattress on the floor.  I was scared because it became obvious that he was trying to have sex with one of us in such a horrible room.

I know for sure that I left because I was scared.  I am pretty sure [W] would have left too, but I can't be certain.  I don't know about the other girls."

1. M L reported her concerns to police.  An incident report dated 6 January 1996 records:

"information received regarding an incident at the playroom, quadrant mall, launceston tas.

three 18 yr old girls had been drinking and dancing and had been approached by a male person who was recognised as one of the owners and offered a free drink.  it is thought that he introduced himself as shane (farmer, shane ??-???-????).

all of the girls received a free drink that he got for them while they waited in the back area of the rear room.  he was not seen actually preparing the drinks.

after they had finished drinking 'shane' must have said something to one of the girls about going upstairs.  they went up a staircase and into a room that had a large mattress on the floor.  one of the girls got scared and left.  her friends however stayed as far as is known."

1. The evidence attaches to no specified count in the indictment. The evidence does not indicate what the accused said to persuade the young women to go upstairs. It does not suggest that a sexual proposition was made, nor that the accused had attempted to isolate an individual from her companions. It does not suggest any ill-effects as a consequence of drinking the proffered drinks. It does not meet the criteria of "similar fact" or "propensity" evidence. Even had it done so, I would exclude it, as a discretionary exercise, on the basis that its prejudicial effect outweighs any probative value. One portion of the evidence might become relevant and admissible at trial. The relevance is the existence of an upstairs room containing sparse furniture, other than a large mattress on the floor, and the description of a "fireplace or mantelpiece". If the existence or description of the room is put in issue, and such might not be known until cross-examination, the prosecution will become able to lead the evidence, either as corroborating the account of a complainant, or as rebuttal if an assertion is later made. (See the Act, s101(3).)

1. The evidence of M Lo is sought to be led in support of counts 12 and 13.  M Lo worked at the Playroom Club as a security officer in 1995.  His proof of evidence, which is consistent with his evidence given on this hearing, states:

"Another night, after the incident with [K], I was standing at the Quadrant Mall entrance to the Playroom.  Farmer was standing next to me and I remember a female, I think her name is [M], trying to have a go at Farmer.  She had long dark hair, medium build, reasonably attractive.  She was abusing Farmer, saying things like 'See you in Court'.  She was very upset and her friend had to held her back.  I think [M] said something about Farmer raping her.  I asked farmer what [M] was going on about and he said something like 'Stupid bitch, I never laid a hand on her'.  He then went back inside the club."

1. He referred to the young woman only by a Christian name.  He was not asked to identify her by photograph or more detailed description.  The intended use of the evidence can only be to either show that C12 was outraged at the conduct of the accused and shows consistency in her conduct, or constitutes a denial of improper conduct.  C12 denies accosting the accused and has no recollection of speaking with him subsequent to her claimed incident.  It is possible that the exchange referred to another person with a similar Christian name or another referring to the complainant.  Its cogency or reliability is suspect.  Unless there is a nexus between the altercation and the allegation of misconduct, the evidence is neither relevant nor capable of constituting corroboration.  It ought not be led on the trial.

Rulings

1. (1)   The motion to quash the indictment is dismissed.

(2)The indictment ought be severed by the excision of counts 14 and 20.

(3)The remaining counts, namely 1 – 13, 15 – 19 and 21 – 23, are to be tried by the same jury.

(4)The evidence of each complainant is admissible on the trial of the counts pertaining to the other counts.

(5)Evidence of witnesses corroborating each complainant, insofar as it is relevant and comprises direct evidence of the conduct of, or words spoken by, the accused or the description of locations, is admissible on the trial pertaining to the other complainants.

(6)That the evidence of M Lo not be admitted on the trial at large, or any particular count.

(7)That the evidence of ML not be admitted on the trial at large unless the existence of the upstairs room or its description and contents are put in issue by the accused.

(8)The evidence of Na, a corroborative witness to C14, not be admitted on the trial.

(9)That the evidence of witnesses corroborative of the case involving a particular complainant is, apart from the category of evidence referred to in ruling (5), to be confined to the particular count or counts pertaining to such complainant.

Publication

1. The Act, s194J, provides:

"194J ¾ (1) If a court is of the opinion that the printing or publication of any evidence or argument or particulars of any evidence or argument in a case before it may prejudice, or is likely to prejudice, the fair trial of the case, the court may forbid the printing or publication of the evidence, argument or particulars.

(2)       A person who prints or publishes or causes to be printed or published anything in contravention of subsection (1) commits a contempt of court and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed."

1. Section 194K provides further specific powers constraining the publication of material in relation to the possible identification of certain categories of persons, especially those against whom a sexual crime has been committed.  Here, publication of these reasons might permit identification of a particular complainant, although care has been taken to mask identity.  There is greater risk that publication might affect potential jurors and the prospect of a fair trial because of advance publicity (see Glennon v R (supra)).  This hearing comprised an examination of witnesses before trial and the conduct of a voir dire on the issues of admissibility and severance.  Publication would be contrary to the public interest.  Given the responsibility for a judicial officer to provide reasons for a decision or complex rulings and that a different judicial officer might conduct the trial, it is appropriate that I prohibit publication of any of these reasons for ruling to all except:

(1)the Director of Public Prosecutions and those legal and para-legal officers authorised by him;

(2)the accused, his solicitors and counsel retained for the purpose of trial;

(3)judges of this Court and those members of their staff duly authorised by that judicial officer.

1. It will be appropriate to publish these reasons after trial and verdict, unless contingencies arise by reason of the appellate process.