The State of Western Australia v WCM

[2014] WASCA 38

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WCM [2014] WASCA 38

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   12 NOVEMBER 2013

DELIVERED          :   12 NOVEMBER 2013

PUBLISHED           :  19 FEBRUARY 2014

FILE NO/S:   CACR 20 of 2013

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

WCM
Respondent

FILE NO/S              :CACR 22 of 2013

BETWEEN              :WCM

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAUDE DCJ

File No  :IND GER 38 of 2012

Catchwords:

Criminal Law - Criminal Procedure - Whether indictment should have been severed - Whether even if evidence cross­admissible there remained a discretion under s 133(3) of Criminal Procedure Act 2004 (WA) to order severance - Construction of s 133(3) and s 133(5)(c) of the Criminal Procedure Act 2004 (WA)

Evidence - Whether evidence cross­admissible - Section 31A of Evidence Act 1906 (WA)

Legislation:

Children's Court Act 1988 (WA), s 19D
Criminal Procedure Act 2004 (WA), s 133, sch 1 cl 7(3), sch 1 cl 9(1)
Evidence Act 1906 (WA), 31A

Result:

CACR 20 of 2013
Appeal allowed
Severance order made by primary judge set aside

CACR 22 of 2013
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

CACR 20 of 2013

Counsel:

Appellant:     Mr B Fiannaca SC

Respondent:     Mr A E Monisse

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Legal Aid (WA)

CACR 22 of 2013

Counsel:

Appellant:     Mr A E Monisse

Respondent:     Mr B Fiannaca SC

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

ERA v The State of Western Australia [2013] WASCA 163

Macfie v The Queen [2012] VSCA 314

Osborne v The State of Western Australia [2013] WASCA 106

The State of Western Australia v GBT [2006] WASCA 75

1. McLURE P:  This is a State appeal against a severance order made by Staude DCJ on 29 January 2013 (CACR 20/13) and an appeal by WCM (the respondent) against the same severance order (CACR 22/13).

2. On 12 November 2013, this court ordered in CACR 20/13 that the appeal be allowed and the severance order made by Staude DCJ be set aside.  Leave to appeal was refused in CACR 22/13 and the appeal dismissed.  These are my reasons for joining in the orders made by the court.

3. The respondent is charged with 34 counts of sexual offending against six complainants between the ages of 3 and 15 years in the period between 31 December 1976 and 1 January 1995.  The complainants are VC (female), MK (female), SC (female), AC (male), MS (male) and DC (male).

4. Details relating to the 34 counts, including a summary of the alleged conduct, are as follows:

#	Date range	Charge	Complainant	Age of C	Age of R	Summary of respondent's alleged conduct
1	1977	Indecent dealing with girl under 13	VC	4-5	13-14	Put complainant's hand on respondent's penis
2	1977	Indecent dealing with girl under 13	MK	4-5	13-14	Touched complainant's vagina
3	1977	Indecent dealing with girl under 13	VC	4-5	13-14	Touched complainant's vagina
4	1977	Inciting a child under 14 to indecently deal with another	VC	4-5	13-14	Directed complainant to touch another child's genitalia
5	1977	Inciting a child under 14 to indecently deal with another	SC	3-4	13-14	Directed complainant to touch another child's genitalia
6	1977	Inciting a child under 14 to indecently deal with another	MK	4-5	13-14	Directed complainant to touch another child's genitalia
7	1978	Indecent dealing with girl under 13	SC	4-5	14-15	Put respondent's penis in complainant's mouth
8	1978	Indecent dealing with girl under 13	SC	4-5	14-15	Put respondent's penis in complainant's mouth
9	1978	Indecent dealing with child under 14	AC	6-7	14-15	Put complainant's hand on respondent's penis
10	1979-mid 1981	Indecent dealing with child under 14	AC	7-8	15-17	Sucked complainant's penis
11	1979-mid 1981	Carnal knowledge against nature	AC	7-8	15-17	Had penile-anal sex with complainant
12	Jan-Jun 1981	Indecent dealing with child under 14	AC	7-8	15-17	Touched complainant's penis
13	Jan-Jun 1981	Indecent dealing with child under 14	AC	7-8	15-17	Touched complainant's penis
14	Jan-Jun 1981	Indecent dealing with child under 14	AC	8	17	Touched complainant's penis
15	Jan-Jun 1981	Inciting a child under 14 to indecently deal with another	AC	8	17	Directed complainant to put cream on respondent's penis
16	1983	Indecent dealing with child under 14	MS	9-10	19-20	Touched complainant's penis
17	1985	Indecent dealing with child under 14	MS	11-12	21-22	Had complainant masturbate respondent
18	1985	Indecent dealing with child under 14	MS	11-12	21-22	Touched complainant's penis
19	1985	Indecent dealing with child under 14	MS	11-12	21-22	Had complainant masturbate respondent
20	1985	Procuring a child under 14 to indecently deal with another	MS	11-12	21-22	Had complainant touch respondent's penis
21	1986	Indecent dealing with child under 14	MS	12-13	22-23	Touched complainant's buttocks with respondent's penis
22	1986	Procuring a child under 14 to indecently deal with another	MS	12-13	22-23	Had complainant masturbate respondent
23	1986	Indecent dealing with child under 14	MS	12-13	22-23	Masturbated complainant
24	1986	Procuring a child under 14 to indecently deal with another	MS	12-13	22-23	Had complainant masturbate respondent
25	1987	Gross indecency	MS	13-14	23-24	Penetrated complainant's anus with respondent's finger
26	1987	Carnal knowledge against nature	MS	13-14	23-24	Had penile-anal sex with complainant
27	1988	Gross indecency	MS	14-15	24-25	Had complainant masturbate respondent
28	1987	Gross indecency	MS	13-14	23-24	Touched complainant's penis
29	1992	Indecent act in public	DC	9	28-29	Masturbated in front of complainant
30	1992	Indecent act in public	DC	9	28-29	Masturbated in front of complainant
31	July 93	Indecent dealing with child under 13	DC	10	30	Masturbated complainant
32	July 93	Indecent dealing with child under 13	DC	10	30	Put complainant's hand on respondent's penis
33	July 93	Encouraging a child under 13 to do indecent act	DC	10	30	Encouraged complainant to touch respondent's penis
34	1994	Sexual penetration of child under 13	DC	11	30-31	Had penile-anal sex with complainant

1. Counts 1 ‑ 15 were originally within the jurisdiction of the Perth Children's Court because the respondent was under 18 years at the time of the alleged offences.  However, on 19 October 2012, the President of the Children's Court upheld the State's application pursuant to s 19D of the Children's Court Act 1988 (WA) to transfer the charges to the District Court on the basis that the evidence in respect of those charges was cross‑admissible with the evidence in respect of the charges that were already in the District Court.  Following the committal of the Children's Court charges to the District Court, the State presented a joint indictment containing the 34 counts.

2. Each of the complainants is part of an extended family group which also includes the respondent.  The relationship between each complainant and the respondent is as follows:

Complainant	Relationship to respondent	Counts
VC	Respondent's uncle married to complainant's aunt	1, 3, 4
SC	Complainant is VC's sister	5, 7, 8
MK	Respondent's uncle married to complainant's aunt	2, 6
AC	Respondent was complainant's first cousin	9 ‑ 15
MS	Respondent's sister‑in‑law was the complainant's aunt	16 ‑ 28
DC	Respondent was brother of complainant's foster father	29 ‑ 34

1. The respondent applied to sever counts 1 ‑ 15 from the indictment.  The primary judge ordered that counts 1 ‑ 8 in the indictment be severed and tried separately from counts 9 ‑ 34 on the basis that the evidence in respect of counts 1 ‑ 8 was not admissible in respect of counts 9 ‑ 34 and vice versa and on the ground of unfairness.  The primary judge was satisfied that the evidence on each of counts 1 ‑ 8 was cross‑admissible as was the evidence on each of counts 9 ‑ 34.

2. The State's grounds of appeal are as follows.

   (1)The learned judge erred in law in concluding that evidence in relation to counts 1 ‑ 8 was not cross‑admissible upon the evidence in relation to counts 9 ‑ 34 on the basis that:

   (a)the evidence of each set of counts did not have significant probative value in respect of the other set;

   (b)the risk of an unfair trial was such that a fair‑minded person would not consider that it was in the public interest for evidence of each set of counts to be admitted in relation to the other set.

   (2)The learned judge erred in the exercise of his discretion under s 133(3)(a) of the Criminal Procedure Act 2004 by ordering separate trials to counts 1 ‑ 8 and counts 9 ‑ 34.

3. The respondent's ground of appeal in CACR 22/13 is in the following terms:

   (1)The learned judge erred in the exercise of his discretion under s 133(3)(a) of the Criminal Procedure Act 2004 by not ordering that the following count sub-sets in [the indictment] be tried separately from each other:

   (a)counts 9 to 15;

   (b)count 16 to 28; and

   (c)counts 29 to 34.

4. As is apparent from the ground of appeal, the respondent seeks orders in the appeal that were not sought by him from the primary judge.

The statutory framework

1. The 34 charges in the indictment were properly joined under cl 7(3) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA). Accordingly, all the charges must be heard together (CPA, sch 1 cl 9(1)) unless a court orders otherwise under s 133 of the CPA.

2. Section 133 of the CPA relevantly provides:

   (3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a[n] … indictment because it contains 2 or more charges, the court may order ‑ 

   (a)that the accused be tried separately on one or more of the charges;

   … 

   (5)In deciding whether to make an order under subsection (3) … in respect of an indictment to be tried by a jury, it is open to a superior court ‑ 

   (a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and

   (b)to so decide irrespective of the nature of the offence or offences charged; and

   (c)to so decide even if ‑ 

   (i)the evidence on one of the charges is inadmissible on another.

3. Where an indictment contains two or more charges of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion (s 133(6)).

4. Section 133(3) is concerned with unfair or impermissible prejudice: Donaldson v The State of Western Australia (2005) 31 WAR 122 [101] ‑ [107]. If the court is not satisfied that an accused is likely to be unfairly or impermissibly prejudiced by the joinder of charges in an indictment, the discretion to order severance does not arise: Donaldson[98].

5. The State's position is that if the evidence on counts 1 ‑ 8 and the evidence on counts 9 ‑ 34 is not cross‑admissible, the primary judge was correct to sever counts 1 ‑ 8.  For the purpose of this appeal, I will assume that to be correct.

6. The evidence on all the counts in the indictment is cross‑admissible under s 31A of the Evidence Act 1906 (WA). For the purposes of s 31A, 'propensity evidence' means, relevantly, similar fact evidence, other evidence of the conduct of the accused person or evidence of a tendency that the accused person has or had (s 31A(1)). The term 'relationship evidence' is defined in s 31A(1) to mean, relevantly, evidence of the attitude or conduct of the accused person towards a class of persons over a period of time.

7. Under s 31A(2), propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers:

   (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

8. In considering the probative value of evidence for the purposes of s 31A(2), it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion (s 31A(3)).

9. The evidence in respect of counts 1 ‑ 8 and counts 9 ‑ 34 qualifies as propensity evidence in that it is evidence of the conduct of the respondent or evidence of a tendency that the respondent has or had and is relationship evidence in that it is evidence of the attitude or conduct of the respondent towards a class of persons over a period of time.

10. The expression 'significant probative value' means that the evidence needs to be able to rationally affect the assessment of the probability of the relevant fact in issue to a significant extent.  Significant probative value is something more than mere relevance but less than a substantial degree of relevance.  It is a probative value which is important or of consequence:  Dair v The State of Western Australia (2008) 36 WAR 413 [61].

The primary judge's findings

1. The primary judge concluded that counts 1 ‑ 8 did not have significant probative value in respect of the other charges because they involved acts against girls, of a young age, perpetrated by the respondent when he was a child, and the acts were of a different quality.

2. The primary judge also concluded that even if counts 1 ‑ 8 had significant probative value in respect of the other charges, there was a real risk of an unfair trial such that the fair‑minded person test was not satisfied.  He found that the risk of an unfair trial would arise due to the 'revulsion' a jury would be likely to feel in relation to counts 1 ‑ 8.

Cross-admissibility

1. In my respectful opinion the primary judge erred in concluding that counts 1 ‑ 8 did not have significant probative value in respect of the other counts and in finding that there was a real risk of an unfair trial such that the fair‑minded person test was not satisfied.

2. I start with the issue of cross‑admissibility based on the material in the prosecution brief.  There are strong similarities in the alleged offending as a whole.  All of the alleged offences are committed against children.  The first 28 counts were allegedly committed against complainants who were between 8 ‑ 10 years younger than the respondent.  When the respondent reached his late 20s/early 30s, the age difference between the complainant in counts 29 ‑ 34 and the respondent widened to around 19 ‑ 20 years.  However, the complainant was around the same age as the complainants the subject of counts 16 - 28.  All the complainants came from within the same extended family group as the respondent.  Further, there was similarity in the types of alleged offending which included touching genitalia, masturbation and penetration.

3. In summary, the evidence in support of each charge, in isolation and together, is capable of demonstrating a tendency on the part of the respondent to be sexually attracted to children; to offend in a sexual manner against children in his extended family group; and to do this regularly throughout the course of his teenage years and adult life.  Against that background, little if any significance can be attached to the fact that the respondent commenced his alleged offending against young girls and, at the age of 14 or 15, turned his attention to young boys.  The evidence in each of counts 1 ‑ 8 is of significant probative value in respect of counts 9 ‑ 34 and vice versa.

4. Moreover, there is no reasonable foundation for the primary judge's conclusion that there was a risk of an unfair trial because of the revulsion a jury would be likely to feel in relation to counts 1 ‑ 8.  Although the complainants were younger than the complainants in the other counts, the respondent was also a child.  Further, the first eight counts did not involve alleged acts of masturbating the complainants or penile‑anal penetration, unlike some later counts.  The risk of an unfair trial is very small and readily guarded against by appropriate directions.

5. As the evidence in respect of counts 1 ‑ 8 is admissible in counts 9 ‑ 34 and vice versa, the condition enlivening the discretion in s 133(3) is not satisfied, there being no unfair or impermissible prejudice occasioned by its admission.

Other matters of prejudice

1. The respondent contends that the cross‑admissibility of evidence is not determinative of the issue to be decided under s 133(3) of the CPA. For present purposes I will assume that to be correct. See The State of Western Australia v GBT [2006] WASCA 75 [49] ‑ [50]. It is contended that the respondent is likely to be prejudiced by all counts in the indictment being tried together in that there would be a dilution of the Longman warning and other forensic disadvantages from what the respondent describes as the 'overloaded, complicated and/or unfair' indictment.  In oral submissions at the hearing of the appeal it was further contended on behalf of the respondent that a joint trial of all counts would have a negative impact on the respondent's right to remain silent, including at his trial.  I will deal with each of these matters separately.

2. The respondent contends that by the time the trial judge delivers a Longman warning in relation to each complainant, the effect will be progressively diminished for each complainant with the likely outcome being the distortion of the jurors' capacity for objectivity.  This is mere assertion that is counter‑intuitive and not borne out by experience.  Multiple counts involving multiple complainants are common in this and other jurisdictions without any improper distortion or dilution of the effect or effectiveness of a Longman direction.  See for example GBT (78 counts of child sex offences against eight complainants); Osborne v The State of Western Australia [2013] WASCA 106 (25 counts of child sex offences against seven complainants); ERA v The State of Western Australia [2013] WASCA 163 (29 counts of child sex offences against four complainants). Any effect on outcomes attributable to the probative value of other counts is not an improper effect.

3. As to the claim that the indictment is 'overloaded, complicated and/or unfair', the respondent points to the fact that the counts raise historical allegations that begin when the respondent was a child and end when he is in his early 30s with counts that differ as to date, time, place, nature and complainant.  However, none of these matters individually or collectively take this case outside what is commonplace in child sex and other cases in this jurisdiction.  The factual compass of each count will be relatively narrow and confined.  It is wrong to characterise the proposed trial as highly complex and as presenting a difficult task for jury, experienced counsel and judge.

4. The respondent relies on the Victorian case of Macfie v The Queen [2012] VSCA 314. In that case the Victorian Court of Appeal dismissed an appeal claiming a miscarriage of justice occasioned by an indictment containing 52 counts of sexual offending against seven child complainants. However, the court implicitly acknowledged the possibility that an overloaded and unnecessarily complicated indictment may give rise to a substantial miscarriage of justice. However, that is not an apt description of the indictment in this case. Moreover, the Victorian statutory framework relating to severance differs from that in this jurisdiction.

1. Finally, there is no merit in the claim that the respondent's right to silence is impaired by a joint trial on all counts. The thrust of the respondent's claim is that a joint trial on all counts would arguably require him to give evidence at his trial. If that is so it is because of the significant probative value which underpins the cross‑admissibility of the evidence on all counts. Section 133(3) is only concerned with

impermissible or improper prejudice, not prejudice flowing from the strength of the admissible evidence.

1. It is also necessary to deal with a construction submission put on behalf of the respondent at the hearing of the appeal. It was submitted that s 133(5)(c) has no bearing or effect on the exercise of the discretion under s 133(3) of the CPA. As a matter of fact it would have no bearing in this case because of the cross‑admissibility of the evidence on all counts. If the evidence on any count was inadmissible, it cannot be said that s 133(5)(c) has no bearing or effect on the exercise of the discretion in s 133(3).

2. None of the matters relied on by the respondent demonstrate a likelihood of unfair or impermissible prejudice in the respondent's trial on all counts in the indictment. Accordingly, the discretion to order separate trials under s 133(3) has not been enlivened.

3. The reasons for upholding the State appeal disclose why the respondent's ground of appeal in CACR 22/13 has no reasonable prospect of success even putting to one side that it involves a departure from the respondent's application to the primary judge.

4. BUSS JA:  I joined in making the orders on 12 November 2013 for the reasons given by McLure P.

5. MAZZA JA:  On 12 November 2013, I joined with McLure P and Buss JA in allowing the State's appeal against the severance order made by Staude DCJ on 29 January 2013 (CACR 20 of 2013) and in dismissing the respondent's appeal against the same order (CACR 22 of 2013).  These are my reasons for doing so.  Throughout these reasons I will refer to WCM as the respondent.

6. There is no need for me to canvass the background facts and circumstances of the case.  I am grateful to McLure P for comprehensively and accurately describing them. 

7. I will deal with the State's appeal first.

8. There is no dispute that the joinder of all the counts on the one indictment was permitted pursuant to cl 7(3) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA) because they formed a series of offences of the same or a similar character. Accordingly, having regard to cl 9(1) of sch 1 of the CPA, the charges must be tried together unless a

court orders otherwise. Section 133(3) of the CPA allows for severance if a court is satisfied that the accused is likely to be prejudiced in the trial because of the joinder. The prejudice that is spoken of in that subsection is, as McLure P points out in her reasons, unfair or impermissible prejudice in the trial. It is not the prejudice caused to an accused by reason of the strength of evidence which is properly admissible.

1. Section 133(5) of the CPA provides that it is open to a superior court in deciding whether an accused is likely to be prejudiced by joinder, that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury and to so decide, irrespective of the nature of the offences charged and even if the evidence on one of the charges is inadmissible on another.

2. In its appeal, the State adopted the position that if the evidence with respect to counts 1 to 8 was not cross‑admissible in respect of the remaining counts, his Honour's severance order was correct.  The State having adopted that position, it is appropriate to determine the appeal on this basis.

3. The first question is whether the evidence is cross‑admissible. The answer to this question is dependent upon whether the evidence is admissible pursuant to s 31A of the Evidence Act1906 (WA).

4. Section 31A is in these terms:

   31A.    Propensity and relationship evidence

   (1)In this section -

   propensity evidence means -

   (a)similar fact evidence or other evidence of the conduct of the accused person; or

   (b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

   relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

   (2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

   (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

   (3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

5. If the relevant evidence is properly characterised as propensity evidence or relationship evidence it is admissible if:

   (a)the evidence would, either by itself of having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

6. Significant probative value is more than mere relevance.  It connotes a probative value which is important or of consequence.

7. Fair‑minded people are reasonable members of the general public who are not lawyers, but who have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances:  Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66]. The risk of an unfair trial is the risk that a jury will act illogically and find the accused guilty merely because he is a likely person to have committed such acts. When assessing the risk of an unfair trial, it is necessary to take into account any directions that might be given to the jury in an attempt to overcome the prejudice and their likely effect on the jury.

8. There can be no reasonable doubt that the evidence which supports counts 1 to 8 is propensity evidence as defined in s 31A(1)(a) and (b). It is evidence of the conduct of the accused and evidence of a tendency that the respondent has or had. Moreover, it is relationship evidence because it is evidence of the attitude or conduct the accused has towards a class of persons over a period of time.

9. I now turn to whether the evidence has significant probative value.  Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.  The fundamental factual issue for the jury to decide was whether the State had proved beyond reasonable doubt that the respondent had committed the acts alleged to constitute each offence. 

10. The respondent submitted that the conduct alleged in counts 1 to 8 did not have significant probative value because he was aged between 13 and 15 years when the offences were allegedly committed against VC and SC.  The respondent relied in part on what I said (Martin CJ agreeing) in APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59.

11. The facts of that case were materially different to the facts in the present case.  There, the respondent was charged with 28 counts of sexual offending against three of his natural children and a de facto child.  The State adduced evidence of uncharged acts allegedly committed by the respondent upon his two siblings when he was aged 10, until he was approximately 14 and 16 years of age.  The charged offences were alleged to have been committed against the complainants many years later, when the respondent was a mature adult.  There was no evidence of any offending between the events involving his siblings and those involving the complainants.

12. In that case I observed that there was a material difference between a sexual interest directed towards a person's siblings when a child and a sexual interest in that person's own children or stepchildren as an adult.  I further observed that there was no evidence to enable the jury in that case to reason that the respondent was more likely to have a sexual interest in his own children or stepchildren, having had a sexual interest in his siblings when he was much younger.  I noted that the youth of the respondent at the time of the uncharged acts was important.  I said that children in the range of between 10 and 16 years, most significantly at the younger end of that range, cannot be expected to have developed the same sense of moral responsibility as an adult [97] ‑ [99].

13. I hold to what I said in APC.  What differentiates the present case from APC is that in this case, unlike APC, the evidence to be adduced by the State is capable of showing that, from the age of 14 and on a regular and consistent basis until he was 31, the respondent had a sexual interest in young children who were part of his extended family group and that he acted on that interest.  As such, it is significantly probative in the proof of counts 9 to 34 and vice versa.

14. Further, in my opinion, fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.  This is because it is important that the jury see the respondent's offending conduct as a whole in the context that it is part of a pattern of sexual behaviour which started in his teenage years and continued well into adulthood.

15. It is relevant that the jury will be directed that it must not act illogically and find the accused guilty merely because he has committed counts 1 to 8.  The nature of the allegations in counts 1 to 8 is not such as would overwhelm a jury and cause it to reason illogically despite a direction to the contrary. 

16. For these reasons, the evidence of the conduct in counts 1 to 8 is cross‑admissible with respect to counts 9 to 34, pursuant to s 31A of the Evidence Act.

17. The respondent submitted that even if the evidence was cross‑admissible, there remained a discretion to nevertheless order severance pursuant to s 133(3) of the CPA. Counsel for the respondent submitted that severance was nevertheless justified because:

    (a)Longman warnings will be required with respect to each complainant.  The effect of such a warning will be progressively diminished as the warning is given for each complainant; and

    (b)the indictment is, by virtue of the number of counts contained in it, 'overloaded, complicated and/or unfair'.

18. Assuming without deciding that the claimed discretion exists, there would be no basis for it to be invoked in the appellant's favour.  There is no basis in fact or experience to the first submission made on behalf of the respondent.  As McLure P points out, trials involving multiple counts and multiple complainants are common, and nowhere has it been thought that this results in a reduction in the effectiveness of a Longman warning.

19. There is nothing to the allegation that the indictment in this case is overloaded, complicated or unfair.  The allegation is in fact no more than a bare assertion and is unfounded, on my assessment of the indictment and the prosecution brief.  The respondent cites in support of this submission the case of Macfie v The Queen [2012] VSCA 314. If anything, that case contradicts the submission made on behalf of the respondent. In Macfie, the indictment alleged 52 counts of sexual offending and involved seven child complainants.  The court dismissed the appeal, denying that there had been a miscarriage of justice by reason of the number of counts and the number of complainants. 

20. The respondent also submitted that his right to silence was compromised because, having regard to the number of complainants, he would have no practical choice but to give evidence, the implication being that the case against the respondent is strong and therefore the respondent will have to give evidence. 

21. This argument must be rejected.  Simply because a prosecution case is perceived to be strong does not give rise to any real or practical diminution in the right to silence.  It may be a relevant factor for the respondent to consider in making the choice whether or not to give and/or adduce evidence, but the choice remains his or hers. 

22. For these reasons, and with great respect to his Honour, there was no basis to sever the indictment as he did.

23. I now turn to the respondent's appeal:  CACR 22 of 2013. 

24. The respondent's arguments in support of this appeal were the same arguments made in response to the State's appeal.  Having rejected those arguments, the respondent's appeal must be dismissed.