The Queen v R[1997] QCA 277

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 109 of 1997

Brisbane

Before  Fitzgerald P.

Moynihan J.

Dowsett J.

[R. v. R]

THE QUEEN

v.

R

(Applicant) Appellant

Fitzgerald P

Moynihan SJA

Dowsett J

Judgment delivered    9 September 1997

Judgment of the Court  Separate reasons for judgment of each member

of the Court all concurring as to the orders made. 

Appeal allowed.  Conviction quashed.  Retrial ordered.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 9 September 1997

The thirty-six counts in the indictment to which the appellant pleaded not guilty are set out in the reasons for judgment of Dowsett J.  As his Honour there explains, the trial was confined on the fourth day to the last 15 counts on the indictment.  Counts 22 to 29 alleged offences against L, counts 30 to 33 alleged offences against J, and counts 34 to 36 alleged offences against N.  The jury disagreed in respect of counts 22 to 24, 26 to 29 and 36.  The appellant was convicted of only one of eight counts in respect of L, two of three counts in respect of N, and all four counts relating to J.  His convictions were for the following offences:

count 25 - attempted carnal knowledge by anal intercourse of a child under 12 years who was in his care (L);

count 30 - maintaining a sexual relationship with a child under 12 years who was in his care (J);

count 31 - indecent dealing with a child under 12 years who was in his care (J);

count 32 - indecent dealing with a child under 12 years who was in his care (J);

count 33 - indecent dealing with a child under 12 years who was in his care (J);

count 34 - indecent dealing with a child under 12 years (N); and

count 35 - indecent dealing with a child under 12 years (N).

One difficulty which arises from the course which was followed relates to the joinder of the counts alleging offences against L and J and N in a single indictment.  Ordinarily at least, that should not be done with counts alleging sexual offences unless all the evidence in relation to all the alleged offences is admissible in respect of each count.^[1]  That leads to the second problem.  The trial was conducted on the basis that all evidence in relation to all 36 counts in the indictment on which the appellant was arraigned was admissible in respect of each of the 15 alleged offences for which he was tried.  The test of admissibility was established by the High Court in Pfennig v. R.^[2]

The 36 counts involved seven complainants; the 21 counts not proceeded with alleged misconduct involving four complainants between 1 September 1984 and 27 September 1991; the 15 counts proceeded with alleged misconduct involving three different complainants between 1 June 1993 and 19 October 1995; and the 36 alleged offences included rape, carnal knowledge by anal intercourse, actual or attempted carnal knowledge, indecent dealing, unlawful and indecent assault, wilfully exposing a child under the age of 16 years to an indecent act, exposing a child to an indecent videotape, using force to procure a miscarriage, and unlawfully maintaining a sexual relationship with a child under the age of 16 years.  In my opinion, the test established by Pfennig could not be satisfied in those circumstances.  The test was failed at the threshold.  Proof of some of the other offences plainly would not be logically probative of some of the offences of which the appellant was convicted.

Accordingly, I agree that the appeal should be allowed, the convictions quashed and the appellant should be retried.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 9 September 1997

R was charged on one indictment with 36 counts of sexual offences of various kinds against a total of seven children which were alleged to have been committed over a period of 11 years.  Counts 1 to 21 were referred to as the R group and counts 22 to 36 as the T group.  Details of the counts and the verdicts are to be found in the reasons of Fitzgerald P. and Dowsett J.  I will not repeat them here.

There was an unsuccessful application by the appellant at the commencement of the trial for separate trials of the R and T counts.  The trial then commenced on the basis that all of the evidence in respect of all (each) of the alleged offences was admissible in respect of all (each) of the other offences.  By the fourth day of the trial it had become apparent to the trial judge that the complexity and volume of the evidence jeopardised the ability of the jury to deal with the trial as it was then constituted and it proceeded in respect of the T group of offences.  One of the consequences of this was that the trial proceeded on the basis that the evidence in relation to all of the 36 counts on the indictment upon which the appellant had been arraigned was admissible in respect of each of the fifteen offences in respect of which a verdict was ultimately taken. 

The appellant was convicted in respect of seven of the counts which went to the jury, the jury disagreed in respect of eight.

The first difficulty which arose from the course adopted was the joinder of the various counts on the one indictment.  Ordinarily that should not occur with counts alleging sexual offences unless all the evidence in relation to all the alleged offences is admissible in respect of each offence;  de Jesus v.  R.  ^[3] Even taking the T group (three children over three 3½ years) that was not the case here.

As Dowsett J. demonstrates, the relevance of the evidence of other complaints to each count of the indictment in this case did not involve a discretionary test of inadmissibility involving a balancing of probative value and prejudicial effect but rather the application of the approach laid down by the High Court in Pfennig.  ^[4]That is concerned with the probative value of a course of similar conduct (which may be criminal) of sufficient cogency in establishing a particular offence the subject of a charge.  If there is no logical relevance the evidence cannot be admitted.  If there is logical relevance, then the considerations canvassed in Pfennig must be taken into account.  Again, as Dowsett J. demonstrates that did not occur in this case in which it is far from obvious that all the evidence received was logically relevant or contained connecting characteristics in respect of the T counts.

There was, moreover, evidence of association between the members of the T group, two of whom made allegations against the appellant after they told him he had been charged with other misconduct.  The issue of concoction needed to be addressed in terms of the decision in Hock.^[5]

There is no attempt in summing up to identify the particular count or counts to which individual aspects of a very large and diverse body of evidence might relate.  This requirement cannot be satisfied (and in fact is violated) by a direction to the effect that the jury could infer that because the accused had committed one offence against  a complainant on one occasion it was probable that he’d done so on other occasions.  That is what appears to have occurred, for example at p. 817 of the record where the jury were directed–

“Now apart from that evidence bearing on the particular charge arising out of that incident relating to L, that’s count 28 of the indictment, it may bear on other charges relating to L, because if accepted, it may indicate flagrant sexual misconduct with L which human experience may suggest would be unlikely to be isolated, simply to one incident.”

I agree that the appeal should be allowed, the convictions quashed and the appellant should be retried.  It is plain that careful consideration needs to be given to the charges dealt with by a new indictment or indictments and to identify the basis of the admissibility of evidence alleged in support of each count prior to the presentation of the indictment.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 9 September 1997

The appellant was convicted in the District Court at Maroochydore on 19 February 1997 on three counts of indecent dealing with a child under 12 years in his care, one count of attempted unlawful carnal knowledge of a child under 12 years in his care, one count of maintaining a sexual relationship with a child under 12 years in his care and two counts of indecent dealing with a child under 12 years.  He was arraigned on an indictment containing 36 counts and pleaded not guilty to all of them.  Counts 1 to 21 have been described compendiously as the "R group", although not all of the complainants were from the R family.  Those charges alleged various sexual offences against four girls between 1984 and 1991.  The balance of the indictment concerned complaints by one boy and one girl named T and one girl named N, occurring between 1993 and 1995.  These are described as the "T group".

Counts 1 to 9 all alleged offences committed against D. 

• Count 1 was of maintaining a sexual relationship with a child under the age of 16 with a circumstance of aggravation that he committed rape, between 3 July 1989 and 12 July 1990.

• Count 2 was of indecent dealing between 1 September 1984 and 1 August 1985.

• Count 3 was of rape between 1 August 1985 and 31 January 1986. 

• Count 4 was of rape between 1 May 1987 and 30 June 1987.

• Count 5 was of rape between 1 April 1988 and 30 June 1988. 

• Count 6 was of rape between 1 September 1989 and 1 November 1989. 

• Count 7 was a count of rape between 1 March 1990 and 30 April 1990. 

• Count 8 was of using force to procure a miscarriage between 1 April 1990 and 1 June 1990.

• Count 9 was of rape between 1 June 1990 and 12 July 1990. 

Counts 10 to 19 alleged offences committed against S

• Count 10 was of indecent dealing between 1 September 1984 and 1 November 1984

• Count 11 was of rape between 1 August 1985 and 1 January 1986

• Count 12 was of rape between 1 May and 30 June 1987

• Count 13 was of rape between 1 April and 30 June 1988

• Count 14 was of rape between 1 March and 30 April 1990

• Count 15 was of rape between 1 June and 12 July 1990

• Count 16 was of rape between 1 March 1991 and 27 September 1991

• Count 17 was of rape between 1 March 1991 and 27 September 1991

• Count 18 was of unlawful and indecent assault between 1 March and 27 September 1991

• Count 19 was of using force to procure a miscarriage between 1 March and 27 September 1991

Count 20 alleged indecent dealing with M between 1 March and 27 September 1991.

Count 21 alleged wilfully exposing A, a child under the age of 16 years to an indecent act.

As to the T offences, counts 22 to 29 alleged offences committed against L.

• Count 22 was of maintaining a sexual relationship involving actual or attempted carnal knowledge and indecent dealing with a child under 12 years and in his care between 1 June 1993 and 19 October 1995.

• Count 23 was of exposing a child to an indecent video tape between 1 July and 31 August 1993.

• Count 24 was of indecent dealing between 1 July and 31 August 1993.

• Count 25 was of carnal knowledge by anal intercourse between 1 July and 31 December 1993.

• Count 26 was of indecent dealing between 13 December 1993 and 19 October 1995.

• Count 27 was of indecent dealing between 1 September and 19 October 1995.

• Count 28 was of indecent dealing between 6 August 1994 and 19 October 1995.

• Count 29 was of indecent dealing between 1 October and 19 October 1995. 

Counts 30, 31, 32 and 33 alleged offences committed against J.

• Count 30 was of maintaining a sexual relationship with a child in his care between 1 June 1993 and 19 October 1995.

• Count 31 was of indecent dealing between 1 July 1993 and 31 August 1993.

• Count 32 was of indecent dealing between 1 December 1993 and 31 August 1994.

• Count 33 was a charge of indecent dealing on or about 17 October 1995.

Counts 34, 35 and 36 alleged offences committed against N.

• Count 34 was of indecent dealing between 16 June and 19 October 1995.

• Count 35 was of indecent dealing between 16 June and 19 October 1995.

• Count 36 was of wilfully exposing a child to an indecent video tape between 16 June and 19 October 1995.

At the beginning of the trial, the appellant sought to sever the R and T counts.  In making submissions in response to that application, the crown prosecutor submitted that the evidence of each complainant was admissible on the trial of all other charges.  This was based upon an assertion that:

"... the only reasonable explanation for each of these complainants to make these allegations is that the accused is guilty."

The prosecutor referred to the decision of the High Court in Pfennig v R (1994-5) 182 CLR 461 and then said:

"So in essence, [it] sets down a test which is at its basic that the probative value must outweigh its prejudicial value, its probative value is to be judged by is [it] the only explanation that the accused is guilty.  Now that particular formulation is also being (?) considered by his Honour Mr Justice Pincus in W, particularly at p. 3.  At the middle paragraph where he has explained the principle in Pfennig, that the objective and (?) probability of the evidence having some innocent explanation is such that there is no reasonable view of it, other than as supporting an inference that the accused is guilty.  And of course support for an inference may be weak, or strong."

This last statement is somewhat misleading.  Pincus JA actually said, concerning Pfennig:

"Support for an inference may be weak or strong, but other passages in the [Pfennig] judgment make it clear that only strong support will do."

See R v.  W (C.A. No.  62, 20 August 1996, unreported at p.  3).

Much of what followed suggests that the prosecutor wrongly considered that Pfennig prescribed a discretionary test of admissibility, involving a balancing of probative value and prejudicial effect.

The relevance of the evidence of the other complaints to each charge was explained thus:

"The R case involves S and D, they were the children of the accused's then de facto between the years of 1984 and 1990.  Allied to that case is the case against M and A, the accused's nieces, who observed some of the offences against S and also had offences committed against them.

The T children are L and J, they are the children of the de facto that the accused resided with, this time between the years 1993 and 1995 and also N, who was a girl that lived with them for a short period of time and would visit on occasions and she observed an offence against L, and L observed an offence against her and there were other touchings she alleges.

Your Honour there are four particular factors, which I would draw to your Honour's attention.  The first is that in each instance, the accused formed a relationship with a woman with young children and that those children have complained of sexual misconduct by the accused. ... 

Your Honour, the second factor, I particularly draw your Honour's attention to is the nature of the sexual misconduct that is alleged to have occurred against the complainants, and particularly D and S and L and J, your Honour it is essentially of a very similar nature, the way it commenced, the nature of the actual allegations.

Now there are little things, like he showed both of those groups pornographic videos.  Thirdly there is, that in each instance, the accused is alleged to have committed offences with other persons, other complainants, present.  Say, for example, with D and S, he would commit the offences with the others present.  Your Honour, that's what your Honour may think an unusual feature.  He does the same thing with the T children, he commits an offence against J with L present, he commits offences against L and N when they were together.  He also commits offences against S with M and A there."

"... Your Honour, there are other factors in the way each of the complainants described what happened to them, which is similar.  For example, D and S and L, all described the accused would have them look at their mother naked or having intercourse. 

These are factors that lead to the conclusion that these cannot be concocted stories, and your Honour I might mention that there is no risk of the hoc [Hoch?] danger, where there is a possibility of joint concoction."

"There is also similarity in the things the accused would say to them, particularly in relation to not telling their mothers what happened and what would happen if they did."

In his Honour's reasons the learned trial Judge identified the particular feature of each of the cases which he considered to be relevant for present purposes.  They were:

1. "In the case of each of these two groups of offences the accused was in a relationship with a woman with young children and those young children of each of those woman have complained of various sexual misconduct."
2. "In the case of the R children each of them described numerous acts of indecency including sexual intercourse; many occurring in the presence of other children at the accused's insistence."
3. "Both [R] children describe being shown pornographic videos by the accused as an integral part of the interference."
4. "The T children also describe numerous acts of indecency, sexual interference including, at least on the part of L, completed anal intercourse.  They do not, with one exception describe these acts occurring in the presence of each other.  Each of them describes being shown pornographic videos as an integral part of the accused's conduct with them."
5. "N describes incidents of touching of her by the accused and one incident at least where she was in the company of L when required to handle the accused's penis."
6. "At least the T children and the R children, if not the other children also, give similar accounts about being told not to tell about what was occurring."

The learned trial Judge appears to have ruled that all of the evidence in respect of all of the alleged offences was admissible in respect of all of the others.  The trial commenced, but by day four it became apparent to his Honour that the complexity and volume of the evidence were such that it was unlikely that the jury could manage the indictment in the form in which it then stood.  He was supported in this view by a note received from the jury.  He therefore determined to sever the R counts from the T counts and to proceed only on the T counts.  The appellant was convicted on seven counts.  The jury disagreed on eight counts. 

Because of what has happened in this trial it is appropriate to outline the effect of three decisions of the High Court which currently regulate aspects of trials of this kind.  The first is the decision of the High Court in Pfennig v. R. (supra).  In that case the High Court was concerned with the admissibility of what is sometimes called "propensity" evidence, by which evidence the crown seeks to prove the offence charged by leading evidence of other, usually similar, criminal misconduct by the accused person.  Pfennig was a murder count, but the problem more often arises in cases such as the present one.  Although I hesitate to reduce the careful reasoning of their Honours to discrete and limited propositions, I consider that in general, a trial Judge should be guided by the following considerations which emerge from Pfennig:

1. Propensity evidence which merely shows that the accused is of bad disposition or has previously committed offences, but has no other relevance, should not be received into evidence.
2. Such evidence will, however, be admissible where its probative value in connection with the offence(s) charged is sufficiently high.
3. To be admitted in evidence the evidence of propensity must have a specific connection with the commission of the offence(s) charged, a connection which may arise from the fact that the evidence gives significant cogency to the prosecution case or some aspect or aspects of it.
4. The trial Judge must determine whether or not such evidence is admissible.
5. The evidence will only be admissible if, when taken with the other evidence in the case, there is no reasonable view of the evidence which is consistent with the innocence of the accused.

From a trial Judge's point of view, difficulty is often experienced in identifying the logical basis upon which it is said that such evidence is probative of the offence charged.  One suspects that very often, the crown seeks to lead evidence of other criminal misconduct whenever it perceives a chance of doing so.  Conversely, the defence intuitively resists the admission of such evidence.  Pfennig, especially at pp. 482-3, gives examples of the use of such evidence and how it may be logically probative in particular cases.  Unless the evidence in a particular case can be shown to be relevant in a logical way, it cannot be admitted.  There is no need to resort to Pfennig if logical relevance cannot be shown.  If relevance is shown, the trial Judge must decide the question of admissibility by reference to Pfennig.

The second decision is Hoch v The Queen (1988) 165 CLR 292.  That case was the precursor of Pfennig.  It concerned an indictment which alleged sexual misconduct by the accused with three different boys who were, at the time, residing in a children's home.  The case was concerned with admissibility on each count of the evidence of the other two complainants.  At p. 296 Mason CJ, Wilson and Gaudron JJ said:

"In 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 event or events in issue.  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 joint concoction there is another rational view of the evidence.  That rational view - viz joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies.  It thus destroys the probative value of the evidence which is a condition precedent to its admissibility. 

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction.  That is a matter to be determined, as in all cases of circumstantial evidence, in the light of commonsense and experience.  It is not a matter that necessarily involves an examination on a voir dire.  ...  if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction, then, as a matter of commonsense and experience, the evidence will lack the degree of probative value necessary to render it admissible."

Brennan and Dawson JJ said at p. 301:

"In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant.  How does the evidence tend to prove that issue?  In cases of the present kind, evidence of the commission by an adult male of indecent acts with a number of boys has sometimes been admissible on a count charging him with an indecent act committed with a particular boy.  The ground on which such evidence has been admitted has been variously identified:  the evidence has been held to be relevant to show 'a system' ... or to rebut a 'defence' of innocent association ...  or to confirm the truthfulness of the complainant's evidence in the particular case ...  Thus in Kilbourne, Lord Hailsham of St. Marylebone LC said:

'When a small boy relates a sexual incident implicating a given man he may be indulging in fantasy.  If another small boy relates such an incident it may be a coincidence if the detail if insufficient.  If a large number of small boys relates similar incidents in enough detail about the same person, if it is not conspiracy it may well be that the stories are true.  Once there is a sufficient nexus it must be for the jury to say what weight is given to the combined testimony of a number of witnesses.'

Whichever ground has been assigned for admitting evidence of similar facts, the courts have denied that its probative force is to be found in the mere propensity of the accused to commit indecent acts with boys ...  The distinction between mere propensity on the one hand and 'system' or non-innocent association on the other seems extremely fine.  And there may be little distinction between evidence tending to prove the truthfulness of a complainant's evidence and evidence tending to show that the accused was likely to have committed the indecent act to which the complainant testifies.  It is not necessary to dwell on these distinctions in this case, for it is not disputed that, if there were no real chance of a conspiracy among the complainant boys, their evidence would have been admissible on all counts.  But it is clear that the possibility of a conspiracy is critical to the assessment of the force of each boy's evidence to prove a system or to rebut a defence of innocent association or to confirm the truthfulness of the evidence of another boy.  Admissibility of evidence of this kind depends not only on similarity between the acts which the prosecution seeks to prove but, more importantly, on the non-existence of  'a cause common to the witnesses'.

If there is a real danger of concoction of similar fact evidence it is consistent with the attitude which the law adopts towards evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof.  That consideration is of special importance in cases where the fact to be proved is inferred not from similar facts which have been clearly established but from the concatenation of the testimony of a number of witnesses who depose to the occurrence of similar facts."

Their Honours continued:

"In this court, counsel for the respondent sought to relegate the question of conspiracy to the status of a factor bearing on the exercise of the general judicial discretion to exclude evidence which, though otherwise admissible, would be unduly prejudicial to an accused ...  Whatever scope there may be for the exercise of the general discretion to exclude admissible similar fact evidence, the existence of the general discretion does not subsume the question of conspiracy and remove it from its central place in the assessment of the probative force of the evidence on which the admissibility of the evidence depends.  It is a question which must be addressed by the trial judge when the admissibility of the similar fact evidence falls for determination.  In the ordinary course, credibility is a question for the jury.  That is so even with similar fact evidence.  But in determining the admissibility of certain special classes of evidence it is inevitable that the trial judge must make an initial determination of questions of fact which the jury may ultimately have to decide.  If the evidence is admitted, its probative force becomes a matter for the jury who may form their own view as to the possibility of a conspiracy among the witnesses to concoct their allegations."

Their Honours considered that the trial Judge's obligation to consider the question of concoction may arise even where the accused person or his counsel has not raised the matter (p. 304).

The third relevant decision is De Jesus v. The Queen (1987) 61 ALJR 1.  The High Court was there concerned with the circumstances in which different offences of a sexual nature may be joined in the one indictment.  The case is authority for the proposition that in sexual cases, different counts of sexual misconduct ought generally not be joined on the one indictment unless the evidence in respect of each count is admissible on all of the others.  The Court of Criminal Appeal, in R v B [1989] 2 Qd.R. 343, considered an indictment charging a large number of offences alleged to have been committed by the accused against his three daughters, A, B and C.  Three of the counts alleged misconduct against each of them respectively, which conduct was said to have occurred whilst all three were present.  The remaining counts all related to alleged misconduct against C only.  The court held that although the evidence of misconduct against A and B was admissible on the charges of offences allegedly committed against C, evidence of the offences committed against C alone was not admissible in respect of the counts of misconduct against A and B.  In those circumstances, the court considered that there should have been separate trials of the latter counts and quashed the convictions on those counts.

It is now appropriate to consider the trial and its outcome.  I am presently concerned only with appeals against the various convictions which were recorded.  Technically, those charges about which the jury disagreed are not the subject of this appeal.  However, to understand what occurred at the trial, it is necessary to look at the whole of the proceedings.  This can best be done by summarising the evidence of the three complainants, L, J and N. 

L was born on 29 January 1986.  He was therefore aged between 7 and 9 at the times of the alleged offences and almost 10 at the time of the record of interview in October 1995. At the time of the trial in January 1997, he was 11.  The appellant first commenced to live with the family in Cairns in June 1993.  Subsequently, they moved to the Sunshine Coast where they lived from December 1993 until August 1994.  They then moved to a small farm on the Sunshine Coast.

Allegations were first made against the appellant in October 1995 by members of the R group.  After L and J were told that the appellant had been charged with molesting or raping other people, L alleged to his mother that "he's been sticking his dick up our bums - mine and J’s - in the mornings when you're not awake."  He also complained that the appellant had been "playing with our dicks and so on."  He alleged that similar misconduct had occurred with J’s friends and with his friends when they visited.  At one stage, he specifically alleged that he had seen the appellant "sticking his dick up their bums and stuff like that", this being a reference to two of his friends O and F. It is common ground that both boys deny being involved in any such misconduct. 

l said that the appellant's misconduct commenced in Cairns about a week after he moved into the house.  He was asked "Do you know how it started?"  He replied "Um.  Well.  That video.  He showed us that and told us that we were going to do it and each night he'd show us a bit of the video and um and then he started doing it with us".  He described one specific occasion when his mother was away getting cigarettes.  He said that whilst she was away, the appellant roused him from sleep, showed him the video and then went into J’s room and "started doing it to J".  He "stuck his dick right up her".  This was the only occasion on which L saw the appellant do anything with J.  There was no misconduct towards L on this occasion.  Subsequently, he said that on this occasion the appellant "started sticking his dick up J’s bum".  The incident was interrupted when his mother returned from getting cigarettes and blew the horn on her car.  L was sent back to bed, and the video was put away.  J did not wake up.  The appellant's penis was said to have been "floppy" during this act which lasted about a minute.

About two nights later, L woke up about 5:00am to find the appellant playing with his (L’s) penis.  He said that similar misconduct occurred thereafter about three times each week while they were in Cairns.  On one occasion, the appellant took him into his mother's bedroom and removed the sheet, showing her naked.  On one occasion, L woke up to find that his pants had been removed.  He said that the appellant asked if he wanted him to "put my dick up your bum".  L said, "No".  The appellant said, "Well, okay. You can go back to sleep".  Subsequently, he woke him again and said, "I'm putting my dick up your bum".  L said, "I don't want you to" but he did so.  On this occasion, his penis was stiff.  This offence was repeated on many occasions.  On one occasion at the farm, the appellant used J’s lotion cream as a lubricant.  Most of the incidents occurred early in the morning.  The appellant regularly rose early whilst L’s mother tended to sleep late.  L said that he had seen the video four or five times.  It showed sexual activity.

On occasions, the appellant would get L to play with his (the appellant's) penis and to insert carrots and cricket stumps into the appellant's anus.  The appellant also tried to put L’s penis into his anus and encouraged L to play with his testicles.  Whilst they were at the Sunshine Coast house, they first engaged in mutual penis‑sucking.  After they moved to the farm, the appellant ejaculated on a number of occasions in the course of these incidents.  Some of the incidents there occurred in a shed.  L did not tell his mother about these incidents because the appellant had told him to be on his side and because the appellant bought him sweets and drinks.  The appellant had also said that they were not allowed to tell anybody.

The incidents involving the boys, O and F were said to have occurred on separate occasions.  L said that the appellant played with his own penis in front of them and spoke to them of sexual matters.  He did not touch either of the other boys, although he did get them to touch him on the penis which he had extracted through his fly.  As I have said, both boys deny these incidents.  L also said that he and N had played with the appellant's penis.

J was born on 29 June 1988 and was therefore five at the time at which the offences commenced, seven at the time of the police interview and eight at the time of the trial.  J complained that the appellant had been "sticking his dick up both private parts".  This first happened when they were at the Sunshine Coast house.  She said that he didn't ever get his penis inside her.  He also asked her to play with his penis, which she did.  On occasions at the farm, he ejaculated.  These incidents occurred in her bedroom.  She had also seen an adult video.  She said that he did not do anything to her whilst L was present, nor had she seen him do anything with L.  On occasions, he asked her to suck his penis.  He told her to keep their relationship a secret.  She also recalled an occasion when a friend called K visited.  She said that the appellant did the same things to K as he had done to her.  K confirmed seeing the appellant having intercourse with J but made no allegation of such conduct against herself.

N was born on 16 August 1986.  She was therefore about nine at the time of the three offences allegedly committed against her and at the time of the interview.  She was ten at the time of the trial.  The families had known each other in Cairns and when N’s family moved to Brisbane in June 1995, they initially stayed with the T’s who were then on the farm.  N said that the touching started a couple of weeks after their arrival. She said that whilst they were breaking up bread to feed the animals on the farm, "R started touching me and everyone else".  The first incident occurred in the house.  The touching was through her clothing.  She said that the appellant also asked her to "touch his thing" through his clothes.  She was asked, "Did he suggest that you shouldn't tell anybody?  What did he say?" to which the girl replied, "Don't tell anyone about this.".  This questioning was perhaps unfortunate.  There was also a suggestion that there would be serious trouble if she told.  Similar incidents occurred in the lounge room and pantry.  The incidents occurred about twice a week.

She was asked, "Did it happen anywhere else?".  She said, "No".  It was then suggested to her that L had talked about the bread shed and asked whether she remembered being in the bread shed with L and R.  She then volunteered, "Now I remember.  And in the toolshed mostly.  Well not mostly.  About the same.  The toolshed and the bread shed.   The toolshed is about a couple of centimetres away from the bread shed.".  She was asked, "What can you tell me about these sheds?".  She explained, "Um he done the same thing with his clothes on."  She said that sometimes L was there on these occasions.  She said that she had never touched the appellant's penis other than through his pants but when she was asked, "Are you sure you haven't?".  She replied, "Ah just a sec.  Yes.  Yes."  She then said that this has happened in the toolshed with L.  She said that, "All we had to was pull it and that was it.".  He ejaculated.  She said that this was the only occasion on which she saw the appellant do anything to L.

In a second interview she was asked whether she had seen a video.  The effect of her evidence was that a video had been played on one occasion, but that she had seen only a very small part of it and then had gone to play the organ.  It was a sex video.  She had seen a naked lady in bed with a man, "sucking his dick".

It is possible now to test the admissibility of the evidence of each of the three complainant children in the T group in respect of the counts against each of the other children in that group.  I will do this by reference to the alleged points of similarity referred to in the submissions by the crown prosecutor and in his Honour's findings. 

Firstly, it was said that some of the children in the R group were living with the appellant at the time of the alleged offences against them as were two of the children in the T group.  Concentrating for the moment on the T complaints, both L and J were living with him at the time of the alleged offences, and N may have been living with him at the time of at least one of the offences against her.  However that could not be called a distinctive feature.  Unfortunately, offences of this kind usually occur in circumstances in which the children in question are, either permanently or temporarily, in the custody of the accused person.  One imagines that there is rarely opportunity for a man with predatory sexual predilections for young children to find victims wandering at large.  This evidence showed only that he had a propensity for taking advantage of opportunities as they presented themselves.

The reference to pornographic films is somewhat misleading.  It was said by the crown that the use of the video tape was a common aspect of the various offences.  His Honour considered this to be "an integral part of the interference".  However that was simply not the case with the T children.  L said that at any early stage, they were shown the video tape and told that they would be doing what was shown in the video.  He also saw it on subsequent occasions, but it seems not to have been part of any of the actual offences charged.  The only reference made to it in connection with any of the offences was that prior to the appellant's going into J’s room with L and having anal intercourse with her, the two of them watched the video.  It was not connected in any way to any of the other specific incidents which L related.  Although J had seen it at some time, she also did not relate it to any particular offence.  N had seen only a very small part of it, and again it was not related to any offence.  Such a video may be used to arouse the interest of a child and then to capitalise upon that interest to facilitate the child's violation.  However there is no real suggestion that this happened here.  The first offence alleged against L occurred while he was asleep.  The evidence suggested that many offences against him commenced in that way.  There was no suggestion that the appellant sought to encourage the children to emulate the conduct shown on the video.  Although showing the video to the children may have constituted an offence, it cannot be said that it was an incident of any of the other specific charges allegedly committed against any of the three complainants. 

It was said that a number of the offences were committed in the presence of other children, suggesting that this was some sort of common characteristic.  However, within the T group, this was not a recurring feature.  L said that only on one occasion did he see the appellant do anything to J.  As J was asleep at the time, she was not aware of this incident.  She said that no incident occurred when she and L were both present.  As for N, her evidence was primarily of touching through the clothes and not in the presence of other persons.  It is true, however, that when prompted by references to L and the toolshed, she volunteered that L had occasionally been present and that an incident had occurred in the toolshed.  She seemed to speak of only one such occasion.  L was also only aware of one occasion.  L’s evidence of misconduct involving his two friends was of little value in view of the denials by those boys.  J gave evidence of incidents involving K.  The latter's version of events was rather different, although it was of sexual intercourse with J in K’s presence.

Although some of the offences were committed when more than one child was present, there is no basis for inferring that it was the appellant's preferred mode of operation.  Rather, it seems that he merely took advantage of opportunities as they arose.  There is no indication that he tried to arrange for other children to be present whilst he was committing a particular offence.

It was also said that the children were told not to disclose what had happened.  Whilst one can readily accept the probability of this having occurred in each case, it is difficult to attribute to it the quality of striking similarity to which reference has been made.  One imagines that the circumstances in which such offences occur would readily suggest to the victim that the offender desired secrecy.  Further, at least in L’s case, the suggestion was that the appellant tried to rely on bonding rather than threats.

The "striking similarity" test is one way in which evidence of other criminal conduct may acquire the compelling probative effect to which reference is made in Pfennig.  The test will not be satisfied by strenuous attempts to find anything which might possibly be described as being a relevant similarity in the hope that the accumulation of a sufficient number of them will lead to a tipping of the balance in favour of admissibility. Similarity, by itself, is not enough.  The similarity must be capable of proving some aspect of the offence charged.  In this case, the striking similarity was said to demonstrate the unlikelihood of all complainants making similar complaints.  On the evidence, this man certainly took advantage of opportunities as they presented themselves, but the conduct with L was not strikingly similar to that with J or that with N.  All involved sexual misconduct, but that is not enough.  The range of misconduct with L was very wide, including penetration.  It was not so wide in the case of J, and there were inevitable differences simply because she was a girl.  Again, there was penetration.  In N’s  case there was only a limited amount of misconduct and no penetration.  It is true that the misconduct all occurred at home and with warnings of the need for secrecy, but this hardly leads to the conclusion that there was such a similarity in the complaints as to exclude the possibility of coincidence unless it is sufficient that the complainants made allegations of sexual misconduct at or about the same time, which I doubt.

This raises a further criticism of the admissibility of the evidence of the three children in the T group.  The decision to admit the evidence took no consideration of the decision in Hoch.  Although his Honour turned his mind to the possibility of concoction (R.25), this appears to have related only to the possibility that there had been cross–fertilisation between the R group and the T group.  His Honour said:

"It seems on the material that has been put before me that these two groups of children were separated both in time and place.  In other words, they were not one group of children mixing with each other during the occurrence of the events, which they have described."

That fails to take account of the fact that there was very close contact between L and J at the relevant time and also, it seems, between L, J and N.  It should be noted that when first questioned by the police, both L and J failed to make allegations against the appellant.  Only after they had been told that the appellant had been charged with other misconduct did they volunteer their allegations.  Further, their mother's evidence suggests that  their complaints were somewhat ambiguous.  It cannot be said that there was no question of the possibility of concoction requiring investigation by the trial Judge before he ruled on the question of admissibility.  His Honour did not address that question.  He had a duty to do so pursuant to the decision in Hoch.  This court also has a duty to intervene to correct that error, notwithstanding the failure by counsel to appreciate the significance of it.  There was an unfortunate tendency to treat the case as involving charges of misconduct against the R group as a whole and against the T group as a whole, which resulted in there being no attempt to address the question of admissibility of evidence in connection with individual charges.  This was undoubtedly a potentially tedious and time consuming activity, but that is not to the point.

I have not found it necessary to discuss in detail the evidence of the R group, although I have considered the evidence of the principal complainants.  As the evidence of other children in the T group was erroneously received in respect of numerous counts, there must be a new trial.  It is not necessary that I analyse the R evidence in the same detail.  I am not suggesting that none of the R evidence is relevant to any of the T counts.  However, the question of admissibility on each count must be determined in accordance with Pfennig and Hoch.

Two other observations must be made.  The prejudicial effect of the inadmissible evidence was, in my view, exacerbated by the directions given by the learned trial Judge as to its use.  His Honour said at p. 822 of the record:

"The relevance of all of this evidence is not - is not to create an overwhelming prejudice against the accused man, so that a tribunal of fact such as yourselves would simply shut your mind to any other view than that he was guilty of everything that is said about him.  That is not the purpose of it at all.  That would be quite wrong to approach the matter in that way.  If a tribunal of fact was to approach the matter in that way, no person could receive a fair trial.

As I directed you earlier, a critical question is whether you are satisfied of the truth and accuracy of the evidence of L with respect to the charges relating to him, J with respect to the charges relating to her and N with respect to the charges relating to her.  Has it been proven to your satisfaction beyond reasonable doubt the events each described with respect to each charge happened and involved the accused.

In considering that, you are entitled to consider the accounts of D, S, M, A and I (the R complainants), along with the evidence of L, J, N, K and P.  You consider the likelihood or unlikelihood of these groups independently or apparently independently, providing the descriptions of the accused's behaviour you heard in evidence.  Provided of course, you are satisfied that their accounts were independent of each other.

Was it sheer coincidence that these persons, or each grouping, could manufacture the detailed descriptions, including such things as involving more than one child at a time, involving others in watching; for instance, having a look at Mrs T asleep with no clothes on, which L said the accused wanted him to do, watching the accused having sex with Mrs Ridgreway, the mother of d and s, which they said he wanted them to do, such things as showing of pornographic material on the video, which seemed to precede sexual conduct, the persuasion to go without clothing, that it was unhealthy, was healthy to let the body breathe."

His Honour then went on:

"I direct you as a matter of law that unless the prosecution satisfies you beyond a reasonable doubt, there is no other reasonable explanation for this coincidence of accounts of sexual misconduct other than that the accused did do what it is said he did, then this coincidence of accounts is worthless.  If the prosecution does so satisfy you that there is no reasonable explanation for this coincidence of accounts or sexual misconduct other than that what L and/or J and/or N says is true, then the fact of the coincidence of the accounts obviously supports the evidence of L and/or J and/or N."

The difficulty with this is that it re-inforced the in globo approach to the task which the jury faced and failed to identify the charges to which individual aspects of the evidence might relate.  Where propensity evidence is admitted, the trial Judge should give careful and specific directions as to its use.

The second problem with the charge occurs at p. 817 of the record, where his Honour said of the charges allegedly committed against L:

"Now apart from that evidence bearing on the particular charge arising out of that incident relating to L, that's count 28 of the indictment, it may bear on the other charges relating to L, because if accepted, it may indicate flagrant sexual misconduct with L which human experience may suggest would be unlikely to be isolated, simply to the one incident."

A similar passage appears on p. 818 in connection with the charges concerning J and later on that page, a similar passage relates to the charges concerning N.

I do not quibble with the suggestion that evidence of a continuing pattern of sexual misconduct against one child may indicate that the accused is attracted to that victim, and that it may be open to a jury to infer a continuing attraction.  I challenge, however, the proposition that a jury may infer from the commission of one offence that the accused person is likely to have committed other similar offences against the same victim, simply because "human experience may suggest that if the accused man had such an interest as that ... then this would be unlikely to be an isolated incident."  The jury was obliged to consider the evidence in support of each count separately.  It would have been inconsistent with this duty to infer that because the accused had committed one offence against a complainant on one occasion, it was probable that he had done so on more than one occasion.

I suspect that difficulties are arising in applying Pfennig because counsel are placing too much importance upon the fact that the evidence in question discloses other criminal conduct by the accused.  This approach tends to confuse the issue.  The significance of propensity evidence will not generally be that it constitutes another criminal offence but rather that the evidence has some logical probative value in connection with the offence charged.  Only if the evidence has that quality will it be necessary to consider the special rules established by Pfennig.  Care must be taken in formulating the logical probative effect said to be attributable to the evidence in question.  Only if such effect can be demonstrated will the evidence be admissible, quite apart from the decision in Pfennig.  The Pfennig test need not be considered until the primary test of relevance has been satisfied.  Further, once it is appreciated that all of the evidence of each complainant within the T group may not be admissible on all of the charges in that group, the problem contemplated by the High Court in De Jesus arises.  I very much doubt that all of the charges in the T group can proceed together. 

The convictions should be quashed.  There should be new trials in respect of all of them.