The Queen v Robertson[1997] QCA 63

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 339 of 1996

C.A. No. 386 of 1996

Brisbane

THE QUEEN

v.

JOHN TRAVERS ROBERTSON

Appellant

Fitzgerald P

Davies JA

Ambrose J

Judgment delivered 4 April 1997.

Joint reasons for judgment of Fitzgerald P. and Davies J.A., separate reasons of Ambrose J. concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, THE APPEAL ALLOWED, AND THE SENTENCES IMPOSED IN THE DISTRICT COURT SET ASIDE.

THE APPELLANT IS SENTENCED TO CONCURRENT TERMS OF IMPRISONMENT OF FOUR YEARS FOR THE OFFENCE OF ADMINISTERING A STUPEFYING DRUG AND ONE YEAR FOR THE OFFENCE OF INDECENT ASSAULT.

JOINT REASONS FOR JUDGMENT - FITZGERALD P AND DAVIES JA

Judgment delivered 4 April 1997

The appellant has appealed against his conviction in the District Court at Southport on 1 August 1996 of offences of administering a stupefying drug or thing to Simone Lisa Trees and unlawfully and indecently assaulting Ms Trees in Cairns on or about 6 April 1994.  The appellant has also applied for leave to appeal against sentences of imprisonment for six years in respect of the first offence and two years in respect of the second offence.  Although a number of grounds were set out in the appellant’s notice of appeal against conviction, the appeal was confined by both the appellant’s written outline and oral submissions to the proposition that evidence related to incidents involving three witnesses, Mss. Portelli, Reed and Cohen, ought not to have been received, and the reception of that evidence rendered the convictions of the appellant unsafe and unsatisfactory.  No submission was made on behalf of the appellant that, if his appeal is allowed and his convictions quashed, verdicts of acquittal should be entered.

The prosecution case against the appellant can be quite briefly summarised.  The appellant, the complainant, Ms Trees, and the witnesses Portelli, Reed and Cohen, were all Qantas flight attendants.  The appellant and Ms Trees had not met until they both worked an eight-day flight shift commencing 3 April 1994, which included a flight from Singapore which arrived in Cairns on 6 April, where the flight crew were to spend a few days on leave before they were rostered for further work.  The appellant, Ms Trees, and other members of the flight crew booked into separate rooms at the Hilton Hotel in Cairns.  A number of the flight crew, including the appellant and Ms Trees, dined at a seafood restaurant.  Ms Trees, who had not consumed any alcohol, was tired when she returned to her room in the hotel at about 10.00 p.m. 

During the dinner, the appellant had spoken at some length about the impending breakup of his relationship with his girlfriend and, when he telephoned Ms Trees shortly after she had retired to her room, she agreed that he might bring up a pot of hot chocolate for them to share; it seemed to be implicit in her evidence that she was willing to listen and talk to the appellant about the problem in his relationship with his girlfriend.

When the appellant arrived, Ms Trees was dressed in pants with a sash waistband, underpants, brassiere and a shirt.  The appellant prepared hot chocolate drinks for each of them and handed one to her.  She drank part of it and remarked on its sweetness.  Within minutes, she was seeing double and asked what he had put in her drink.  She had no recall of events between then and about 9.30 a.m. the following morning, when she awoke.  She was then wearing underpants only.  She found a note beside her bed, which said “I hope you’re feeling better, call me tomorrow, Johnno”.  There was evidence that Ms Trees had vomited in the vicinity of her bed.

Ms Trees called the appellant, who said she had been violently ill and that he had to clean her up and put her to bed “because I thought you were going to be alright”.  Ms Trees initially thought that she must have had food poisoning, although throughout the day she felt uneasy about what had occurred.  Medical evidence called at the trial indicated that Ms Trees had not had food poisoning but had swallowed a drug, probably Rohypnol.

Each of the witnesses Portelli, Reed and Cohen gave an account of a similar experience with the appellant to that described by Ms Trees.  The incident alleged by Cohen had occurred in October 1992 in Los Angeles, that alleged by Reed had occurred in December 1992 in South Africa, and that alleged by Portelli occurred 12 days after the incident alleged by Ms Trees, on 18 April 1994, in London.  When police searched the appellant’s property on 5 October 1994, they found a nude photograph of Ms Cohen dated 13 October 1992, which she said showed her in a room in the Los Angeles hotel in which she and the appellant had stayed, separately, at that time.  According to Ms Cohen, she also had fallen rapidly asleep after a hot chocolate drink  prepared by the appellant.

When police searched the appellant’s property on 5 October 1994, they also found photographs of Ms Reed bearing dates 20 and 24 December 1992.  She and the appellant had been in South Africa as members of a flight crew at that time, and she gave evidence of two incidents which coincided with the dates shown on the photographs.  On 20 December, their date of arrival, she and the appellant attended a party and she had no further recollection of the evening.  Another witness, Mr Wyper, gave evidence that the appellant had been acting as a waiter at the party, obtaining and supplying drinks, that Ms Reed had collapsed at the party and that the appellant had vocally insisted on taking her to her room.  When he returned 25-45 minutes later, he had lipstick on his face and on the front and back of his shirt, and said that he had had to carry her because she had collapsed.  The second incident occurred at a Christmas Eve party, after which the appellant invited himself to her room and made her a hot drink while he told her of problems with his girlfriend.  She described rapid drowsiness after the drink, and had no further memory until she awoke.

Before this Court, the appellant accepted that the evidence of the witnesses Portelli, Reed and Cohen (and Wyper) would have been admissible but for a “possibility of concoction”.  It was submitted that, because of that possibility, the evidence should have been excluded in accordance with the decision of the High Court of Australia in Hoch v. R. (1988) 165 C.L.R. 292.  At the beginning of the trial, counsel then appearing for the appellant had objected in the absence of the jury to the reception of such evidence.  He said that he would “briefly outline the essence” of his objections “to different aspects of the evidence which the Crown proposed to lead”, following which he suggested that the prosecutor “indicate to Your Honour what the Crown case is ...”.  So far as presently material, the objection was then stated in the following terms:

“In essence the Crown case is one that consists of a complainant, a Miss Trees, and a number of other witnesses who complain of an offence that the Crown would have to say comes within the similar fact rule.  The objection is that, firstly, the evidence isn’t sufficiently cogent to come within that rule ...”

After some other statements of no present relevance, the appellant’s counsel said to the trial judge:

“... that’s all there is at this stage.  Perhaps if my learned friend can indicate the basis on which he purports to want to lead this evidence ...”

The prosecutor then outlined evidence to be called from witnesses including Portelli, Reed, Cohen and Wyper, as well as evidence of the photographs found in the police search, and argued that the evidence was admissible.  Unfortunately, some of his summary of the evidence was not entirely accurate.  However, there is no suggestion that that inaccuracy misled the appellant’s counsel or caused him to conduct the trial differently in any respect; there had been a lengthy committal, at which the witnesses had been extensively cross-examined, and statements which had been taken by either Qantas investigators or police were also available.

After the prosecutor had finished outlining the material evidence and his submissions, the appellant’s counsel made his submissions which, as earlier foreshadowed, initially related to the cogency of the evidence.  (Curiously, it was, however, suggested that a further witness, another Qantas flight attendant, Ms Barro, who had made a similar complaint against the appellant, should also be called because “[s]he asked the doctor to test for some sort of drug and they couldn’t find anything.”)  Counsel then added:

“As far as the evidence of the other women is concerned, my submission is that, in essence, all it really amounts to is guesswork on their parts.  There’s no evidence that any of them were assaulted.  The highest the Crown could put it is that, with the exception of Cohen, the other two claim to have woken up without clothing where they recall having clothing on before they went to sleep, unless the Crown are purporting to say that the jury can draw the inference that the absence of clothing on two of them and when looked at then with Cohen, the nude photograph shows the clothing may have been removed and put back on and one can assume that he did it.

That, in my submission, goes too far and entails too much guesswork for the Crown to be able to rely upon the similar fact rule. ...

... it’s probably fair comment to say that the evidence is admissible only if there’s no other inference you can draw from it.  Now, the critical question here is, firstly, what inference can you draw from the evidence of the other three females?

At the very highest, one can say that you can draw an inference that the accused was last with them before they blacked out, that in the case of two of them, they woke up without clothing and, in the case of two of them but not the same two, photographs appear of them naked, not in any way being assaulted or indecently dealt with, just simply naked, and one has to really guess, in my submission, to jump that next step to say that, firstly, they were given a stupefying drug or given something, to be fair to the indictment, which caused them to not recall and that it was the accused who did these things.

Now, I would submit to your Honour, in essence, the argument for the defence is simply this: that there’s too much guesswork entailed there to come within the critical test outlined in Pfennig.^[1]  That is, that there has to be no other inference reasonably open on the facts to allow the evidence in.”

It was only at that stage that, for the first time, the appellant’s counsel raised an argument concerning the possibility of concoction.  His submission went on:

“... Now, the second point with respect to the Hoch point, my learned friend makes a distinction in the course of his argument between situations where witnesses may have got together before a complaint’s made and situations where they’ve gotten together after the initial complaint was made but before they got to court.

Now, my submission on that’s very simple.  It doesn’t much matter when they got together ... .  The reality of it is if there was a suggestion on the material that the evidence has been brought about - that is, the evidence which is about to be adduced before court and evidence in this case which has already been referred to in the committal proceedings - by some not so much collusion, but simply discussions between them then the evidence ought to be excluded.  In Hoch I think in the judgment of Mr Justice Brennan and Mr Justice Dawson Their Honours, ...

...

You’ve already been taken through this, but the essence of this; ‘The trial judge ... common to witnesses.’ [sic]   Well, the real chance here is that the circumstances which these women relate, not so much the fact that they did have a cup of cocoa or cup of whatever it is - hot chocolate - with the accused and then remember no more, but the circumstances which they relate as to how the accused got into their room or came to their room, what was said between them, what they can recall when they woke up, these are things which, in my submission, have to cause some degree of suspicion as a result of the joint counselling session.

If need be, I can go to evidence, but there’s certainly no dispute from the Crown that there was a joint counselling session, that it occurred before the committal, that it occurred probably before their police statements were taken, but after they had made complaints or statements, rather, to the security personnel at Qantas.  What I rely upon with respect to the Hoch argument is that there is a real possibility that the detail which they relate or will relate into evidence, the detail that’s contained in their police statements, is detail that could have probably or possibly - possibly’s the only thing I really need to establish  with your Honour - come about as a result of this joint counselling.

So that’s putting that argument really in summary form, but about as succinctly as I can. ...

...

Much of the attack at the committal was levelled at people who aren’t now being called.  I haven’t gone through in detail the evidence of Rhonda Lyons, but her statement is only a few pages long.  On the first page, though, I think it’s common ground between us that Cohen - the first counselling service with Trees, though, occurred I think on 13 September.  Her statement - that is, her police statement - was taken on 7 October.  Trees, Brimblecombe [Portelli], Nelson, Philpott, Barro, Whelan.

The point, though, being with respect to the charge before the court, the operative date is April of ‘94.  It would appear, though, I would submit to you quite clearly, that the evidence seems to be that Trees didn’t actually come forward with a complaint.  A perusal of the depositions shows that what happened is other women complained, Qantas then started making inquiries and, in effect, elicited a complaint - I don’t mean coerced, but certainly elicited a complaint - from Trees. ...

Cohen, as I understood, hadn’t made a complaint.  She was only discovered later in terms of identification from the photo.  I think it’s common ground that she may well have been counselled before she did actually make a complaint.  It may well be academic.  The critical point I really rely upon for the objection pursuant to Hoch is that before coming to Court they were all part of a joint discussion, some of them on a number of occasions, all of them on at least one occasion, where they ...

...

Well, I don’t think there’s any evidence to show what their statements to the security officer were.  The only statements I’ve got are the ones to the police.”

The following exchange then occurred:

“HIS HONOUR: Mr Chowdhury said that statements given before the police statements were consistent with those police statements.

MR NOLAN: Well, I’m assuming he can prove that.

MR CHOWDHURY: My learned friend should have copies of them because they were tendered as exhibits at the committal and perhaps if Your Honour wishes to consider the point I should hand up those statements.

HIS HONOUR: Yes, I suppose I’d have to be satisfied about that before I could consider this question of concoction.

MR NOLAN: I don’t have copies.  I realise they were tendered.  I was going to have a look at these later, but probably the better way to resolve is to ask Your Honour to have a quick look at them.

MR CHOWDHURY: They’re flagged, Your Honour, with the names of the particular persons.

HIS HONOUR: Yes, all right.

MR CHOWDHURY: The most important one is Trees.

HIS HONOUR: Sorry?

MR CHOWDHURY: Simone Trees and Reed.

MR NOLAN: But, to answer your question, I take the point.  I realise what’s being submitted.  I can’t put it any higher than to simply say to you that if there’s a chance and - I really rely on that small passage in Hoch - that they have all gotten together then Your Honour has to have some concern about it and the question really remains as to whether they should be excluded on that basis.

HIS HONOUR: I have to be satisfied there’s no real chance of a conspiracy or a concoction or an adoption of someone else’s story.”

The appellant’s counsel then moved on to a different topic, and added nothing concerning his argument relating to the possibility of concoction, before the trial judge gave his ruling.

In that ruling, after noticing the appellant’s objection, his Honour continued:

“Mr Nolan has argued that the proposed evidence, being circumstantial, cannot be said to be open to no reasonable view consistent with innocence and ought to be inadmissible on that ground.  He has, however, in fact, relied upon such similarity as is apparent in the evidence as grounds for rejection of the evidence on the basis that there is no real chance that there has been some innocent or deliberate concoction of evidence between the witnesses or that each has adopted part of another's claims.  He relies particularly on evidence that all four witnesses, including the complainant, took part in joint counselling sessions arranged by their employer in which they were encouraged to share their experiences with each other and to ventilate their feelings in company. The Crown concedes that such sessions were conducted and were conducted in that way but points out that each of the witnesses had given a statement either to the police or to Qantas security officers before taking part in any of those sessions.

I have perused the statements provided to Qantas security and to the police.  The statements that Cohen and Reed have made to the Qantas security officer are lacking in detail.  However, each of those witnesses gave a detailed statement to the police officers before they attended any counselling session.  Moreover none of the witnesses was familiar with any of the other three before the sessions were conducted.  I have been informed that Qantas employs about 5,000 international flight attendants and that the complainant had flown on one occasion only with the witness Brimblecombe and had not met either Cohen or Reed.

I am satisfied on the material put before me that there is no real chance that the evidence proposed to be led from the complainant and the witnesses Brimblecombe, Cohen and Reed is the product of a cause common to them.  I believe that they had demonstrated an independent knowledge of the matters to which they deposed before there was any occasion upon which or from which any concoction or confabulation, innocent or deliberate, could occur.

Obviously I have here applied the tests expostulated in Hoch and the Queen 1988, 165 Commonwealth Law Reports 292, particularly at page 304 by Justices Brennan and Dawson.  I am also satisfied that the evidence satisfies the tests restated in Pfennig and the Queen 1995, 982 [sic] Commonwealth Law Reports 461, particularly at page 483.”

In this Court, the appellant sought to relitigate the same dispute by reference to some only of the potentially relevant material; for example, a bundle of statements were handed up but there was no copy of the committal depositions.  There were references to various occasions when the witnesses gave statements and/or “were present in a group situation ‘where their experiences were related’ ”, accompanied by submissions which asserted alterations in the accounts given by some, at least, of the complainant and the witnesses Portelli, Reed and Cohen over the periods for which they were respectively involved in counselling and/or investigations by Qantas or the police.  While the appellant’s primary submission with respect to the “possibility of concoction” was related to “group sessions”, it was also submitted that that possibility existed or was increased because the evidence given at committal “went through Qantas like wildfire”.  Reference was also made to some of the women knowing and/or being friendly with one another.  The “group sessions” to which reference was made were identified as counselling sessions arranged by a Qantas psychologist at which the complainant and Ms Portelli were present on 13 September 1994, a further occasion when they were present with Ms Reed on 16 November 1994, and a further occasion when the complainant and all of the witnesses Portelli, Cohen and Reed were present on 17 January 1995.  Reference was also made to contact between the psychologist and Ms Portelli individually on 5 and 10 August 1994. 

Particular attention was paid in the appellant’s submissions to the witness Portelli, who it was said made a statement to Qantas ... on 5 August 1994, saw the Qantas psychologist that day and on 10 August, was party to a group counselling session with Trees on 13 September 1994, and made a statement to police on 7 October 1994.  It was asserted that her statement to police brought Portelli’s account almost directly into line with that of Trees.  Indeed, it was submitted that, at trial, Portelli further improved her evidence.

The appellant’s submission in relation to the witness Reed was that “a comparison should be made between the content of the police statement ... and her evidence”.  A similar submission was made with respect to the witness Cohen.

Doing the best we can to summarise the combination of the appellant’s written and oral submissions, his argument was that the process which was followed prior to trial raised the “possibility of concoction”, and that similarities in the evidence of the complainant and the witnesses Portelli, Reed and Cohen, which were crucial to the admissibility and probative effect of the evidence of those witnesses were increased in that process.  It is not, we think, unfair to state that the appellant’s argument lacked detail or any identifiable sequence of events, and was quite confusing.  Further, to the best of our understanding, differences in the respective accounts given by the complainant and the witnesses Portelli, Reed and Cohen at different times were of little consequence.

With the advantage of hindsight, it can be seen that the procedure adopted at the beginning of the trial was less than satisfactory.  It would have been much better had a voir dire been conducted, or at least the committal depositions referred to.  However, what occurred was obviously acceptable to the trial judge and to both counsel.  Much of what was then referred to in argument, and much of what was referred to in the appellant’s argument before this Court, did not become evidence before the jury.  In our opinion, in these circumstances, the appellant’s argument before this Court is based upon an erroneous premise.  Irrespective of what circumstances caused the judge to reject the appellant’s objections to the evidence of the witnesses Portelli, Reed and Cohen, the questions which are now significant are whether the material prosecution evidence which was led before the jury was wrongly admitted,^[2] and, if so, whether there has been a substantial miscarriage of justice.^[3]

The ruling made by the trial judge at the beginning of the trial which allowed the prosecution to call the witnesses Portelli, Reed, Cohen and Wyper and to tender the photographs did not in any way prevent or restrict the appellant’s cross-examination of such witnesses to raise a “possibility of concoction”.  Other considerations aside, if such a possibility genuinely continued to form any part of the appellant’s defence, such cross-examination was plainly material to the credibility and reliability of important prosecution witnesses.  If there had been cross-examination directed to the possibility that the evidence of the complainant or any of the material witnesses might have been influenced in the course of investigation or counselling or friendship and a “possibility of concoction” emerged, it would have been open to the appellant to apply again to have the evidence excluded, with appropriate directions to the jury or, more probably in the circumstances, for an order declaring a mis-trial.  That course of cross-examination was not followed; there was, for example, no substantial attempt made to establish by cross-examination that either the complainant or any of the material witnesses had at any time altered her evidence in any significant respect.  As we have earlier noted, this Court was not provided with a copy of the committal depositions, but it seems that there had then been lengthy cross-examination related to the issues which were omitted from cross-examination at the trial.  Because counsel who appeared for the appellant at his trial had a copy of the committal depositions, it must be assumed that he concluded that such cross-examination at the trial would not lead to evidence which supported a conclusion that there was a “possibility of concoction” of the material evidence.   In short, in our opinion, the “possibility of concoction” ceased to be part of the appellant’s case at trial.  Confirmation that that was so is to be found in the absence of any reference to the issue in the trial judge’s summing-up, which elicited no request for further directions or redirections

The course which the trial judge permitted prior to his initial ruling, which involved neither a voir dire nor reference to the committal depositions, combined with the absence of relevant cross-examination, permitted the appellant to present his appeal to this Court in a manner which tended to obscure its lack of substance.  However, after an opportunity to consider the appellant’s argument, there seems to us no possibility that the appellant’s convictions were unsafe or unsatisfactory, or that there has been a miscarriage of justice, and we would dismiss the appeal against conviction.

The trial judge’s sentencing remarks were as follows:

“John Travers Robertson, you have been found guilty of an extremely serious offence of administering a drug which rendered the complainant insensible to her surroundings for a lengthy period of time in a hotel room.  She could not, for example, have escaped a fire or have prevented being raped, robbed or even murdered if someone chose to take advantage of her condition.  She was deprived of her senses by the drug you gave her, disguised in hot chocolate so that you could gain some sort of voyeuristic thrill.

Your offence is aggravated, and indeed was rendered easier, by the fact that you were trusted by Miss Trees as a fellow steward and she intended only to be of assistance to you in respect of an alleged emotional problem of yours.  You took cynical advantage of her charity.  In my view the danger of her suffocating in her own vomit in the way described by Professor Bourke as a possible consequence was a real one in her case.  I have not been able to observe the slightest trace of any remorse in you.  It is quite clear that imprisonment is called for, despite your previous good background and antecedents.

Bearing in mind the circumstances of this matter and those of Cross and Brown I order that you be imprisoned for six years.  As to the indecent assault, I sentence you on the basis of a mere touching of her near naked body in the course of removing her clothing.  That is all the evidence permits me to do.  That is a relatively minor form of indecent assault, but the circumstances in which it occurred where the victim was helpless, unable to say yes or no, makes this a serious case.  I order in respect of that offence that you be imprisoned for two years.  I see no basis for making any recommendation for early parole.”

His Honour quite correctly considered the appellant’s offences were extremely serious, but it is difficult to resist a suspicion that he might have allowed himself to have regard to the appellant’s misconduct towards women other than the complainant.  Both the cases to which he referred^[4] were considerably worse than this, but, at the same time, involved somewhat heavier penalties.  Here, the appellant was aged 35 and had no prior criminal convictions, and although the principal offence was charged under s. 316 of the code, so that the maximum permissible penalty was imprisonment for life, the same conduct constituted an offence against sub-s. 218(1)(c) which provides for a maximum permissible penalty of imprisonment for seven years.  The prosecutor accepted that it was appropriate in setting a penalty to have regard to the lower maximum penalty provided by sub-s. 218(1)(c), and that imprisonment for six years appears excessive for a single, serious offence of which a person with no previous convictions could have been charged under the same provision.  Some further indication that the penalty is too high is perhaps to be found in a sentence of two years’ imprisonment for a simple offence of indecent assault constituted by “a mere touching of her near naked body in the course of removing her clothing”.

Little assistance as to what are appropriate sentences on this occasion is to be found in other cases to which reference was made in argument.  Not without some hesitation, we have concluded that, having regard to the appellant’s total criminality the sentence for the offence of administering a stupefying drug should be imprisonment for four years and the sentence for the offence of indecent assault should be imprisonment for one year.

In summary, the appeal against conviction should be dismissed but the application for leave to appeal against sentence granted, the appeal allowed, and the sentences imposed in the District Court set aside.  The appellant should be sentenced to concurrent terms of imprisonment of four years for the offence of administering a stupefying drug and one year for the offence of indecent assault.

REASONS FOR JUDGMENT - B W AMBROSE J

Judgment delivered:  4 April 1997

I have had the advantage of reading the reasons for judgment of the President and Davies JA, which deal fully with the facts and legal argument canvassed upon the appeal and application for leave to appeal against sentence. Upon the assumption that the test of admissibility of similar fact evidence in Hoch v. The Queen (1988) 165 CLR 292 - the absence of any real chance of concoction between witnesses giving similar fact evidence - might have arisen for consideration in the circumstances of this case, I agree that for the reasons given by my brothers the appeal against conviction fails.

However, I have some reservations as to whether upon the circumstances raised before the trial judge the test in Hoch relating to chance of concoction called for consideration.  Upon appeal argument was directed to whether evidence categorised as "similar fact" evidence was inadmissible because there was a chance it was concocted or "contaminated". I wish only to consider the application of the Hoch principle lest it be thought that the decision in this case is authority for the proposition that in the circumstances placed before the trial judge the test in Hoch called for consideration.

As it emerges clearly from the reasons for judgment of my brothers, the principal issue upon trial was whether the appellant who was a male flight attendant with an overseas airline administered a stupefying drug to a female flight attendant during a time when both were staying at a hotel in Cairns during a respite break taken by the aircraft crew after a long flight.

The complainant gave evidence that the appellant invited himself to her room bringing with him some hot chocolate so that they might drink it together.  She said that it tasted quite sweet and shortly after drinking it she lost consciousness; when she awoke she felt sick.  Expert evidence was to the effect that her sudden loss of consciousness and the symptoms of which she complained upon regaining consciousness were consistent with the administration of a stupefying drug and inconsistent with food poisoning, or a number of other possible explanations advanced on behalf of the appellant.

When she awoke the complainant found that most of the clothing she had been wearing when she lost consciousness had been removed and she was lying on a bed dressed only in panties.

The appellant denied to police officers that he had administered any drug to the complainant.  He admitted removing her clothes but said that she had become sick and had vomited over her clothing while he was in her room with her, and he had given her assistance and removed her stained clothing before leaving her to recover.

The Crown case was that the appellant had administered a stupefying drug to the complainant so that he could undress her and obtain sexual gratification by at least looking at her with most of her clothing (if not all) removed without her knowledge or consent.

The Crown called evidence from three other female flight attendants who, during a period of a couple of months, had been employed by the same airline as flight attendants on overseas flights.

Each of those three women gave evidence of an occasion (one of two occasions) when the appellant, being one of the flight attendants working on the same flight with her, had given her a drink prepared by him while the crew of the aircraft on which they were both working was having a respite break at a hotel in an overseas city in the course of that flight.

Each flight attendant gave evidence that after consuming the drink prepared and given to her by the appellant (one being given alcohol and the other two being given hot drinks) she lost consciousness.  Each said she awoke on a bed in the hotel room where she was staying; two of the attendants were depicted in photographic negatives found in the possession of the appellant in the course of police inquiries, lying naked on a bed in a hotel room; neither of those two women was previously aware that she had been so photographed. One of the women said that she had a hazy momentary recollection of the appellant touching her on her bare breasts while she was in a semi-conscious state, but upon regaining consciousness thought that she must have been dreaming.  All three gave evidence of regaining consciousness with symptoms consistent with those which the complainant said she suffered from when she regained consciousness. Expert evidence was that those symptoms were consistent with the prior administration of a stupefying drug.

Argument was addressed on the basis that the evidence of the three fight attendants which I have analysed only briefly was similar fact evidence of the sort considered in Perry v. The Queen (1982) 150 CLR 580, Sutton v. The Queen (1984) 152 CLR 528 and Hoch v. The Queen (supra).

In two of those cases the court considered whether direct evidence of the circumstances in which other sexual offences were committed was admissible on the particular charge under consideration; whether the circumstances in which the other sexual offences had been committed established more than a mere propensity to commit that sort of offence.

It was made clear in Hoch that in dealing with similar fact evidence of that kind in determining its admissibility the trial judge "must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused." - per Mason CJ, Wilson J and Gaudron J at 296. "Rational" in this context connotes "reasonable" (Pfennig v Reg (1995) 182 CLR 461 at p.482).

At 297 their Honours continued:

"... if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible."

Their Honours continued:

"In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged.  One complainant was ill disposed towards the applicant even before the events the subject of the counts in the indictment were said to take place.  There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts.  The evidence of the several complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged."

In this case, although the evidence of the three flight attendants is circumstantial, it is not the sort of circumstantial evidence considered in Hoch or Sutton which was direct evidence of the way in which another offence (of a sexual kind or with sexual overtones) had been committed by the accused to prove that the accused had in fact committed the offence charged.

In the present case none of the three flight attendants gave direct evidence that the appellant had in fact administered a stupefying drug to her.  Each gave evidence only of circumstances from which one might infer that he did so that he might achieve sexual gratification in one way or another without her knowledge or consent. In essence the Crown led circumstantial evidence of five occasions on which the appellant was involved with four different flight attendants to support the inference that on one of them (to which the charge related) he had administered a stupefying drug to one of those attendants.

Essentially the similar fact evidence was led to have the jury infer that by reason of the "strikingly similar" circumstances involving loss of consciousness by each of the three flight attendants when given a drink by the appellant in different parts of the world over a period of a couple of months, the appellant had on five occasions (including the occasion with respect to which he was charged) administered a drug to an unsuspecting female flight attendant for the purpose of his sexual gratification at her expense and without her consent. If the jury accepted the similar fact evidence they might discern such an underlying unity in the circumstances of the five occasions as to make coincidence an affront to commonsense and draw the inference for which the Crown contended.

In Sutton, Dawson J observed at 564:

"This is to say no more than that to be admissible the similar fact evidence must give rise to a clear inference tending to establish an element of the offence charged and must not be reasonably explicable upon some other basis.  Notwithstanding that the question is one of admissibility, it is nevertheless a matter of degree rather than deductive logic and it cannot be said that a clear inference arises unless 'general human experience would be contradicted, if the proved facts were unaccompanied by the facts sought to be proved'."

In Hoch at p. 296 it was observed, in the majority judgment, that the similar fact evidence in that case served two functions:

"Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants."

In my view, while the similar fact evidence in this case may have had some effect in confirming the veracity of direct evidence given by the complainant, it had the far more important function to which their Honours next referred:

"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."

At p.300, Brennan and Dawson JJ, having discussed R. v. Sims [1946] KB 531 and R. v. Kilbourne [1973] AC 729 said:

"The criterion of admissibility of similar fact evidence is that its probative force clearly transcends its merely prejudicial effect (Perry v. The Queen, Sutton v. The Queen) and if there is a real chance that the evidence is a concoction born of a conspiracy, the trial judge can hardly be satisfied that it possesses the probative force which alone warrants its admission."

There was no question of concoction born of conspiracy on the facts in Perry.

Although the relevant test of admissibility is expressed in slightly different language in each of the joint judgments, in my view clearly each posits the same test.

In context "possibility" and "chance" have the same meaning as do "rational view" and "reasonable view".  A "real" chance or possibility connotes a "reasonable" chance or possibility to be distinguished from a merely speculative or conjectural one.

The determination of the existence of a real chance or possibility requires an evaluation of all the known circumstances and not the making of a guess as to the existence of some of the factors relevant to the test when they do not appear upon the material available for consideration.

Hoch and Sutton were both cases where the question was whether direct evidence led to establish the commission by the appellant of other sexual offences in a "strikingly similar manner" to the offence under consideration, was admissible to prove its commission.

Both affirm the principle enunciated in R. v. Kilbourne [1973] AC 729 and reaffirmed in R. v. Boardman [1975] AC 421 which were cases dealing with evidence given by young boys well known to each other of acts of a sexual kind committed by an adult in a position to exercise influence over them.  Indeed Hoch was itself such a case.  In Boardman Lord Wilberforce explained the basis of the rule at p.444:

"This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).

I use the words ‘a cause common to the witnesses' to include not only (as in R v. Sims [1946] KB 531) the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility..."

His Lordship was careful to define "a cause common to the witnesses" to include "media publicity" and even "fashion".

I do not understand Hoch to lay down that in all cases where the Crown relies on similar facts as circumstantial evidence its admissibility will depend merely upon a perfunctory determination by the trial judge, without a careful assessment of the evidence relating to relationship, opportunity, motivation for concoction, subjection to influence, etc., that there is a chance or possibility that some or all of it has been concocted or "infected" so that its reliability never becomes a question for the jury.

In this case the similar fact evidence was designed to prove a system, technique or modus operandi of the appellant from which it might be inferred that he availed himself of the opportunity to do the act charged in the absence of any direct evidence to prove that act or indeed any similar act on his part. It could not be characterised as disposition evidence of the sort considered in Pfennig. It would only become evidence of disposition if the jury were in fact persuaded to infer the appellant's administration of a stupefying drug from his involvement in the circumstances of the five occasions when the four attendants lost consciousness.

The learned trial judge clearly directed the jury that they had to be satisfied that the complainant had been administered a stupefying drug by the appellant and a good deal of evidence apart from similar fact evidence was led to establish this as a fact. If from the evidence of the three flight attendants it might be inferred that the appellant employed a system or technique to administer a stupefying drug to unsuspecting female flight attendants with whom he was working in the course of overseas flights while accommodated at the same hotel on a respite break given to the whole crew, it would be admissible to prove the offence charged for the reasons given by Viscount Simon in Harris v. D.P.P (1952) AC 694 at 708-9 and Gibbs CJ in Perry v. Reg (1982) 150 CLR 580 at 586-7.

The effect of the evidence of which the appellant complains is that on four other occasions when he had the opportunity to administer a stupefying drug to a female flight attendant with whom he was working on an overseas flight, that attendant had in fact been stupefied and on three occasions (two of them involving the one flight attendant) photographs of the flight attendant concerned which had been taken without her knowledge, consistent with her then being in a stupefied condition, lying naked on a bed in the hotel room in which she had consumed a drink provided for her by the appellant were later found in his possession. That evidence of possession of photographs, while clearly evidence of disposition, went far beyond disposition; it went to motivation to administer a stupefying drug.

Critical to the decision in Hoch was the characterisation of similar fact evidence as circumstantial evidence which had probative value only if it bore no reasonable explanation other than the happening of the events in issue.  Consequently if there was a real chance of a joint concoction by witnesses giving it the similar fact evidence lacked a quality essential to its admissibility.  The view was expressed that the similar fact evidence there under consideration showed propensity to commit a crime and if it did not point strongly in some other way to the commission of the offence charged its probative value would be insufficient to outweigh or transcend the inevitable prejudice which would be accorded to an accused person by showing that he had been guilty of criminal activity other than that with which he was charged - presumably whether or not he had been convicted of that criminal activity.  It was held that similar fact evidence which does not on its face raise the improbability of the offence charged not being committed by the accused if the similar acts are proved to be true would lack a basic requirement for the admissibility of similar fact evidence. Views to this effect expressed by Rupert Cross were cited with apparent approval.  The decision in Hoch was delivered in 1988.

In DPP v. P (1991) 93 Cr App R 267 the House of Lords considered the principle upon which similar fact evidence is admissible.  Lord Mackay analysed the authorities commencing with Makin v. AG for NSW [1894] AC 57 at p. 273.  That was a case of course which did not involve corroboration in the technical sense in which it was later to be considered in Ananthanarayanan and Ryder in 1994. At p. 279 Lord Mackay said:

"From all that was said by the House in Boardman v. DPP I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime ...

Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

In DPP v. P no consideration was given to the effect of collusion between witnesses as to similar facts because it was expressly assumed that there was no collusion.  It was a case however where the issue was whether the evidence of one witness that she had been sexually abused was admissible as evidence of similar abuse accorded to another. The case involved consideration of whether the accused in that case ought to have been separately indicted. 

In March 1993 the Court of Appeal delivered two decisions touching on the matter dealt with in Hoch.  In R. v. Ananthanarayanan (1994) 98 Cr App R 1, which was a case involving the admissibility of similar fact evidence as corroboration, it was held that the admissibility of evidence being a matter of law it was the task of a trial judge to decide whether there was a real risk that potentially corroborative evidence was "contaminated" and that if he found such a risk he could not allow the jury to consider whether that evidence constituted corroboration.  The court considered the passages in Boardman and Kilbourne considered in Hoch.  Consideration was also given to DPP v. P (1991) 93 Cr App R 267.  In delivering the judgment of the court, Laws J said at pp. 10-11:

"The test for the trial judge to apply is that vouchsafed all through the cases: he must ask himself whether there is a real (as opposed to a merely speculative or fanciful) risk that the evidence is not independent.  The risk can arise not only when there may have been deliberate concoction, but, as has been said, from media publicity or because one witness may have been innocently influenced by his or her knowledge of another's account.  Where the judge finds that risk exists, he has no discretion to let the evidence go to the jury as corroboration."

It is clear that in that case the Court was not considering the test of admissibility of similar fact evidence but with its capacity to be capable of corroboration.

In R. v. Ryder (1994) 98 Cr App R 242, a differently constituted Court of Appeal, a day after the judgment was delivered in Ananthanarayanan came to similar conclusion.  In Ryder the Court also purported to apply what had been said in DPP v. P.  It also approved the observations in Cross on Evidence (7th ed) commenting upon the observations of Lord Wilberforce in Boardman that "the right course was for the judge to exclude the evidence" if there was a "possibility" as it appeared to him of collaboration. Reference was also made to the decision in Hoch.

The Court in Ryder agreed with that view and specifically with the observations in Hoch; it held that where there was a real possibility of collusion on the face of the papers, a trial judge should not allow similar fact evidence to be led. In other circumstances he might have to hold a voire dire to determine whether there was such a possibility.  If the evidence was admitted but at the end of the case he concluded that there was a real possibility of collusion he should tell the jury in the summing up not to use the similar fact evidence as corroboration.

The High Court again considered the admissibility of similar fact evidence in Pfennig.

In that case the similar fact evidence was not really in dispute (as it was in the present case).  The appellant had been convicted of an offence, the circumstances of which were held to be sufficiently probative as similar facts with features of similarity of modus operandi to be admissible upon the charge in question in spite of the significant prejudicial effect.

Mason CJ, Deane J and Dawson J considered both DPP v. P and Hoch.  At p.482 they observed:

"Where the propensity or similar fact evidence is in dispute it is still relevant to prove the commission of the acts charged.  The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred ...  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.  Here "rational" must be taken to mean "reasonable"."

After citing the observations in Hoch (1988) 165 CLR at 296 and other authorities to support this proposition, their Honours continued at pp.483-4:

"... 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. ...  Accordingly the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed."

Acceptance of the statement of principle stated above means that striking similarity underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence.  Though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.  What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand."

Their Honours had previously analysed the judgment in DPP v. P. It seems clear therefore that in Pfennig the view was taken that the decision in that case conformed with the decision in DPP v. P.

In neither DPP v. P nor Pfennig did the question of collusion or contamination affecting the reliability of witnesses giving similar fact evidence and therefore its admissibility require consideration.  However, it is clear that Pfennig, at least with respect to the principle which supported the admission of similar fact evidence, was in accord with DPP v. P.

Subsequent to the decisions in Ananthanarayanan and Ryder the very question of the effect of the possibility of collusion or contamination affecting the reliability and therefore admissibility of similar fact evidence came up for consideration in the House of Lords in R. v. H (A) (1995) 2 Cr App R 437.

It is clear from an examination of the judgments in that case that their Lordships after analysing what had been so often cited on the topic of collusion from Kilbourne and Boardman took the view that the statement of principle in DPP v. P - which had been affirmed if not indeed adopted in Pfennig - was inconsistent with the decisions in Ananthanarayanan and Ryder.

R. v. H(A) was also a case involving similar fact evidence where it was critically important that it be capable of corroboration; that it be accepted by the jury as both independent and credible.  At p.445 Lord Mackay observed:

"The mere fact that some characteristic is vitally important to the existence of corroboration does not appear to me to determine that it is a matter falling to the judge rather than the jury to determine."

At p.448 he said:

"In my view where the evidence is such that a jury could properly accept that it was not contaminated it is right for the judge to leave that evidence before the jury for them to assess its weight.  The judge is entitled to rule it out as providing a basis for corroboration only if no reasonable jury could accept it as reliable.  So long as a real risk of contamination is understood to mean such a risk that no reasonable jury could be sure that the evidence was not contaminated I regard the statement of Laws J as sound and in accordance with principle."

After considering the authorities and having arrived at the conclusion that what had been said in Kilbourne and Boardman when dealing with the risk of collusion or concoction referred to the admissibility of similar fact evidence as corroboration, The Lord Chancellor at p.451 said:

"... where there is an application to exclude evidence on the ground that it does not qualify as similar fact evidence and the submission raises a question of collusion (not only deliberate but including unconscious influence of one witness by another) the judge should approach the question of admissibility on the basis that the similar facts alleged are true and apply the test set by this House in DPP v. P accordingly.  It follows that generally collusion is not relevant at this stage. ... if evidence of similar facts has been admitted and circumstances are adduced in the course of the trial which indicate that no reasonable jury could accept the evidence as free from collusion the judge should direct that it cannot be relied upon as corroboration or indeed for any other purpose adverse to the defence."

At pp.460-461 Lord Mustill said:

"I have thus far concentrated on that aspect of the appellant's argument which starts with a rationalisation of similar fact evidence based on the unlikelihood of coincidence. This was essentially an intellectual rule-based approach.  The judge took the tests prescribed by law, and measured the evidence against them. If it passed the test it was admitted; if not, it was rejected. Support for this method can be found in various statements of principle by judges and commentators, almost up to the present day.  Indeed the concept may be detected in the judgment of Mason CJ, Wilson  and Gaudron JJ in Hoch v. R, much relied upon by the appellant. (I put the matter in this tentative way because the extended and thoughtful treatment of the entire subject contained in the subsequent judgments of the High Court in Pfennig v. R gives reason to suppose that this may not be a correct reading of what their Honours had said, and that the law in Australia may be quite close to that established for this country by DPP v. P.  The matter cannot be pursued here, since Pfennig was not decided until after the close of argument in the present case.) By all events, I understand your Lordships to have decided in DPP v. P that the former view was incorrect, being based on a misapprehension of the authorities such as Makin, Kilbourne and Boardman and that the function of the trial judge is not to decide as an intellectual process whether the evidence satisfies prescribed conditions, but to strike as a matter of individual judgment, in the light of his experience and common sense a balance between the probative value of the similar fact evidence and its potentially damaging effect.

It is, I believe, clear that this understanding of the similar fact rule dilutes the appellant's argument: for if the admissibility of the evidence no longer depends solely on the unacceptability of a coincidence the fact that the possibility of collusion introduces a third explanation, consistent neither with coincidence or guilt, cannot in itself destroy the justification for admitting the evidence.  This is not necessarily the end of the appeal since the same general approach may be advanced in relation to the exercise of weighing risk against probative value.  The former can be assessed on the papers alone, by assuming that the evidence is given in accordance with the witness statements.  But the latter cannot, once it is acknowledged that the probative value may be compromised by collusion, for the papers will usually say nothing about it.  An oral hearing to enable the judge to measure the risk is just as much needed (so the argument runs) under the current doctrine as it would have been under the old.

My Lords, I do not accept this argument in either theory or practice, for it ignores the fact that in a case such as the present, where not only the events alleged in the charge but also the events said to be similar facts are all in dispute, the potentially prejudicial effect of admitting the evidence is just as much a matter of speculation at the start of the trial as its potentially probative value. The balance between probative value and prejudice can be sensibly struck if the judge assumes that when the trial takes place the witness will come up to proof and will not be shaken in cross-examination.  But once the judge begins to ask himself how the witness will stand up during the trial to a cross-examination directed to the possibility of conspiracy (which is what an assessment of risk really entails) the validity of the exercise is impaired.  I cannot accept that the kind of half inquiry which appears to be proposed for the voire dire would yield a result proper to be weighed in the balance. ..

In these circumstances I am unable to accept that the rationale (in either version) of the reception of similar fact evidence in cases such as the present justifies either the proposition of law that the existence of a risk of "collusion" between complainants makes the evidence inadmissible or the inauguration of a practice whereby the possibility of risk is explored on a voire dire.  In my opinion it should continue in a case such as the present to be the practice, otherwise than in exceptional situations, that the trial judge rules upon the admissibility of the evidence of the witness who speaks to the fact alleged to be similar to the fact which forms the basis of the charge against the defendant by assuming that what is contained in his or her witness statement is unembroidered truth, leaving it to the jury to decide, in the light of whatever attack may be made on it in the course of the trial, what weight should be given to it."

His Lordship then noted that the similar fact evidence considered in Pfennig was not the same sort of similar fact evidence discussed in either Hoch or R v. H(A).

In Reg v. H(A) the House of Lords declined to follow Hoch to the extent that it held that "risk of contamination by collusion between complainants" rendered similar fact evidence inadmissible. I refer also to the judgments of Lord Lloyd at p.466 and Lord Nicholls at pp.467-8.

This Court is bound to follow Hoch and the procedural approach in England in cases where there may be a risk of "contamination" of witnesses called to give evidence of similar facts to establish an offence has no application. In Queensland the trial judge must still determine whether in a case involving similar fact evidence there is "a real chance" of concoction within the contemplation of Hoch. R. v. H(A), while identifying some obvious problems in satisfactorily determining this question without unduly impinging upon the function of the jury, did not of course find it necessary to consider possible solutions.

This Court has considered relevant aspects of Hoch on two occasions.  The first was Youngson - unreported decision delivered 19 August 1993.  The second was W - unreported decision delivered 20 August 1996.  Youngson considered the very point canvassed upon this appeal.  However the similar fact evidence there was of the kind considered in Hoch, Sutton, Boardman and Kilbourne and not of the kind in the present case.  In Youngson the similar fact evidence was related to indecent assaults committed upon complainants who received treatment at the appellant's clinic.  Two of the complainants were friends.  It was held, upon the facts, that evidence given by each upon the charge involving her was inadmissible as similar fact evidence upon the charge against the other.  No point had been taken at the trial "by oversight" and indeed the point seems to have been raised almost as an afterthought upon appeal. 

Pincus JA pointed out that the "precise phrasing" of the test stated in Hoch was important.  At p. 2 of his reasons he observed:

"If the evidence must be excluded when it is possible that the complainants agreed to concoct their various stories, the prosecution to pass that test would have to show that there was no communication between the complainants before they spoke to the police which could have included arrangements for the concoction. Another test is whether the quality of the evidence is "reasonably explicable" on the basis of concoction, and that appears to me to be different from the test of possibility.  The third test is whether there is a "real chance" or a "real danger" of concoction.  The first two tests are to be found in the majority judgment (296, 297) and the third test in the reasons of Brennan and Dawson JJ (299, 300, 302)."

His Honour then considered an unreported decision of the Victorian Court of Criminal Appeal in Schneiders (14 December 1992) which deduced from what was said in Hoch the principle that "because there was an opportunity for concoction and therefore a possibility of concoction the counts in relation to one complainant for a sexual offence ought to have been tried separately from the counts in relation to the other."

In concluding that the better view is that the "possibility" test is required by the Hoch judgment, I do not take his Honour to refer to other than a reasonable possibility as distinct from a speculative or conjectural one.

The judgment in Youngson was delivered before Ryder (1994), Ananthanarayanan (1994), Pfennig (1995) and R. v. H(A) (1995).

In W (20 August 1996) the Chief Justice considered the effect of Pfennig on the theoretical basis for the admission of similar fact evidence. He concluded that Pfennig should now be regarded as the "governing authority in all cases where issues arise concerning the admission of similar fact or propensity evidence".  He noted the adoption in Pfennig (at 479) of the principle enunciated by the Lord Chancellor in DPP v. P (at 460).

His Honour then referred to different categories of similar fact cases and categorised the case before him as one of "the class of cases where a single complainant has alleged sexual transgressions against her by a single offender on a number of separate occasions ... with the accused denying all instances whether charged or not".  His Honour encapsulated the rule in Pfennig as:

"changing the previous approach of identifying special categories justifying admission of similar facts - to a different broader principle which calls for a decision whether the probative force of the evidence in question outweighs the prejudice to the accused which the admission of it would involve."

Both Pincus JA and Byrne J, the other members of the Court, also dealt with the general basis for the admission of similar fact evidence stated in Pfennig (which reaffirmed what had been said in Hoch).

Neither Youngson nor W touch upon how in ruling upon the admissibility of similar fact evidence one determines whether there is a "possibility" of concoction or indeed of "contamination" by, perhaps, articles in the printed or electronic media. The Hoch test on its face applies not merely to similar fact evidence in offences involving sexual misconduct; presumably it applies to various other categories of offence where evidence of repetition of conduct is sought to be proved - such as charges relating to false pretences of various kinds. It is a common place for the media to publish material relating to criminal activity of this kind. It would seem to follow that similar fact evidence of the sort traditionally called, will now be inadmissible if witnesses other than the complainant in respect of whom the charge is brought may possibly have been "contaminated" because given "the opportunity" to read or watch that published material.  A voire dire in such a case would seem to be limited to the determination of the physical presence of the witness in the place where the publication was effected.

I refer to the previous decisions of this Court only to note that the basis for the admission of similar fact evidence referred to in Hoch whether arguably the ratio of that decision or not, has clearly been established in Pfennig.

The Lord Chancellor in R. v. H(A) while applying the general principle for the admissibility of similar fact evidence given in Hoch, declined to accept as a test of its admissibility the absence of possibility of concoction or contamination as required by Hoch.

The test relating to possibility of concoction or contamination is clearly stated in Hoch and in my view that makes it impossible, to take the quite different approach in dealing with this problem adopted in England subsequent to R. v. H(A). To the extent that the law and practice reflected in Ananthanarayanan and Ryder did conform substantially with the possibility of concoction test stated in Hoch, this Court may look to what was said in Ananthanarayanan and Ryder when considering how to determine whether similar fact evidence which satisfies the test in Pfennig is nevertheless inadmissible because there is a possibility of concoction or contamination.

In the majority judgment in Hoch at p. 297 it is observed that in some cases a judge who must rule upon admissibility of similar fact evidence might require an examination on voire dire to ascertain:

"the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction."

To my mind this language implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder.  Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it.  To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence.  Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts in Hoch and Youngson will perhaps be a compelling indication of the determination required.

The facts and circumstances in the present case however are quite different from those considered in the cases to which I have referred and to my mind there is nothing on the papers or the material that could have been placed before the trial judge that would have compelled rejection of the similar fact evidence on the basis that there was a real chance of concoction or contamination sufficient to provide a reasonable explanation of the similar fact evidence.

The author of Archbold (1995 ed) vol. 1 pp. 1574-1577 comments that the decision of the Court of Appeal in R. v. H(A) (1994) 99 Cr App R 178 "cast doubt upon" the test of absence of a real chance of concoction for admissibility of similar fact evidence and supports the practice affirmed in Ananthanarayanan and Ryder. In the light of the decision of the House of Lords in R. v. H(A) affirming the decision of the Court of Appeal, the observations in Archbold have been overtaken except to the extent that they remain helpful as to the preferred practice in England before those cases were overruled.

In R. v. H(A), when declining to follow Hoch the House of Lords applied DPP v. P (1991) 93 Cr App R 267 which held that similar fact evidence is admissible if the similarity is sufficiently strong or there is other sufficient relationship between the events described and the abuse charged to have it strongly support the truth of the charge notwithstanding its prejudicial effect.  Lord Mustill at p.461 raised the question whether the decision in Pfennig v. R "gives reason to suppose" that the law in Australia might be quite close to that established in England by DPP v. P.

Lord Lloyd agreed with Lord Mackay and at p. 466 discussing the tests of "serious risk" or "real chance" used in Bedford (1991) 93 Cr App R 113 and Ryder (1994) 98 Cr App R 242 observed:

"Ultimately it is a question of policy where the line is to be drawn: see Phipson on Evidence (14th ed), p. 379. The House should, I think, be slow to differ from the Court of Appeal in formulating a practical test for admitting or excluding evidence.  But there is a danger in choosing a particular formula to encapsulate policy since it tends to become set in stone.  This is a danger the House exposed in DPP v. P when it released the law from the bondage of 'striking similarity' useful though that expression must have been when it was first coined.  Rather than choose a particular formulation, it therefore seems better to say that where a risk of collusion or contamination is apparent on the face of the documents, it will always be an element and exceptionally a decisive element, in deciding whether the probative force of the similar fact evidence is sufficiently strong to justify admitting the evidence, notwithstanding its prejudicial effect."

The approach in R. v. H(A) is of no assistance to this Court on the present state of authorities and particularly the binding authority of Hoch to the effect that any "real chance" or "reasonable possibility" that there has been a concoction or "contamination" of similar fact evidence renders that evidence inadmissible.

Looking at the matter broadly, and having regard to the approach advocated in Archbold prior to the decision of the House of Lords in R. v. H(A) in May 1995, it is my view that in determining whether there is a "real chance" of concoction upon either the papers or voire dire application the following are critical matters for consideration:

1.The nature of the relationship, if any, between witnesses to be called to give "similar fact" evidence and the complainant.

2.What, if any, motivation the complainant and those witnesses may have to conspire to concoct their "similar fact" evidence?

3.The nature and content of the first complaint of similar facts by each of the complainant and the witnesses.

4.The opportunity for communication or contact between each of the complainant and those witnesses prior to the first complaint of similar facts by each to a person not associated with any of them.

5.The occasion, nature and extent of any possible "contamination".

My brothers have set out in detail the matters raised on behalf of the appellant at the trial concerning these points. No real particulars of any critical matters were given to support the proposition that there was a "real chance" of concoction or other contamination of the similar fact evidence which would render it inadmissible. There was a vast amount of material available to the appellant and indeed the Crown prosecutor made available copies of statements taken from the various witnesses prior to the opportunity arising (on the material at least) for their similar fact evidence to become contaminated by knowledge of other assertions or reports concerning the appellant.

The relationship between the witnesses as to similar facts was extremely distant and not of the sort considered in Hoch, Sutton, Kilbourne, Boardman or Youngson.

No motivation for concoction was suggested on the material.

In my view on the material opened by the Crown and upon the evidence led upon trial, there was nothing objectively even to suggest a "real" as distinct from a merely speculative or conjectural possibility of concoction or contamination of the evidence given by the similar fact witnesses.

Having regard to the material available to the appellant before the trial commenced it seems far from clear that even had he sought to have the question of admissibility of the similar fact evidence based on chance of concoction or contamination canvassed on voire dire the trial judge would have been obliged to embark upon such a preliminary hearing in the absence of any facts raised which might suggest there was such a chance; the matter had been investigated upon the committal proceedings and material relevant to opportunity and motive was available for argument on behalf of the appellant if he wished to use it.  His objection however was confined substantially to the ground that the similar fact evidence did not satisfy the requirement of Pfennig.  In my judgment a real chance of concoction or contamination sufficient to render inadmissible similar fact evidence which would otherwise be admissible could not be established merely by the appellant "not admitting" that the evidence in question had not been concocted or contaminated or by his counsel merely asserting such a possibility. If, prima facie, similar fact evidence is admissible under Pfennig, the "real possibility" or "real chance" that that evidence has been concocted (or otherwise contaminated) arising from relationship motivation and opportunity to concoct or to be influenced, must appear, if not on the papers before the trial judge, at least by admission of the Crown or upon facts established on voire dire; such facts must be opened or at least asserted before embarkation upon a voire dire.

Although no longer to be followed in England, in the light of R. v. H(A) (1995), the practice approved in Ryder (1994) 98 Cr App R 242 and analysed in Archbold (1995) at pp. 1574-5, seems consistent with this approach.

In my view the nature of the similar fact evidence in this case differs significantly from prejudicial evidence of the commission of offences similar to that considered in Hoch, Sutton, Kilbourne,  Boardman and the other cases involving sexual activity referred to in R. v H(A).  While undoubtedly there are sexual overtones to the similar fact evidence led in this case that evidence is not, of itself, the sort considered in those cases.

Having regard to the nature of the similar fact evidence in this case and the very distant relationship (if any) between the witnesses called to give that evidence there is less reason to suspect or even be tempted to speculate on the possibility or chance of concoction or contamination of that evidence than might perhaps be the case where direct similar fact evidence of sexual activity by witnesses comprising a relatively small and closely related class is raised for consideration; particularly if one or more of those similar fact witnesses has a motive to concoct false evidence or has been exposed to the influence of versions given by other witnesses of similar activity.

In this case there was no material upon which the trial judge could have concluded that there was a real possibility or real chance that the similar fact evidence was concocted or contaminated.

I agree that the appeal against conviction ought be dismissed.

I agree for the reasons given by brothers that the sentence for the offences of which the appellant was convicted was manifestly excessive. It is clear from what this Court held in Dales (1995) 80 ACR 50 that the appellant's behaviour with respect to the other three attendants could not be taken into account in imposing sentence for the offences of which he was convicted; the sentence imposed could only arguably be supported if it could have been.

I agree that leave to appeal against sentence ought be granted, the appeal allowed, the sentences set aside and the sentences proposed by my brothers substituted for them.