SUPREME COURT OF QUEENSLAND

[1]  MCMURDO P:  The appeal should be dismissed for the reasons given by Keane JA.

[2]  KEANE JA:  On 1 November 2006, the appellant was convicted after a trial by a jury in the District Court of six counts of indecent dealing with a boy under 16 years of age and one count of indecent dealing with a boy under 14 years of age.  He was sentenced to concurrent terms of imprisonment totalling four years.

[3] The appellant contends that the convictions should be set aside on the following ground:

"The trial judge, having admitted evidence as similar fact evidence, failed to direct the jury that they could not use the evidence of the complaints in combination unless they were satisfied that there was no real risk that the evidence was untrue by reason of concoction."

The course of proceedings

[4] The charges of indecent dealing related to incidents which were alleged to have occurred in the period between 10 August 1974 and 29 September 1978.  There were three complainants – M, S and O – each of whom gave evidence.  The Crown also called MG who gave evidence that the appellant had dealt indecently with him in about 1978.   

[5] In the mid-1970s, each of the complainants and MG had been friends, and members of a cadet unit and a martial arts group.  In each of these groups, the appellant was a senior figure in the period between 1974 and 1978.  The evidence of each of the complainants and MG as to indecent acts committed by the appellant upon each of them was treated, without objection, as admissible evidence in relation to each of the charges. 

[6] It is apparent from the evidence at trial that there was a committal hearing at which at least some of the witnesses for the Crown were cross-examined.  It is not, however, apparent when this hearing occurred.  It does not appear from the record when the appellant was first charged with the offences in question, but the indictment was presented against the appellant on 28 February 2005.  The trial commenced on 23 October 2006. 

[7] No application was made on behalf of the appellant for separate trials in relation to each complaint.  Such an application might have been made pursuant to s 597A(1) of the Criminal Code 1899 (Qld).

[8] The appellant gave evidence at trial denying the allegations of misconduct on his part. 

[9] It is not necessary, for the purposes of the appellant's argument in this Court, to set out the details of the evidence of the complainants and MG or that of the appellant.  The focus of the appellant's argument was on the directions given to the jury by the learned trial judge.  In the course of the learned trial judge's directions to the jury, his Honour summarised the evidence of the complainants and MG, and then said:

"I just want to confirm what you should make of that particular evidence. First of all you would have to accept the evidence of the witnesses as to what happened on these other occasions.  If you don’t accept that evidence you should disregard it entirely. If you accept that evidence it can be of no use to you unless you’re completely satisfied that there is so strong a pattern that the conduct on each occasion is so strikingly similar and as a matter of commonsense and standing back looking objectively at it the only reasonable inference is that the same sequence of events occurred on this occasion which you’re dealing with on the indictment.

     If you are not satisfied with that you should put the evidence out of your mind. It would be entirely irrelevant to this case and it would be wrong to use it against the defendant.  You certainly must not proceed on the basis that if you thought he’d committed other offences he was generally the sort of person you might think would commit this offence. You must be satisfied about that. A striking similarity looking at it objectively and that the only reasonable inferences [sic] is that the same sequence of events occurred in relation to the count you’re considering on the indictment.

     Being more specific if you accept the evidence of either of the complainants, [S] and [O], or [MG] who’s not a complainant, beyond reasonable doubt as to what happened to them on the occasions they allege and if you are satisfied that the conduct, so strikingly similar that using commonsense by standing back and looking at it objectively the only reasonable inference is that the same sequence of events occurred on the occasions that the complainant [M] was talking about. If you are so satisfied of that then you might proceed on the basis that there is no other reasonable inference other than the defendant committed the offences on the complainant [M].

     Conversely, looking at it another way and I’ll give you another example of the various combinations. If you find that the offences in the case of [S] that the things said by [M] and [O] and [MG] about what happened to them are so strikingly similar looking at it objectively that the only reasonable inference is that he committed the offences on [S] then you may approach the evidence of [S] in that manner and similarly for [O] if there’s any similar fact evidence.

     Remember you must accept the evidence of the witnesses beyond a reasonable doubt before such evidence can be used as similar facts and therefore to allow you to draw the inference that the defendant committed the offence or offences on the other on either one or each of the complainants."

[10]  Counsel for the appellant at trial did not object to these directions to the jury or seek any redirection in relation to them. 

The argument on appeal

[11]  Section 132A of the Evidence Act 1977 (Qld) provides:

"In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any."

[12]  The appellant's argument is that the learned trial judge, in his directions to the jury, erred in failing to give the jury a particular warning against the danger that the evidence of the complainants and MG had been concocted by them.  It was argued on the appellant's behalf that, although s 132A of the Evidence Act had removed the objection to the admissibility of such evidence based on the risk of concoction, ie the objection which had been upheld by the decision of the High Court in Hoch v The Queen,[1] the need for a warning about that risk remained in all cases where similar fact evidence was adduced by the Crown from several witnesses.  This argument shaded into the further argument that there was, in this case, a perceptible risk of concoction, having regard to the common "origin" of the complaints and the delay attending the making of complaints against the appellant.  It was this risk which gave rise to the need for the warning in this case.  It may be noted that it was not suggested by either party to the appeal that the effect of the provision in s 132A of the Evidence Act that "the weight of that evidence", ie evidence which "may be the result of collusion or suggestion", removes all occasion for a judicial warning to the jury of the kind in question.

[13]  Senior Counsel for the appellant submitted that it was generally incumbent on a trial judge, as a necessary part of the direction to the jury as to the use which might lawfully be made of similar fact evidence from several witnesses, to warn the jury that concoction afforded a possible explanation for the similar accounts given by those witnesses.  Such a direction was necessary to ensure that this possible explanation is considered by the jury in assessing the probative weight to be accorded to that evidence.  Where several witnesses give evidence of similar acts of misconduct, concoction is always a possible explanation for the similar fact evidence so that the warning must always be given in such a case. 

[14]  In support of this submission, the appellant relied upon the following observations of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen:

"Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims ([1946] KB 531)) or as corroboration (Reg. v Kilbourne ([1973] AC 729 at pp 749, 751, 758)) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman ([1975] AC at p 452), per Lord Hailsham and Lord Cross ([1975] AC at p 458); Sutton ((1984) 152 CLR at pp 556–557), per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman ([1975] AC at p 444):

'This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.'

     Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims ([1946] KB at p 540); Boardman ([1975] AC at p 439, 459–460); see also Rupert Cross, 'R v Sims in England and the Commonwealth', Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.

     This appears not to have been appreciated in Johannsen v The Queen ((1977) 65 Cr App R 101) and Reg. v. Scarrott ([1978] QB 1016), but it is implicit in the observation of Lord Wilberforce in Boardman ([1975] AC at p 444) that 'something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed'. His Lordship added:

'This is well illustrated by Reg. v Kilbourne where the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out.' (Original emphasis in italics)

     His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right. Similar fact evidence is circumstantial evidence, as is implicit in what was said by Dixon J in Martin ((1936) 55 CLR at p 375) and as pointed out by Dawson J in Sutton ((1984) 152 CLR at pp 563-564). In Sutton ((1984) 152 CLR at p 564) Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.

     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."[2] (emphasis added)

[15]  Senior Counsel for the appellant acknowledged that these observations were made in relation to the admissibility of similar fact evidence, but argued that the rationale for the common law exclusionary rule implies that a warning to the jury as to the limits upon the probative value of such evidence is necessary where that evidence is admissible. 

[16]  This first way of putting the argument for the appellant seeks to treat the possibility of concoction as a rational explanation for similar fact evidence which is inevitably present where several witnesses give evidence of similar acts of misconduct.  For that reason, so it is said, it must always be the subject of a warning to the jury.  This approach draws no support from the observations of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen.  Their Honours expressly recognised that whether the possibility of concoction affords a rational explanation for similar accounts of wrongdoing by an accused depends on the factual circumstances of each case.  It is apparent from the passage set out above that their Honours are concerned with concoction as a practical possibility in the circumstances of the case, not as a theoretical possibility or logical postulate.

[17]  In Hoch v The Queen, Brennan and Dawson JJ also discussed the duty of a trial judge to rule upon the admissibility of similar fact evidence in terms which confirm that the possibility of concoction is not inevitably and always "the other side of the coin" of the tendency of similar fact evidence to establish the guilt of the accused by reason of the probability that multiple accounts of the same acts of misconduct by the accused are true.  Their Honours said:

"Just as the duty to determine voluntariness arises when the circumstances of the case raise it as a real question (MacPherson ((1981) 147 CLR at pp 523, 534) a duty to determine whether similar fact evidence is to be accounted for by a cause common to the witnesses arises when the circumstances of the case raise it as a real question. Here, his Honour identified circumstances of association between the complainants which plainly raised the question whether there was a real chance that they had put their heads together to concoct their allegations. That is not to say that a trial judge should lightly conclude that there is a 'real chance' of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire. The trial judge was not asked by counsel to consider the question and he did not do so. Sometimes a judge may properly infer from counsel's failure to raise the question of common cause that it is unnecessary to do so (cf. MacPherson ((1981) 147 CLR at p 543) but, in the present case, when counsel stated that he had been briefed late and his Honour had had to adjourn for an hour to allow counsel to prepare an argument, that inference could not be safely drawn. Rather it seems that attention was fastened on the question of sufficient similarity and the question of conspiracy was either overlooked or treated as a question for the jury alone."[3] (emphasis added)

[18]  The appellant's first argument is quite inconsistent with the reasons of Brennan and Dawson JJ.  It is also inconsistent with the reasons of Mason CJ, Wilson and Gaudron JJ, even though their Honours differed from Brennan and Dawson JJ as to whether it was the mere "possibility" or only a "real chance" of concoction which was to be considered.  This argument for the appellant is not supported by any other authority.  It should be rejected.  It is not to be assumed by a judge that, for example, complainants from different cities who give evidence of sexual assault involving a strikingly similar modus operandi, may possibly have concocted their evidence. 

[19]  The second way in which the appellant's argument was put was to the effect that, in this case, the jury should have been warned that the similar fact evidence adduced in this case had probative value only if "there is no possibility of concoction", and that there was a possibility of concoction in this case because of the common origin of the complaints and the delay in making those complaints.  As to this second point, under pressure of argument, Senior Counsel for the appellant, recognising that the delay which occurred in bringing the complaints in this case was more of a hindrance than a help to his argument, focussed upon the "common origin" of the complaints.  The appellant argued that the possibility of concoction by the complainants and MG arose because of their association together and with the appellant in the cadet unit and the martial arts group.  It was submitted that the learned trial judge erred in failing to appreciate that, in the circumstances of this case, there was a risk of concoction against which the jury should have been given a specific warning.  Once again, it must be said that this way of putting the argument for the appellant draws no support from either the decision or the dicta in Hoch v The Queen.   

[20]  As Demack J observed in R v Hooper,[4] in Hoch v The Queen there was evidence which raised the risk of concoction.  In Hoch v The Queen,[5] the accused was charged with sexual offences against three boys:  two were brothers and the third was a friend of one of the brothers.  They lived together in a boys' home.  There was evidence that the three of them bore ill-will towards the accused, who was the recreation officer in the boys' home.  Evidence of this kind of association is apt to give rise to a real possibility of concoction.  It is the existence of such a possibility on the evidence in a particular case which would usually give rise to the need for a warning of the kind referred to in the Benchbook.[6]

[21]   The fundamental obligation of a judge presiding at a criminal trial is "to ensure that the trial is conducted fairly and in accordance with the law".[7]  It is no part of the duty of a trial judge to warn the jury against the presence of a chimera in the courtroom, or gratuitously to disparage complainants in cases of sexual offences.[8]  While it is true that the jury should be warned of the risk of concoction if it is necessary to do so to ensure a fair trial of the charges against an accused person, it is not necessary for the judge to give such a warning to the jury in every case where similar fact evidence is relied upon by the Crown.  The authoritative statements in the passage from Hoch v The Queen on which the appellant seeks to rely make it clear that the risk of concoction is not invariably a "problem" with similar fact evidence.  Whether such a problem exists is a matter for the experience and common sense of the trial judge.  The real question is whether the learned primary judge erred in failing to perceive that, as a matter of common sense and experience, there was such a problem in the circumstances of this case.

[22]  In this case, there was no suggestion of continuing, or resumed, connection between the complainants and MG over the many years which had passed since their association with the appellant which might have given rise to a circumstantial possibility of collusion in relation to the bringing of the charges against the appellant.  Nor was there any suggestion of a shared, and ongoing, antipathy between the complainants and MG towards the appellant at any time. 

[23]  The great lapse of time between the incidents the subject of the complaints against the appellant meant that there was no evidence at all that, when the complaints were made against the appellant, the complainants and MG were still associated "as a group" (to use the expression in the authorities cited in the passage from the reasons for judgment of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen referred to in paragraph [14] of these reasons).  These authorities speak of a possibility of collaboration which is apparent to a trial judge because the complainants are known to be associated in a group at the time, or shortly before, they are to give their testimony against the accused.

[24]  In summary, there was no suggestion of any current connection between the complainants and MG which should, "when judged by experience and common sense", have given rise to an apprehension of concoction as a possible explanation for the evidence of similar conduct by the appellant. 

[25]  It may be accepted that the conduct of the trial on behalf of the accused cannot be determinative of the adequacy of a trial judge's directions to the jury.  Nevertheless, my conclusion that his Honour did not err in failing to perceive that the evidence raised the possibility of concoction is confirmed by the conduct of the trial.  The possibility of concoction had not been raised with the complainants by the appellant at trial.  The appellant had the opportunity, both at committal and at trial, to explore this possibility with the complainants and MG.  It was not suggested to any of the complainants or MG during the course of their cross-examination that they had "put their heads together" to concoct their allegations against the appellant.  Further, as I have observed, defence counsel at trial did not seek such a warning from the learned trial judge or suggest that there was a possibility of concoction.  

[26]  This is, in my respectful opinion, sufficient to dispose of the appellant's arguments on the appeal.  One may make the further observation, however, that none of the complainants had been given an opportunity to respond to the suggestion of serious misconduct on their part necessarily involved in the direction which the appellant says should have been given.  The course, which on appeal is said to have been essential at trial, would have been distinctly unfair to the complainants and MG.  The entitlement of an accused person is to a fair trial.  If that entitlement may, on occasion, extend to entitling him or her to have the trial conducted unfairly to the complainant, this case did not afford such an occasion. 

[27]  There may be questions as to the extent to which "the essentially accusatory character of the criminal trial in this country" implies that a fair trial does not require some minimal fairness to the complainant;[9] but it is not necessary to attempt to resolve these questions in this case.  The complainants and MG were connected only by reason of the circumstances of their association with the appellant many years before the charges in question were brought against the appellant.  As I have said, in the absence of some suggestion in the circumstances of the case of the possibility that the complainants and MG maintained, or renewed their connection to each other and had a motive to pursue a false complaint against the appellant, there was no reason why the trial judge should have perceived a risk of concoction.  

[28]  Quite apart from considerations of fairness, the absence of any reason for the trial judge to perceive, as a matter of "experience and common sense", the possibility that the complainants had concocted the case against the appellant meant that there was no need for the trial judge to warn the jury against that danger.  It was sufficient for his Honour to warn the jury that they must be satisfied of the truth of each account before acting upon it.  His Honour gave the jury a clear warning in that regard.  

Conclusion and order

[29]  In my respectful opinion, a direction of the kind suggested by the appellant was not necessary to ensure a fair trial of the charges against the appellant. 

[30]  The appeal should be dismissed.

[31]  HOLMES JA: I agree with Keane JA, for the reasons he has given, that the appeal should be dismissed.