R v BBG[2007] QCA 275

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:The appellant pleaded not guilty on 5 February 2007 to four counts contained in one indictment.  Count 1 charged indecent treatment of a child under 16 between 1 January and 1 March 2002; count 2 indecent treatment of a child under 16 under care between 1 May 2002 and 31 July 2002; count 3 indecent treatment of a child under 16 under care between 1 November 2004 and 30 November 2004 and count 4 indecent treatment of a child under 16 under care between 1 November 2004 and 30 November 2004.  Counts 1 and 2 concerned the complainant J, who was born in June 1989 and was 12 when count 1 was said to have occurred and 12 or 13 when count 2 occurred.  Counts 3 and 4 concerned the complainant A, who was born in January 1990 and was 14 at the relevant time.  The appellant was convicted after a three day jury trial.  Because he had served a considerable period of pre-sentence custody he was sentenced to nine months fully suspended imprisonment with an operational period of two years. The appellant appeals against his conviction contending that he was deprived of a fair trial by the wrongful joinder of the two sets of charges involving two separate complainants.

The applicable law

[2] The Criminal Code 1899 (Qld), s 567 relevantly provides:

"Joinder of charges

567 (1)  Except as otherwise expressly provided, an indictment must charge one offence only and not two or more offences.

(2)  Charges for more than one indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

…"

[3]  Criminal Code, s 597A relevantly provides:

"Separate trials where 2 or more charges against the same person

597A  (1)  Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person's defence by reason of the person's being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more than one offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.

(1AA)  In considering potential prejudice, embarrassment or other reason for ordering separate trials under this provision in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion."

[4] The prosecution contention was and remains that the charges against the appellant were properly joined under s 567 as "a series of offences of … similar character" and inferentially that the interests of justice did not require an order for separate trials under s 597A.  That contention was upheld by the judge who heard the pre-trial application to sever counts 1 and 2 concerning the complainant J from counts 3 and 4 concerning the complainant A.  No further application under s 597A was made for an order for separate trials on any count at the appellant's trial. 

[5] The issue of joinder of charges because of their similar character has most recently been considered by the High Court in Phillips v The Queen.[1]  In a joint judgment the court (constituted by Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) noted that the test for the admissibility of similar fact evidence has long been that stated in Pfennig v The Queen:[2] similar fact evidence is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of it consistent with the innocence of the accused.[3]  In overruling this Court's approach in R v O'Keefe[4] their Honours adverted to the following passage in Pfennig:[5]

"[S]triking 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."

[6] Despite that passage, the court emphasised:

"… [A] fundamental aspect of the requirements for admissibility: [is] the need for similar fact evidence to possess some particular probative quality.  The 'admission of similar fact evidence … is exceptional and requires a strong degree of probative force'.  It must have a 'really material bearing on the issues to be decided'.  It is only admissible where its probative force 'clearly transcends its merely prejudicial effect'.  '[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind'.  The criterion of admissibility for similar fact evidence is 'the strength of its probative force'.  It is necessary to find a 'sufficient nexus' between the primary evidence on a particular charge and the similar fact evidence.  The probative force must be 'sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused'.  Admissible similar fact evidence must have 'some specific connection with or relation to the issues for decision in the subject case'.  As explained in Pfennig v The Queen: '[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.' "

(footnotes omitted)[6]

[7] Later, the court added:

"What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations. First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence."  (footnotes omitted)[7]

The evidence

[8] The determination of this appeal next requires a review of the facts relied on by the prosecution to justify the joinder of the counts. 

[9] The complainant J's evidence (relevant to counts 1 and 2) was included in his interview with police officers recorded on 16 December 2004 when he was 15 years old.  The appellant, who was born in 1953,  was a friend of J's father.  J first met him at J's home.  The appellant invited J to stay at his property.  J accepted his initial invitation in early 2002 when he was in Grade 8.  That night was uneventful.  In the morning the appellant had $50 in his closed hand.  He said that if J could open his hand J could have the money.  The appellant would often visit J's father and they would have a couple of rums.  One night, he asked J to come around to his house.  When J visited the appellant he often bought J breakfast from McDonalds, clothes, alcohol and cigarettes "and all that" so J kept going back.  His mates also began to visit the appellant's place.  The appellant lived with BD, who was the appellant's nephew and J's friend.  The appellant always had "kids out there".  J and his friends often chased the appellant's two goats on the property and frequently asked the appellant to buy alcohol.  He bought the youths alcohol but not always immediately on request.

[10]  About a week after J first met the appellant, the appellant rolled up his sleeve, showed J his tattoo and then put his hand into J's crotch, squeezing his genitalia and saying, "Woo-hoo."  This episode was relied on by the prosecution as constituting count 1.  The appellant would often put his leg in between the boys' crotch and say, " 'Row, row, row your boat …' and stuff like that."  The appellant did this sort of thing "to everyone" and always made out that he was joking.  He did it to J every time or every other time J saw him. 

[11]  In many ways the appellant acted like a father to him.  They would sometimes hurt each other through horseplay.  The appellant told J he loved him and "all this stuff. … like a father would or something".  He would buy J takeaway food and give him money for tuckshop; he spent $280 on him at the local show. 

[12]  One night when J was in Grade 8 in 2002 about five months after he met the appellant, J was asleep on a couch at the appellant's home.  He woke up to feel breathing in his ear.  His pants were down to his knees and the appellant was sitting there playing with J's penis.  J turned around, looked at him, nudged him with his elbow and the appellant let go.  J put his pants on and "was going off" at the appellant.  J lay down on the couch but did not sleep for hours.  A young adult, Paul, was then living in the appellant's house.  J knew that it was the appellant who had done these things to him because he turned on the light, saw the appellant and "went off at him".  The appellant was masturbating J's penis "pulling it hard".  The appellant said that he had had too many drinks.  J told him that was no excuse.  The appellant went back to sleep straight away after asking if J wanted to be driven home.  J said he did not want his father to know but added that if the appellant did anything like that again he would "chop [his] balls off".   This episode was relied on by the prosecution as constituting count 2.

[13]  The appellant drove J home the next morning and acted as if everything was alright.  J went into his room and "basically burst into tears".  He did not know what to do.  He did not tell anyone for about two months when he told a friend, N.  He then warned other friends who stayed at the appellant's place from time to time.  He did not go back to the appellant's home after this incident. 

[14]  In cross-examination J conceded he did return to the appellant's property after count 2 occurred but only in company with others.  He agreed that he initially thought the appellant's grabbing of his penis was "a bit of a standing joke" but after the episode constituting count 2 he considered it was "a sexual thing".  He also agreed that he was angry with the appellant because he bought an expensive motorbike which J understood was to be for him but instead the appellant gave it to BD.  He did not care, however, and accepted that "it was [the appellant's] bike to do what he pleased with".  He denied that this made him dislike the appellant; he began to dislike the appellant after count 2 occurred.  He agreed he first told others that the appellant was a paedophile only after the appellant did not give him the bike.  He told the appellant's house-mate, Paul, that the appellant had a lot of marijuana.  He warned BD that the appellant was a paedophile.  BD did not accept this and said that J was jealous.  J maintained that count 2 occurred in the way he described.

[15]  A's evidence on which counts 3 and 4 were based included his interview with police in December 2004 when he was 13 years old.  He gave police the following account.  His grandmother brought him to the police station because she was concerned that something inappropriate was happening after A slept in the appellant's room one night.  There were seven boys sleeping over at the appellant's house that night.  A told police, "I went to sleep and I don't know if this was a dream or anything, but it felt like he was pulling me.  Every time I moved over he tried to grab my arse, … I don't know if that was a dream.  I don't know, and – and there was nothing else like happened after that."  A was a friend of the appellant's 13 year old nephew, BD.  A slept in the same bed as the appellant and a younger boy, DV.  A described the incident to police in more detail:

"I went to bed and I don't know if this is a dream or it really happened.  It felt like he was pulling me sort of thing.

And what do you mean by that? -- Like, wanking off. … Well, he grabbed my dick and like he pulled it up and down sort of thing.

POLICE OFFICER:  How did you know it was [the appellant] doing it? -- Well, [the appellant] was in the middle and it felt like a big hand.

POLICE OFFICER:  And how long did that go on for? -- Oh a couple of seconds. … I tried to push him away and I turned over and pushed him away and he'd try and feel my arse, sort of thing.

POLICE OFFICER:  And how – what was he using to feel your arse? -- His hand.

OK.  And whereabouts on your arse was he feeling? -- Well, in the middle of the two cheeks.

OK.  What it – it might be a bit hard for you to explain, but where exactly was his hand going when it was in between your two cheeks? -- Like, he was pushing it in, sort of thing. 

Yeah. Pushing it in where? -- Like, he actually - wasn't sticking his finger up there, but he was like squeezing it sort of thing. 

What was he squeezing? -- Like, he'd grab it in the top part of my butt, sort of thing.

Mmm-hmm. Okay. All right. So, you said he - he didn't put his finger 'in there'? -- No. 

Okay. and how long was he squeezing it for? -- Oh, about five seconds."

[16]  A explained that the appellant grabbed A's penis with his hand on the outside of A's boxers.  A thought the appellant was asleep because when he looked at him his eyes were closed.  DV slept through the whole night.  The next morning the appellant drove A home.  A dressed and went to school.  Nothing like that ever happened to A again.  A did not see the appellant do anything like that to anyone else.  The police officer asked A why he thought it was a dream.  A replied, "I dunno why, because I didn't think [the appellant] was that kind of guy that would do that." 

[17]  The prosecution relied on the pulling of A's penis to establish count 3 and the grabbing of A's bottom to establish count 4.

[18]  A was cross-examined via closed circuit television on 6 December 2006 when he was 16 years old.  He had known the appellant for six months before he stayed overnight at his property.  He visited the appellant's house between two and six times.  The appellant gave him cigarettes and alcohol and sometimes money for school.  He liked visiting the appellant's place.  BD lived there at the time and he was a good friend of A.  A maintained that he did sleep in the appellant's bed the night the incidents occurred.  He had been drinking alcohol and smoking before he went to sleep.  I would infer from this that the alcohol and cigarettes were provided by the appellant.  He made no complaint to anybody before his grandmother took him to the police.  When his grandmother asked him what was going on out there he told her "nothing".  No-one was sleeping on the couch that night.  A was lying on the lefthand side of the bed facing the wall.  The appellant was sleeping in the middle.  At the time of the incident both the appellant and DV seemed to be asleep.  He was asked:

"Do you agree that it's possible that you were dreaming these things at the time? --  Well, it seems so real, but yeah.  Didn't think he was that sort of person.

I asked whether or not you thought it was possible that you could have been dreaming these things that you say to Police Officer Kelly? -- It could have been possible."

[19]  This incident occurred on the first occasion he stayed with the appellant when he was in Grade 9.  He stayed there on a number of occasions afterwards.  He saw no reason not to.  He denied making up the allegations.  Everything he told the police was true. He conceded, however, that he could have dreamt the allegations in which case they would not be true. 

[20]  In re-examination he said he had never spoken to J about what happened at the appellant's place.  He did not tell his parents or grandmother about what happened because he was young and did not think it was "a big deal".  He kept returning to the appellant's place because his mates were there and he was "a bit of a crowd follower; they would drink alcohol, watch movies, smoke and play games" and he enjoyed sharing these activities with his friends.  He was woken up by feeling a hand on his penis; the hand pulled his penis for a maximum of 15 seconds.  He pushed the appellant's hand away and turned his head around and looked at both the appellant and DV.

[21]  A's then 12 year old brother gave evidence which was recorded in a December 2006 police interview.  The brother said that on the relevant night A slept in the appellant's bed with the appellant and DV.

[22]  DV, who was then only eight years old, gave evidence, recorded in an interview with police in December 2004, that he had never slept in the same bed as the appellant or A; when DV was at the appellant's home he always slept with DV's brother.  The compelling inference from reading the transcript of DV's evidence is that he was anxious to avoid telling police that he slept in a bed with other youths or men "because the police can catch you … and you can go to jail". 

[23]  The appellant gave evidence that his relationship with J, A and the other boys who visited his property was innocent.  What was said to constitute count 1 was nothing more than harmless horseplay with J; it was not sexually oriented.  The episodes said to constitute counts 2, 3 and 4 simply did not occur.  J visited his home regularly over about a nine month period until the appellant told him he was not welcome because of his behaviour and his spreading of rumours.  Neither J nor A ever slept in his bed.  The appellant "wouldn't have been well enough to try anything like that, anyway".

The pre-trial ruling

[24]  On 16 November 2006 a judge refused the appellant's pre-trial application to sever counts 1 and 2 from counts 3 and 4.  There was no application to sever count 1 from count 2 or count 3 from count 4. 

[25]  In refusing the application to sever the counts, his Honour briefly set out the evidence on each count.  He considered that counts 2 and 3 were very similar.  Each allegation involved a teenage boy, 12 to 13 years of age in J's case and 14  years old in A's case.  Each met the appellant through his parents.  Each was invited by the appellant to sleep at his property.  The two sets of counts were separated by two and a half years but each occurred at the same property belonging to the appellant.  Each complainant slept in the appellant's bed at some sort of sleepover.  The appellant was said to have supplied each with alcohol, clothes and/or money.  Each claimed to have been awakened to find the appellant masturbating him.  Whilst there were some dissimilarities in the conduct, particularly in relation to counts 1 and 4, the similarities between counts 2 and 3 were "overwhelming".  The objective improbability of counts 2 and 3 having an innocent explanation was such that there was no reasonable view of the evidence other than one supporting the inference that the appellant was guilty of the offences charged.  The probative value lies in the improbability of each complainant giving accounts of happenings with these degrees of similarity unless the events actually occurred.  The evidence was also probative in dispelling any innocent explanation for the touching, particularly in relation to the complainant A.  Appropriate directions by the trial judge would address the danger of a jury impermissibly using the evidence. 

The appellant's contentions

[26]  The appellant contends that the judge erred in failing to order separate trials in respect of the counts concerning separate complainants; over-valued the similarities and under-valued the dissimilarities in the evidence of each complainant; artificially treated counts 3 and 4 as separate incidents in determining the similarity of the complainant's allegations; mistakenly considered and treated as a similarity that the appellant came to know both A and J through their parents; mistakenly considered and treated as a similarity that the appellant invited each complainant to sleep over at his property; incorrectly disposed of the weaknesses in A's evidence and its necessarily limited probative value by "taking the Crown case at its highest"; and wrongly assumed that the issue in relation to A was whether the touching was accidental.  The appellant's final contention is that the judge also erred in concluding that because counts 2 and 3 were joinable, counts 1 and 4 were also properly joinable.

Conclusion

[27]  Counsels' written and oral submissions and the judge's ruling at the pre-trial hearing make clear that the application was to sever counts 1 and 2 concerning the complainant J from counts 3 and 4 concerning the complainant A, not to sever all four counts from each other.  There was no application during the later trial before a different judge to re-open that ruling or for separate trials in respect of any of the four counts.  But that would not prevent this Court from setting aside a guilty verdict on any count if it amounted to a miscarriage of justice.

[28]  Since the pre-trial ruling allowing joinder of all four counts, there has been a trial and the jury has returned guilty verdicts on all counts.  The issue now for this Court's decision on appeal is not whether the primary judge erred in some way in his ruling allowing the joinder but whether that joinder has resulted in a miscarriage of justice on any count because of the resulting guilty verdicts.

[29]  At the appeal hearing it became common ground that counts 3 and 4 were properly joined with each other.  The acts relied on by the prosecution to establish count 4 were so closely connected in time and type to the acts said to constitute count 3 that it is surprising counts 3 and 4 were ever charged separately.

(a)Were counts 2, 3 and 4 properly joined? 

[30] It is logical to first consider whether count 2 involving J was rightly joined with counts 3 and 4 involving A.  The similarities between those counts are as follows.  Each was said to have been committed by the appellant, a man then in his late 40s, on young teenage boys: J was between 12 and 13 years old and A was 14 years old.  All three offences occurred at the appellant's same rural property when each complainant was temporarily in the appellant's care and staying overnight with him.  The offences occurred when each complainant was asleep after retiring for the evening.  Each complainant was awakened by the appellant's charged conduct which, in each case, included touching in the genital area.  The appellant had cultivated a friendship with both boys.  He had ingratiated himself to them by giving them items such as alcohol, cigarettes, money or treats on at least one occasion before the charged conduct and created at his property an atmosphere of freedom and an environment of appeal to young people.

[31] The differences between count 2 and counts 3 and 4 include the following.  The offences occurred about two and a half years apart.  J was asleep on a couch at the appellant's home immediately prior to the offending conduct whilst A was asleep with the appellant and a younger child in the appellant's bed.  The conduct described by J involved skin contact between J's penis and the appellant's hand whilst A described the appellant touching A's penis through A's boxer shorts without skin contact and then squeezing his bottom.  J said the appellant spoke to him after the event whilst A said the appellant appeared to be asleep after the event and A conceded it was possible he may have dreamt the incident.

[32]  There was no evidence that A and J had discussed the events with each other, but in any case s 597A(1AA) precludes the court from considering the possibility of collusion when determining whether separate trials should have been ordered.

[33]  The starting point in deciding whether count 2 and counts 3 and 4 were of similar character and joinable under s 567 is that they are not able to be joined in the one indictment.  They may only be joined if, in the context of the prosecution case, there is no reasonable view of the evidence on count 2 consistent with the innocence of the appellant on counts 3 and 4 and no reasonable view of the evidence on counts 3 and 4 consistent with the innocence of the appellant on count 2: Phillips[8] and Pfennig.[9] 

[34]  The appellant emphasises the significant weaknesses in A's evidence: he was encouraged by his grandmother to complain to police sometime after counts 3 and 4 were said to have occurred and he further conceded he may have dreamt the incident.  Certainly a jury was not compelled to accept A's evidence on counts 3 and 4 as reliable beyond reasonable doubt.  But equally a jury was entitled to be satisfied beyond reasonable doubt that A did not merely dream the events he described in considerable detail but, as he said in evidence, he was woken up by the appellant's hand pulling on his penis for some seconds before touching and squeezing his bottom for some seconds and that A's concession that these events may have been a dream was merely his way of justifying the absence of a timely complaint and his on-going visits to the appellant's home after the event.  The evidence set out earlier also shows J's account was not without difficulties for the prosecution although it was unquestionably sufficient, if accepted, to support a guilty verdict.

[35]  In determining the probative force of what is said to amount to similar fact evidence, the court does not look at the weight that should be given to the evidence but rather its probative value derived from its specific connection with the count with which it is sought to be joined: Phillips[10] and R v Noyes.[11]  The Court must consider the prosecution case and each complainant's evidence at its highest.  The difficulties with A's evidence emphasised by the appellant were real but not necessarily fatal to the prosecution case.  The appellant rightly points out that, if J's evidence is admissible on counts 3 and 4, there is a danger that the weak (but extant) prosecution case on counts 3 and 4 is strengthened by the similar fact evidence on count 2.  Similarly, J's evidence would be strengthened by the similar fact evidence of A on counts 3 and 4.  But that, after all, is the intended role of the exceptional admission of similar fact evidence.  In each case its strong probative value justifying its admission in evidence and the joinder of the charges is in demonstrating the improbability of J and A independently giving false or unreliable accounts of the appellant's conduct because of the high degree of the similarity of that conduct towards each complainant on each occasion.

[36]  I will not repeat what I regard as significant similarities between the conduct alleged by J and A set out at para [30] of these reasons.  Despite the dissimilarities set out at para [31], the many similarities between the accounts of J and A were sufficiently striking to constitute evidence of a common modus operandi: cf Noyes[12] and R v KP; ex parte Attorney-General Queensland.[13] It follows that if J's evidence of count 2 was accepted, there was no reasonable view of it consistent with the appellant's innocence on counts 3 and 4 involving A.  Conversely, if A's evidence of the commission of counts 3 and 4 was accepted, then there was no reasonable view of that evidence consistent with the appellant's innocence on count 2 involving J: Pfennig[14] and Phillips.[15]

[37]  The primary judge's reasons for allowing the joinder reflected the way the application was argued before him.  His Honour did not err in allowing the joinder of count 2 with counts 3 and 4.  I am satisfied that those charges were properly joined in the same indictment against the appellant because they were in the exceptional category of similar character and that there has been no miscarriage of justice from the joinder and the resulting guilty verdicts.

(b)Was count 1 properly joined with the remaining counts?

[38]  The next issue for determination is whether count 1 was rightly joined with counts 2, 3 and 4.  As previously noted, at the pre-trial hearing, the judge was not asked to sever count 1 from the remaining counts.  The issue before him was whether counts 1 and 2 involving the complainant J should be severed from counts 3 and 4 involving the complainant A.

[39]  J's evidence of count 1 was that it was the first time the appellant put his hand into J's crotch; he squeezed J's genitalia and said, "Woo-hoo".  This evidence is quite different in character from the evidence establishing counts 2, 3 and 4.  It is not of the exceptional character warranting its admission on the trial of counts 3 and 4 as similar fact evidence and nor could the evidence on counts 3 and 4 be said to be similar fact evidence admissible on count 1.  The evidence on count 1 has none of the characteristics of the modus operandi justifying the joinder of counts 2, 3 and 4.  The appellant acted openly in his conduct towards J, conduct which he repeated towards J and others on many occasions.  Unlike the remaining counts, the complainant was not in the appellant's care when count 1 was said to have occurred.  One reasonably open view of J's evidence of the appellant's conduct said to constitute count 1 may be that, despite the disparity in age, it was nothing more than inappropriate horseplay, not indecent treatment.  The appellant gave evidence to that effect.  J's evidence was that until count 2 occurred he thought the appellant's frequent grabbing of his and other young teenagers' penises was "a bit of a standing joke" and only considered it was "a sexual thing" after the episode constituting count 2 occurred.  It follows that count 1 was wrongly joined with the remaining counts and a separate trial should have been ordered on it.  The admission of the inadmissible but highly prejudicial and damaging evidence on counts 2, 3 and 4 in the trial of count 1 means that the appeal against conviction on count 1 must be allowed. 

[40]  The unlawful joinder of count 1 with counts 2, 3 and 4 means that the appeal against conviction on those counts must also be allowed unless no substantial miscarriage of justice has resulted: Criminal Code, 668E(1A).  Whilst J's evidence of count 1 did not amount to similar fact evidence on counts 2, 3 and 4, it was evidence which would have been admissible in respect of count 2 only, not as propensity evidence but as evidence of an uncharged act showing the full extent of the relationship between the appellant and J.  Because the evidence on count 1 was admitted, not on that very limited basis on count 2 but as similar fact evidence on all counts, the jury were not correctly directed on its use.

[41]  The learned trial judge gave the jury the following relevant directions, which (on the premise that the joinder was proper) have not been criticised in this appeal, on the use to be made of the similar fact evidence at trial:

"… You have here two complainants. There's two counts for two complainants. Let me explain to you what the law says about how you approach this task. Always you must be satisfied before you can arrive at a verdict of guilty that the defendant was responsible for the acts. And more particularly in this trial, that they happened particularly with counts 2, 3 and 4, did it happen. If you're not satisfied beyond reasonable doubt that it didn't happen, then you'd go no further with your verdict. It follows, it must be not guilty.

So did they happen? Well, am I satisfied beyond reasonable doubt?  To what extent can I take into account the evidence of each other boy when considering the offences against them? Do you consider the similarities between the acts are so striking that you are satisfied beyond reasonable doubt that [the appellant] committed each of the offences? Are the similarities so striking that you're able to exclude coincidence beyond reasonable doubt? It is certainly not enough you consider that the defendant having been responsible for other acts, these acts having happened, firstly, and [the appellant] having done them, in other words, being responsible. You must not say well, he's the sort of person who might commit other offences.  That's what we call propensity evidence and it's something that you should avoid.

It's a matter for you to answer this question; are the similarities so striking you're able to exclude coincidence beyond reasonable doubt?  Has he put his signature, or his stamp, on the acts and to conclude that it makes more likely what the other child has said?  [The prosecutor] has summarised those similarities for you.

I've stressed to you already, and I stress again, that you must consider the evidence in relation to each charge separately and reach a separate verdict in respect of each.  It does not follow that because you reach a view on one count that there must be the same view on another count.  You must look at all the evidence to see if the prosecution has proved its case on each charge against each complainant.  You must be satisfied that the evidence of each complainant is credible and reliable before you can use that complainants' evidence in any way.  In considering that you must be satisfied that the evidence of each of the complainants is independent.  And I direct you, you cannot use the evidence of the complainants in combination unless you are satisfied there is no real risk the evidence is untrue by reason of concoction.  And you heard [the prosecutor] address you on that.

…

The prosecution argue that there is no reasonable view of the evidence of the two complainants other than that the defendant is guilty as alleged. But you must be careful not to simply arrive at a conclusion simply based on the fact that there's a combination, there are multiple allegations. The evidence of any one complainant whom you accept is credible and reliable can be used by you as a circumstance which might confirm, support or strengthen the evidence of another complainant.

But this is only if you are satisfied on all the evidence you have heard that there is no reasonable view other than the defendant is guilty of the offence. The possibility that the complainants, both complainants, are lying can be rejected.

You cannot reason this way, you cannot use the fact that there's more than one complainant to say oh, well, the evidence persuades us that he's the sort of person who'd commit these sort of offences, or is of bad character, and therefore we'll convict him on all the charges. You must not do that exercise. You also can't approach it like this; I'm satisfied beyond reasonable doubt that he committed offences against another person therefore he must have committed these offences so I'll find him guilty on these as well.

That's not a particularly easy direction. If you have any difficulty with it after you've considered the evidence and you need further assistance, then don't hesitate to ask me for that assistance."

[42]  Those directions required the jury to compare generally the evidence of J on the one hand and the evidence of A on the other when determining how to use the similar fact evidence on the two sets of counts rather than requiring them to treat each count as similar fact evidence on every other count.  J's evidence of the appellant's conduct said to constitute count 1 was of a relatively trivial episode when compared to the more serious conduct constituting counts 2, 3 and 4.  The trial judge's quoted directions, which do not specifically advert to count 1, support that view.  The wrongly admitted evidence on count 1 should have had no real significance in the jury's determination of their verdicts on counts 2, 3 and 4.  That is a fact this Court must take into account in deciding whether there has been a substantial miscarriage of justice under s 668E(1A): Weiss v The Queen.[16]  The combined effect of the admissible evidence of J and A at trial, despite the appellant's contrary evidence, made for a convincing prosecution case.  In all the unusual circumstances pertaining here, after considering the evidence properly admitted in respect of counts 2, 3 and 4 and excluding the wrongly admitted similar fact evidence said to constitute count 1, I am satisfied beyond reasonable doubt of the appellant's guilt on counts 2, 3 and 4.  The jury's guilty verdict on those counts has not resulted in a substantial miscarriage of justice: Weiss.[17] I would dismiss the appeal against conviction in respect of counts 2, 3 and 4.

[43]  The final issue for determination is whether a re-trial should be ordered in respect of count 1 or whether instead this Court should enter a verdict of acquittal.  The evidence said to constitute count 1 is by no means compelling but ultimately it is solely a jury question whether the conduct alleged by J against the mature appellant amounts to mere innocent inappropriate horseplay or indecent treatment of a 12 year old boy.  The amount of time spent by the appellant in pre-sentence custody, the convictions already entered against him on counts 2, 3 and 4 and the sentence imposed on those counts strongly indicate that the prosecution of any re-trial on count 1 would not be a prudent use of public money.  Under our criminal justice system that issue remains, however, one for the prosecution alone.  This Court must order a re-trial on count 1.

ORDERS:

1.The appeal against conviction in respect of count 1 is allowed.  The conviction and verdict is set aside.  A re-trial is ordered on count 1.

2. The appeals against conviction on counts 2, 3 and 4 are dismissed.

[44]  HOLMES JA:  I have had the advantage of reading the reasons for judgment of the President.  I respectfully agree with her conclusion, for the reasons she gives, that count 1 ought not to have been joined with the other counts on a similar fact basis.  I have, however, come to a different conclusion as to whether the joinder of count 2 with counts 3 and 4 was warranted.

[45]  The evidence disclosed general similarities in the development of the friendships between the appellant and each of the complainant boys, A and J. But there was an important difference in timing in the circumstances of the respective assaults:  in the case of A, the assaults occurred the first time he slept at the appellant’s house, before any particular relationship had developed.  A had met the appellant through the latter’s nephew about six months earlier, but there was no evidence of contact between them over that period. The learned judge at first instance was mistaken in thinking that, like J, A had come to know the appellant through his parents and had been invited to sleep at his property. On the occasion on which A first slept at the appellant’s house, he had gone there uninvited with other boys. There was no evidence that the appellant had previously cultivated any friendship with A or had encouraged him to come to the house.

[46]  In response to a question as to whether the appellant had ever given him anything, A said that he had been given cigarettes and alcohol and sometimes money. He was not asked, and did not say, when in the six week period over which he visited the appellant’s house, that occurred. Although he said that on the night the assaults took place he had been drinking alcohol and smoking before he went to sleep, he did not say that the cigarettes or alcohol were provided by the appellant.  It was quite possible that they were, but it was equally possible that they had another source; A did not give any evidence on the point. The evidence suggested that the appellant had set out to ingratiate himself with J by the provision of gifts before assaulting him; although he similarly gave gifts to A, one could not, in my view, safely infer that that occurred prior to the one occasion on which he assaulted A. 

[47]  In the absence, in A’s case, of any pre-assault pattern of the appellant’s developing a relationship with him by gift-giving and encouragement to come to his house,  the only common aspects of the cases involving J and A are that each slept in the appellant’s house and complained of being indecently assaulted while sleeping.  Those assaults were not of any distinctive character.  J described waking to find his shorts and boxer shorts undone and pulled down to his knees while the appellant masturbated his penis.  A also described masturbation of his penis through his clothing, with caressing of his bottom at the same time. 

[48]  As this case makes clear, opinions may differ as to when the point has been reached at which particular sets of offending possess features warranting the joinder of the charges.  In my view, these two sets of events do not manifest a marked similarity or a distinctive modus operandi so as to give the evidence relating to one a real probative effect in respect of the other.  The evidence does not rise above establishing disposition.

[49]  Consequently, I respectfully differ from the other members of the Court in thinking that count 2 was properly joined with counts 3 and 4.  I would allow the appeal and order new trials, the trial for counts 1 and 2 to be held separately from that for counts 3 and 4.

[50]  ATKINSON J:I agree with the reasons of, and the orders proposed by, the President.