SUPREME COURT OF QUEENSLAND 

KEANE JA: 

[1] I have had the advantage of reading the reasons for judgment prepared by Muir JA.  I agree with those reasons and with the order proposed by his Honour.

MUIR JA:

[2] The appellant was tried in the District Court on three counts of indecent assault.  He was convicted on two counts, acquitted on one and sentenced to a wholly suspended 12 month term of imprisonment.  He was also fined $2,000.  Each count was in respect of a different female but the offences all took place in the water off the patrolled part of the beach at Alexandra Headland at about the same time.  The appellant appeals against his convictions on the grounds discussed below.

The evidence of [A], the complainant in count 2

[3] Witness [A] gave evidence to the following effect.  On New Year's Day 2006, she was swimming in "fairly rough" surf at Alexandra Headland when she felt a man, who she had noticed quite close to her, touch her on the back.  She looked at him and continued to swim away from the beach.  She noticed that he had straight, shortish, sandy hair, blue eyes and a "very distinctive face" with a "squashed nose".

[4] After she had swum about three or four metres, she noticed the same man coming towards her.  She swam away from him but felt him touch her down her back with both hands.  She said it was the same man.  She felt his fingers and palms.  She then swam away from him rapidly.  Believing that she had swum clear of the man, she looked up and saw that he was on her mother's back.  She "saw frantic splashing" by her mother and observed that the person was the one who had touched her.

[5] Her mother swam "frantically" away from the beach and the man then swam back to her.  She said:

"he … put his hands around my breasts, rubbed his hands down my body to my waist; put one hand inside my groin and the other on the other side of my thigh and then I was kicking and trying to get away and then he slid his hands down my leg as I was trying to free my leg and held on to my ankle.  I turned and look at him in the face and said to him, 'What are you doing you fucking freak', like to let go of me and he had my ankle.  So, you know, I'm kicking, kicking and then I went to swim off and we're looking at each other and he said, 'Sorry' and I heard he had an accent."

[6] Shortly after this incident she had the following exchange with her mother:

"And then I yelled out, 'Mum' and then she said, 'That man just put his hands down my bathers'.  And I said, 'I'm going in to tell the lifeguards.'  I was really angry.  So I just caught a wave straight in.

Did you say anything back to your mother at that point in time?--  I said - she said, 'That man just put his hands down my bathers', and think I said - my words back to her were like, 'He just felt me up as well.  I'm going in to tell the lifeguards.' "

[7] She said that although she was wearing goggles, her vision wasn't obstructed and that she could see her assailant's face for the whole of the period during which he swam from her mother to her.  She noticed that he had a "hairy back" and was "exactly the same man" who had previously touched her.  She described his bathers as "blue navy shorts – not long board-shorts but just like swimming shorts" with "a bright yellow strip at the very top". 

[8] [A] caught a wave into the beach, body surfing as quickly as she could, and spoke to the lifesaver patrol captain, Mr Thornton, whom she located on the wet sand at the water's edge.  She pointed her assailant out to him, remarking that he had an accent.  The patrol captain asked her to go back into the water with a junior lifesaver, whom she took to near her assailant so that he could be kept under observation.  When she returned, leaving the junior lifesaver in the water, there was another woman, [C], talking to Mr Thornton and a female lifesaver.  She overheard [C] complaining to Mr Thornton of something that had happened to her.  Her mother was also present.

[9] [A] kept her assailant under observation for possibly 30 minutes.  During that time, she noticed that:

"He was lining up women in the surf, lining, you know, like waiting for a wave, lining up a girl or woman and catching the wave in and feeling - landing on them and feeling them up."

[10]  She said that during the 30 minute period he probably made contact with nine females but with no males.  She observed the man leave the water in company with a short, bearded man.  Mr Thornton approached them, the bearded man left and her assailant remained, speaking to Mr Thornton.  When her assailant walked off she then noticed him get into the driver's seat of a coffee/latte coloured Toyota Camry with a number plate 800-GUG and drive off in it.  The bearded man, a woman and two children were already at the car.

The evidence of [B], the complainant in count 3

[11]  [B's] evidence was that when swimming with her daughter, she bumped into a man and "felt a brush" on her shoulder.  She stood up, had a quick look at him and moved another metre to her right and started to swim.  She then felt "a touch – a slide down my side on my left-hand side from under the arm and it went right down my leg as I was swimming".  She saw that the same person was involved in the incident.  She caught up with her daughter and noticed the same person hanging around near them. 

[12]  She and her daughter were about five or six metres apart in deep water and she was able to see the man's face clearly.  He was "fair-skinned, he had light-coloured hair and it was short, and he had rather distinguished features; he had a very strong jaw and a long nose".  His hair was straight and his nose "a bit bent, a bit bumpy".  As she went to catch a wave, she felt a hand brush "right down my leg and to my ankle … the next thing I was conscious of was this man was on top of me as I was surfing in".  When the wave lost momentum, the man got off her back and stood up before she did.  He was a metre away and she noticed:

"That he was tall, that he had dark blue bathers on and … was the same person …"

[13]  She moved away very quickly and caught a few more waves.  About 15 minutes later the person came up to her again.  She described what then happened:

"Well, then I went to get on another wave and I felt this hand slide down the back of my bathers.  It was the flat palm of the hand.  I was looking in towards the beach and the hand went from the top of where the straps go, across the back, down the back, right down to my buttocks area.  It was a slide."

[14]  She was horizontal, facing in towards the beach when this incident occurred.  Her description continued:

"I felt the hand go down my bathers and I absolutely freaked. I was absolutely distraught and I spun around, and as I spun around the hands - two hands then grabbed my right leg and slid all the way down - I'd let the wave go and the two hands held my leg right up high in my groin, on my thigh, and slid all the way down because I was kicking to try and - to get away and actually held my ankle."

[15]  She saw the man's face and recognised him as the man who had touched her previously.  [B] swam rapidly to her daughter and said, "That man has just put his hand down my bathers … He's touching me up".  Her daughter responded, "We better go and report it.  He's doing the same to me." 

[16]  [B] then headed for the shore.  When she reached the shore she spoke to a female lifesaver and was directed to Mr Thornton who was already speaking to [A].  He asked if she, or they, could point out the person concerned.  He was about 20 to 30 metres out in the breakers and she pointed him out.  She saw "the dark blue board shorts.  They were shortish board shorts, halfway down the leg and they had a yellow flash across the back, just under the elastic band and there were two yellow stripes down the side."  When [A] and [B] were talking to Mr Thornton, another woman, [C], approached and asked, "Are we talking about that sleaze out there?"

[17]  [B] kept the man under observation for about half an hour, during which she "saw him surfing, catching waves into groups of women".  That happened perhaps eight times.  She didn't notice him collide with any male swimmers but she did see a male shaking his fist at him.

[18]  When he left the water she identified him as the man who had touched her and he was spoken to by Mr Thornton.  After he left Mr Thornton she followed him and saw him throw something into the boot of a Toyota Camry, slam the lid, drop into the driver's seat and drive off.  Its registration number was 800-GUG.  There was a female sitting in the front passenger side of the vehicle and two children and the shorter man, who had come out of the water with the assailant, in the back.

The evidence of [C], the complainant in count 1

[19]  [C] was grabbed around the leg as she was catching a wave in.  She stood up, turned around and saw a "tallish" man with a hairy back wearing bathers which were "dark or navy blue with a yellow V at the top at the back and a yellow stripe down the side".

[20]  [C] went back out into deeper water with her son, caught another wave and was "grabbed again, around the arm".  She turned around and looked at the man and again noticed his hairy back and that he was wearing "the same togs".  Feeling uncomfortable, she moved towards the northern flag, caught some more waves and was grabbed with both hands around the waist from behind.  She saw her assailant's face and noticed that he was smirking but she didn't pay much attention to the face.  She looked for other features, "the back, the togs" in order to identify the person and to satisfy herself that it was the same man.

[21]  [C] left the water immediately after this incident and, after sitting on the sand for about five minutes, went up to Mr Thornton to report what had happened.  By then [A] and [B] were already talking to him.  She watched the man in the surf for about half an hour and noticed that he "was catching waves in and was crashing into women as he did so".  He didn't crash into any men.  She saw the man leave the surf, be spoken to by Mr Thornton and observed that he was wearing the same board shorts as the man who touched her in the water.  She said "he was tallish, hairy back, same board shorts.  I was definite in my mind it was the same man."  She also followed the man and saw him drive off in a Toyota Camry with the registration number 800-GUG.

Mr Thornton's evidence

[22]  Mr Thornton gave evidence of his conversations with [A], [B] and [C].  He recalled being told by [A] that the person had an accent which she thought was South African.  He recalls the person being pointed out to him in the water.  He sent a junior lifesaver out to observe surreptitiously what the man was doing from a distance of around 10 metres or so.  He saw the man who had been identified to him, move on four or so occasions, until he was opposite females and "then he would catch a wave in such a way that he crashed into them".  He didn't observe the person making contact with any men.  When the person left the water he spoke to him and accused him of deliberately running into people and informed him of complaints made against him of indecent touching.  Asked if the person responded, he replied:

"He said it was accidental, and I - and I think that's when I said, 'Once, maybe twice, could be possibly accidental, but not' - not with the ladies, you know, telling me what had happened and the observations I'd made. It was obviously many - sort of many times over.

Did he say anything in response to that?-- He said, 'I'm sorry. I'm only here visiting from South Africa' - he had a South African accent - a strong South African accent – 'and I'll be going back tomorrow. I'm only here on holidays'."

Other evidence

[23]  Mr Saayman, a former resident of South Africa and friend of the appellant, gave evidence that the appellant was probably over two metres tall.  He said that the appellant went to the beach with him, his wife and two children that day and was wearing olivey-green board shorts with a light coloured stripe down the side.  He said that on departure in his car, he drove and the appellant sat in the back.  The appellant did not give evidence.

Determinations on a pre-trial hearing

[24]  A pre-trial hearing took place on 20 August 2007 in which it was held that:

(a)The evidence of [C] was admissible in proof of counts 2 and 3, the offences against [A] and [B] respectively;

(b)The evidence of [A] and [B] was admissible in proof of count 1, the offence against [C];

(c)The evidence of "uncharged acts" was admissible in proof of counts 1, 2 and 3.

The "uncharged acts" were the appellant's conduct observed by [A], [B] and [C] and Mr Thornton from the beach.

Grounds of appeal

[25]  The appellant contends that these rulings were errors in law and that the judge erred also in failing to order that count 1 be tried separately from counts 2 and 3.  Other grounds of appeal are that the trial judge erred in failing to direct the jury as to the use which could be made of evidence given by [C] in the trials of counts 2 and 3 and that the jury's verdict was unreasonable. 

[26]  I will now consider each ground of appeal.

The judge in the earlier trial erred in pre-trial rulings that the evidence of [C] was admissible in proof of counts 2 and 3; that the evidence of [A] and [B] was admissible in proof of count 1 and that the evidence of "uncharged acts" was admissible in proof of counts 1, 2 and 3.

[27]  The argument advanced by counsel for the appellant was, in substance, as follows.  The relevant evidence was divided into three categories.  The first category was the evidence of the conduct alleged by [A] and [B] which was of an individual engaged in highly specific, calculated and deliberate conduct of a sexual nature.  Each of [A] and [B] had a reasonable opportunity to observe the offender's face.  The second category was the evidence of [C], who gave evidence of three physical contacts which occurred when she was body surfing.  The nature of the touching was vague.  The remaining category was the evidence of "uncharged acts" observed from the beach.  There is no evidence of the nature of the contact, if any, made with any individual by this activity and no evidence of the contact having a sexual connotation.

[28]  Evidence in the second and third categories cannot be admissible, as the first judge held, to rebut accident.  It makes no sense to speak of "accident" in relation to counts 2 and 3.  "Accident" was not raised or relied on by the defence.  Even if the evidence could have been called to rebut "accident", it would still be inadmissible if there was a reasonable view of it consistent with the innocence of the accused.[1]

[29]  [A] and [B] were attacked by a person intent on some form of sexual gratification.  On the same day, at the same location, where hundreds of people were present, "another individual was observed behaving in an anti-social and boorish fashion by deliberately inconveniencing and possibly even endangering other swimmers".  [C] was one such individual who came into contact with this person during this activity, which did not necessarily have any sexual connotation, but which did display reprehensible conduct.  When the appellant emerged from the water he was taken to be this anti-social individual and conclusions were quickly formed as to his responsibility for the assaults.

[30]  The modus operandi revealed by the evidence in the second and third categories is sufficiently different from anything described in the first as to render any assertion of a "striking similarity" impossible.  One explanation for a different modus operandi might be that different individuals were involved.  That is not an unreasonable conclusion and the evidence is thus inadmissible.  Although the evidence of each of [A] and [B] is admissible to prove each of counts 2 and 3.  On the further assumption that it was the appellant who was observed committing the "uncharged acts", the evidence of those acts might be admissible in support of the Crown case on count 1.  The evidence in the second and third categories was not admissible in proof of any issue relevant to the offences described in the first category and the evidence described in that category was not admissible to prove any charge was the result of the conduct described in the second category.

Consideration

[31] Gleeson CJ explained in HML v The Queen:[2]

"The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible … Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.  That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability."

[32]  As appears from the following further passage from the Chief Justice's reasons, the admissibility of evidence is not to be determined, generally at least, by the application of any restrictive or pedantic approach:[3]

"Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.  It may explain a statement or an event that would otherwise appear curious or unlikely.  It may cut down, or reinforce, the plausibility of something that a witness has said.  It may provide a context helpful, or even necessary, for an understanding of a narrative."

[33]  An exception to these general principles exists for what is known as "similar fact" and "propensity" evidence.  In HML v The Queen, Hayne J summarised the test for the admissibility of such evidence articulated in Pfennig v The Queen [4] as follows: [5]

"Pfennig establishes the rule that governs the admission of evidence that will reveal an accused person's commission of discreditable acts other than those that are the subject of the charges being tried.  The rule takes as its premise that evidence of other discreditable acts of the accused is ordinarily inadmissible.  The foundation for the rule excluding evidence of other discreditable acts of an accused is that, despite judicial instruction to the contrary, there is a risk that the evidence will be used by the jury in ways that give undue weight to the other acts that are proved.  That is why the exception to that general rule of exclusion is drawn as narrowly as it is by Pfennig.  It is why Pfennig requires that evidence of other acts may be admitted only if it supports the inference that the accused is guilty of the offence charged, and the evidence of those other acts is open to no other, innocent, explanation.  But it also follows from the considerations that have just been mentioned that the exclusionary rule is not to be circumvented by admitting the evidence but directing the jury to confine its uses."

[34]  His Honour[6] gave the following explanation of the way in which the test was to be applied:

"In deciding the question of admissibility presented by Pfennig, the trial judge is not called on to decide whether the evidence which the prosecution intends to adduce does or does not establish the accused's guilt.  In most cases, perhaps all, that inquiry could not be undertaken.  To ask whether evidence proves guilt would not be possible because the trial judge will usually be required to decide disputed questions of admissibility before any, or at least all, of the evidence to be called by the prosecution has been adduced.  That is why, as the Court pointed out in Phillips v The Queen,[7]

the test [in Pfennig] 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. (Emphasis added.)

Rather, as the Court went on to say in Phillips, Pfennig requires 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.  And as thus appears from what was said in Phillips, the trial judge is not called upon to make some separate or sequential assessment of evidence to be led at the trial in which it is necessary or relevant to ask whether the evidence, with or without the material whose admissibility is being considered, would support a verdict of guilt.  Rather, the determinative question is whether there is a reasonable view of the similar fact evidence which is consistent with innocence.  And as explained earlier, in cases of the kind now under consideration (in which absence of consent is not an issue) there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant which would do other than support an inference that the accused is guilty of the offence being tried."

[35]  The central issue on the trial was identification.  Defence counsel did not suggest to any of [A], [B] and [C] that they were not handled by a man in the surf in the way they described and the cross-examination of each of them was directed to attempt to show weaknesses or inconsistencies in the identification evidence.  One such line of cross-examination attempted to raise the possibility that the identification of the offender to Mr Thornton and the complainant's own perception of identity was influenced by discussions which each had had with another or the others of them after they had left the water.

[36]  The evidence of each complainant was relevant and prima facie[8] admissible in respect of the offences against the other complainants on the basis that the circumstances of each series of touching "including the description of the assailant, were so similar as to be beyond the realm of coincidence."[9]  Using the evidence, the jury would have been entitled to conclude that the same person perpetrated the acts in the three series of acts "and if they were satisfied beyond reasonable doubt that the accused was correctly identified in any one instance, they were entitled to  convict him … of all the offences with which he was charged."[10]

[37]  That is how Deane J explained the basis of admissibility of evidence relating to any one of the three complainants in the cases against the other two complainants in Sutton v The Queen.[11]  In Sutton, all three complainants, the offences against which were being tried together, were the victims of sexual attacks by a man who grabbed each complainant from behind or from the side, placed his hand over her mouth, threatened her with death if she screamed and compelled her to walk a short distance to the scene of the sexual misconduct.  Two of the complainants identified the accused as their assailant.  The third did not but, in her case, there was evidence of a confession.  After making the observations quoted above, Dawson J said:[12]

"That is to say, proof of the accused's identity in one instance must have given rise to a clear inference that he was the offender in the other instances.  In cases such as this it is sometimes said that the circumstances of the various offences must be strikingly similar.  See, e.g., Director of Public Prosecutions v. Boardman.  That, however, is merely to posit another test of no particular precision. See Scarrott v The Queen, at p 129, per Scarman LJ.  In my view it was for the trial judge to determine admissibility by deciding whether the evidence was, if accepted, such that a reasonable jury ought to conclude that the similarity between the descriptions of the various offences was beyond mere coincidence and that there was no reasonable explanation of that similarity consistent with the innocence of the accused."  (footnotes deleted)

[38]  In Pfennig, Mason CJ, Deane and Dawson JJ[13] stated that "striking similarities", "unusual features", "underlying unity", "system", or "pattern" were not essential pre-requisites of the admissibility of propensity or similar fact evidence.

[39]  I am unable to accept the appellant's counsel's submissions to the effect that the nature of the touching of [C] was "vague" and is "sufficiently different from" the conduct in relation to [A] and [B] as to render any assertion of "striking similarity" impossible.  The three series of incidents concerning the three women each occurred in the water between the lifesavers' flags off the same beach and were closely related in time.  Each series of incidents commenced with a contact which, had it been the only contact, would have been difficult to categorise definitively as deliberate or as having a sexual connotation.  The conduct was persistent and, in each case, escalated in seriousness.  It was also brazen and reckless in the sense that, because of its nature and repetition, it was likely to provoke the complaints which in fact eventuated.

[40]  The difference in quality between the conduct in relation to [C] on the one hand and in relation to [A] and [B] on the other is that in the former, unlike the latter, none of the touching was on or about the breasts or genital region.  But the last contact with [C], a grabbing around the waist with both hands from behind, was extremely intrusive, like some of the contact with [A] and [B].  It is difficult to view such handling by a male stranger of a woman in swimming togs in a non-sexual light.

[41]  The evidence of [C], of course, in so far as it bore on the offences against [A] and [B], went beyond a description of the ways in which she had been touched.  She described her assailant as a "tallish man" with a "hairy back", wearing togs which were "dark or navy blue with a yellow V at the top at the back and a yellow stripe down the side".  Although she was unable to give evidence of the assailant's facial appearance, her identification evidence was consistent with that of [A], [B] and MrThornton.

[42]  [A] identified her assailant, who, on the evidence, was plainly [B's] assailant, as wearing "blue navy shorts – not long – board shorts but just like swimming shorts … [with] a bright yellow strip at the very top".  She also described "two yellow stripes down the side" and noticed the hairy back.  She described his hair, eyes and "squashed nose".  When she saw the man on the beach, she concluded that he was "about six three".

[43]  [B] said that her assailant wore "dark blue bathers".  Later, she described them as "dark blue board shorts … shortish board shorts … and they had a yellow flash across the back".  [B] was able to describe the man's hair and skin colouring.  She said that she recognised the face of the man speaking to Mr Thornton as that of the person involved in the incidents with her in the surf.  She described him as "quite tall … over six foot".  It was not suggested to [B] or her daughter in cross-examination that their respective physical descriptions of their assailant did not match the appearance of the appellant.

[44]  Mr Thornton described the man he spoke to on the beach as "tall … over six feet … raw-boned and looked like he'd perhaps been in a few scrums".  [B] thought the man's nose "looked a bit bent, a bit bumpy".  Thus each of [A], [B] and MrThornton noticed some disfiguration of the appellant's nose.

[45]  In my view, evidence relating to the offences against [A] and [B] was properly admissible in the case concerning the offence against [C] and vice versa.  In each case such evidence, on the assumptions stated in Phillips, supported the inference that the appellant was guilty of the offence charged and the evidence concerning the offences other than the one being considered was open to no other innocent explanation.  The primary judge was not required to exclude the evidence on the basis that there was a reasonable view of it consistent with innocence.  Accordingly, this ground of appeal does not succeed.

[46]  The ground of appeal relating to the admissibility of the "uncharged acts" was not pressed.  No doubt that was because the primary judge ruled that such evidence was admissible only if accepted beyond reasonable doubt and then only to show that the conduct in relation to the complainants was deliberate.  That direction was extremely favourable to the appellant and, incorrectly, prevented the jury from using the evidence as part of the general body of identification evidence.

The judge on the pre-trial application erred in failing to order that count 1 be tried separately from counts 2 and 3

[47] Counsel for the appellant accepted that success on this ground relied on establishing that the evidence on count 1 was inadmissible on counts 2 and 3.  The ground therefore fails.

The trial judge erred in failing to direct the jury as to the use which could be made of evidence given by [C], the complainant in count 1

The appellant's submissions

[48]  It is submitted by counsel for the appellant that there was a failure to provide to the jury instructions as to the manner in which evidence adduced in support of count 1 on the indictment could be used by them in proof of counts 2 and 3.  Even if, contrary to the argument advanced on behalf of the appellant, the evidence in relation to count 1 was admissible in relation to counts 2 and 3 and vice versa, there was still a need for "a direction as to the limited purpose for which the evidence was admitted; a warning as to the dangers which are inherent in such evidence and an injunction against impermissible propensity reasoning".  Reliance was placed on RPS v The Queen;[14] KRM v The Queen;[15] BRS v The Queen[16] and on observations of McMurdo J in R v HAB,[17] a case in which the appellant was tried on counts of indecent treatment of two child complainants.  A ground of appeal in that case was that the trial judge erred in failing to warn the jury against the dangers of propensity reasoning.  His Honour remarked[18] that some instruction to the jury was required on the use which could or could not be made of one complainant's evidence in the case involving the other complainant and then said:[19]

"[12] … Yet no direction was given in those terms, or otherwise. Nor was any redirection sought.  Still the learned trial judge was obliged to give the jury the instructions to which they were entitled, including instructions as to how they were not to reason: RPS v The Queen.

…

[13]Had the trial judge held the evidence of one complainant to be inadmissible on the count or counts involving the other complainant, a necessary direction would have been that the jury could not use, in any way, the evidence of one complainant to convict the appellant on a count involving the other. And a propensity warning would also be required.  The context would have been that instanced by McHugh J in KRM v The Queen where he said:

'In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment.  If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts.  An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts.

…'

[14]  Alternatively, if the evidence was admissible as similar fact evidence, as the prosecution would argue and the appellant's trial counsel seemed to accept, still the jury had to be warned.  In particular they had to be told that probability reasoning carried a danger that "(c)ommon assumptions about improbability of sequences are often wrong".  With that warning, it may have been unnecessary to give a distinct instruction against propensity reasoning: see for example the respective views of McHugh J and Hayne J in KRM.  My own view is that it would be preferable for the jury in that event to receive also a propensity warning but whether it would be necessary is a question which need not be decided now.

[15]  So on either view of the admissibility issue, the jury was not instructed as it should have been.   In a case of this kind, that involved an irregularity in the conduct of the trial which would warrant the quashing of the convictions, unless the proviso in s 668E(1A) of the Criminal Code 1899 (Qld) should be applied."

The respondent's submissions

[49]  Counsel for the respondent submitted that the primary judge had correctly directed the jury.  He initially directed the jury to consider each charge separately, "evaluating the evidence relating to the particular charge".  He summarised the evidence the prosecution was relying on for each count, referring only to the evidence of the complainant in respect of the subject offence.  Having done so, he again reaffirmed the direction that "you must consider each charge separately".  Shortly afterwards, he directed "you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to the specific charge".

Consideration

[50]  The primary judge discussed each of counts 1, 2 and 3 by identifying the acts the prosecution relied on to establish the offence; summarising the evidence of the complainant in relation to those acts and, except in respect of count 1, directing that the jury must be satisfied beyond reasonable doubt that the complainant "has correctly identified the defendant as the person who did these things".  In this part of the summing-up the primary judge appeared to be directing that in determining guilt on each count, the jury could have regard only to the evidence of the complainant in order to establish the acts complained of and that they were performed by the appellant.  Such a direction would have been wrong but extremely favourable to the appellant.

[51]  If the direction was to be understood in that way, it would have excluded consideration of the evidence of Mr Thornton.  However, elsewhere in his summing-up, the primary judge discussed Mr Thornton's conversation with the appellant and Mr Thornton's observations in terms which made it plain that MrThornton's evidence was relevant to the determination of the three counts.  After discussing Mr Thornton's evidence, the primary judge discussed the identification evidence of the complainants.  That discussion included the following: 

"Now, the case against Mr Pretorius depends almost entirely on the correctness of the visual identification of Mr Pretorius by the three complainants, which Mr Pretorius alleges to be mistaken."

[52]  He later said:

"In this case all three witnesses purported to identify the defendant who was a complete stranger to them.  What time elapsed between the original observation and the subsequent identification?  Was there any material discrepancy between the description given by the witnesses and the evidence the witnesses have now given in Court.

The evidence of each individual witness, while important in itself should not be regarded by you in isolation from other evidence adduced at the trial.  Other evidence tending to implicate the defendant may be relevant."

[53]  Plainly, these directions were given on the implied premise that the identification evidence of each complainant was admissible in all three cases.

[54]  Whilst the directions overall may well have had some internal contradictions, they were not such as to disadvantage the defence and no prejudice in that regard was suggested.  After the passages from the summing-up just quoted, the primary judge dealt with the identification evidence very comprehensively in a way which clearly and appropriately spelt out to the jury any relevant risks inherent in that evidence.  There was no complaint about those directions.

[55]  The appellant's attack on the directions is confined to the consequences of the primary judge's failure to give a direction concerning the limited purpose for which similar fact or propensity evidence was admitted and a warning about the dangers inherent in that evidence.

[56]  Relevant passages from McMurdo J's reasons in R v HAB are set out above.  But this is not a case in which the judge was required, relevantly, "to warn the jury about how they should not reason".[20]  Nor was it necessary to give a warning of the nature of that stated in KRM v The Queen.[21]

[57]  The primary judge warned comprehensively of the danger that each complainant's evidence of identification may have been affected by conversations with and descriptions given by the others.  And, as I have said, his directions in respect of identification were clear, comprehensive and appropriate.  The directions, as they should have, addressed the facts before the jury.

[58]  There was no contest about whether the acts relied on to establish the offences were perpetrated.  The sole issue in relation to counts 2 and 3 was the identity of the perpetrator.  The evidence of [C] with respect to counts 2 and 3 bore only on that question.  Although [C's] evidence was capable of bolstering [A] and [B's], their evidence, without [C's], was clear and compelling.

[59]  This was not a case like R v HAB, in which the accused had acted indecently towards two complainants at different times over a lengthy period.  Here, as already described, the "strikingly similar" conduct against [A], [B] and [C] took place within a short period in the same location.  The three complainants each observed their assailant in close proximity and responded to the conduct by making prompt complaints.  [A] and [B], who had made careful observations of their assailant's physical appearance, maintained their observation of him, except for a short period during which they swam to the beach and located Mr Thornton.  They then kept the man they identified under observation until he emerged from the surf.  There was a larger gap between the time of the last incident involving [C] and her identification of her assailant from the beach, but that lapse of time was surely insufficient to cause [C's] recollection of the man's height and the colour of his togs to fade.

[60]  [A], [B] and [C] saw the man they had under observation, on six to eight occasions manoeuvre himself into a position to swim or surf into women, never into men.  This conduct, although apparently not resulting in a complaint to the lifesavers, tended to confirm the identification made by the women.  It was not a case, as the appellant's written submissions implied, of [A], [B] and [C] first seeing the appellant (and it was not suggested that the man observed from the beach was not the appellant) swimming into other women and then identifying him as the person who had handled each of them.  It was, however, a case concerning anti-social conduct directed exclusively at women which continued without significant interruption from the time of the first touching of [A], [B] or [C].

[61]  Normally, where there is more than one complainant in a sexual offence case, a propensity warning will be called for[22] but there is no universal or inflexible principle requiring one.[23]  In this case a propensity warning was not appropriate.  It is highly improbable that the jury may have reasoned that because the accused behaved as [C] asserted, he was the sort of person who was likely to have done the acts complained of by [A] and [B].  Nor, in my view, was it necessary to give a warning about "probability" reasoning: that is, a warning to the effect that "common assumptions about improbability of sequences are often wrong".[24]

[62]  The purpose of directions in relation to the use of similar facts and propensity reasoning is to ensure a fair trial by guarding against the possibility that the jury will engage in impermissible reasoning, succumb to prejudices, act intuitively but erroneously, or fail to have regard to relevant considerations.  Any such directions must be related to the facts[25] and be given only if appropriate.  As McHugh J observed in KRM v The Queen:[26]

"To give the warning when it is not needed may divert the jury from its proper task.  The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings.  Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge."

[63]  In this case, encumbering the jury with a warning about the dangers of probability reasoning, apart from being inappropriate, may have served to convert a commonplace exercise of evaluating the individual and overall strengths and weaknesses of the complainants' observations of a man in the surf and his conduct into something more abstract.

[64]  This ground of appeal has not been made out either.

The verdict of the jury was unreasonable

[65]  No oral submissions were advanced in support of this ground.  It lacks merit.  The identification evidence of [A] and [B] without more, would have entitled a jury, acting reasonably, to conclude that the appellant was their assailant.  The prosecution case was very strong.  [A] and [B's] evidence was that their assailant was a tall, hairy-backed man with a distinct South African accent and a misshapen nose.  That man, the appellant, was seen deliberately swimming into women very shortly after the attacks on [A], [B] and [C].

[66]  Even the evidence of the colour of the appellant's togs was strong.  The appellant's friend recalled them being olivey-green with a light stripe down the sides.  But [A], [B] and [C] all recalled dark or navy blue togs with a yellow stripe.  The jury were entitled to prefer the evidence of [A], [B] and [C] over that of the appellant's friend.

[67]  It was submitted that "nothing can be done to eliminate the possibility that the identification was the result of cross-contamination by a group confirmation" and that there "must be a reasonable possibility that [A] and [B] were mistaken on an issue about which they were quite dogmatic – the identity of the Toyota driver".

[68]  The primary judge gave ample and clear directions concerning these risks.  But the risk of cross-contamination was more theoretical than real.  [A's] evidence was that she made her identification of the appellant to Mr Thornton before [B] joined them.  She then swam out with the junior lifesaver to near the man she identified and again had the opportunity of seeing at close range whether the person identified to MrThornton was the person who had molested her.  It was [A] who had noticed the appellant's strong accent.

[69]  In cross-examination [B] conceded that she had given evidence in the committal hearing to the effect that she and [A] approached Mr Thornton at about the same time and that they were then pointing out their assailant to Mr Thornton.  Even if the evidence of [A] and [B] or either of them had become a little unclear as to the precise sequence of events, the jury was quite entitled to accept that both women, having seen the same assailant at close quarters only minutes before, were capable of making an accurate identification.

[70]  Both [A] and [B] followed the appellant to the car.  There is no issue about the accuracy of their identification of the car or of the fact that the appellant was in it when it drove off.  The jury were entitled to prefer the evidence of [A] and [B] as to the identity of the driver over that of the appellant's friend or the jury could have concluded, quite reasonably, that [A] and [B] were mistaken on a matter of little materiality.

[71]  In my view the prosecution case was strong and "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".[27]

Conclusion

[72]  For the above reasons, I would order that the appeal be dismissed.

FRASER JA: 

[73] I agree with the reasons of Muir JA and with the order his Honour proposes.