R v Thomson[2022] QCA 36

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Morrison JA.
2. [2]
   MORRISON JA:  The appellant was convicted after a trial on seven offences of sexual assault involving two female complainants.
3. [3]
   The first seven counts on the indictment concerned COM, a girl aged between 10 and 12.  The eighth count concerned VIC, a 16 year-old girl.
4. [4]
   Prior to the trial, an application was brought under s 597A(1) of the Criminal Code (Qld), seeking an order for a separate trial on count 8 of the indictment, that involving VIC.  That application was dismissed.  That judge noting:

“With respect, particularly in the context of the remarkable bookending of counts 1 and 8, this sequence of behaviours, predating on young girls made available to the defendant firstly by their friendship with his daughter (count 1), then co-residence in his house (counts 2-7), then again in respect of a friendship between the complainant [VIC] and his daughter (count 8), is “strikingly similar” and leaves no reasonable inference consistent with innocence. Further, it makes it improbable that each complainant is giving an incredible account.”

5. [5]
   During the course of the summing up, the learned trial judge referred to the complainants as “vulnerable children” which was then identified in this way: (i) as to COM, she was from a socially disadvantaged household and vulnerable in the sense that she was living under the appellant’s roof; and (ii) as for VIC, she “had plainly psychological issues that rendered her arguably vulnerable”.  Then, having told the jury that those were matters to be considered based on the evidence that was before them, the trial judge: “And it follows by reason of the vulnerability that they may have been open to the Defendant’s entreatment. Both girls were pubescent”.
6. [6]
   The appellant challenges the verdicts on all counts, on two grounds:

   1. (a)
      that there was an error in not severing the indictment at the hearing of the s 590AA application; and
   2. (b)
      the learned trial judge erred in his directions to the jury about the similarities between the two complainants as part of his direction on the similar fact.

Circumstances of the offending

7. [7]
   In order to properly consider each of the grounds, it is necessary to set out the essential facts of the offending on each count.  In doing so, the counts can be identified in the following way:

   1. (a)
      Count 1 (COM) - indecent treatment of a child under 16, and under 12;
   2. (b)
      Count 2 (COM) - maintaining a sexual relationship with a child;
   3. (c)
      Count 3 (COM) - rape;
   4. (d)
      Counts 4-6 (COM) - indecent treatment of a child under 16;
   5. (e)
      Count 7 (COM) - attempted indecent treatment of a child under 16; and
   6. (f)
      Count 8 (VIC) - sexual assault.

Background

8. [8]
   The appellant was aged between 33 and 36 at the time of offending.  During the offending period, he lived with his wife and five children.
9. [9]
   In 2015, COM’s family moved to the town in which the appellant lived.  Shortly after starting school, COM and one of the appellant’s daughters became friends, and COM began sleeping over at the appellant’s house.  About 18 months later, COM’s family had to move out of their house and, as a result, the family moved into the appellant’s house.
10. [10]
    COM was 10 to 12 years old at the time of the offending.
11. [11]
    In 2013, VIC became friends with another of the appellant’s daughters.  VIC was aged 16 at the time of count 8.

Count 1 – indecent treatment

12. [12]
    Between 31 January 2015 and 1 March 2015, COM attended the appellant’s house for a sleepover with her friend, the appellant’s daughter.  Whilst COM was in the shower, the appellant attempted to open the closed bathroom door.  COM subsequently locked the door and placed a heavy basket in front of it to stop anyone from entering.
13. [13]
    When COM got out of the shower, she wrapped herself in a towel and proceeded to get dressed.  Her friend was also in the bathroom at this time, although she was mostly dressed.  The appellant entered the bathroom and began tickling COM, and touched her breasts and vagina.^[1]  COM told the appellant to stop and pushed him away.  The appellant did not desist and told COM that he was tickling her.
14. [14]
    One of the appellant’s older daughters walked past the bathroom and told the appellant to stop as COM was trying to get dressed.  The appellant did not cease until other occupants of the house began to walk past.

Count 2 – maintaining a sexual relationship with a child

15. [15]
    Between 31 August 2016 and 16 August 2017, the appellant sexually offended against COM on a regular basis.  Whilst COM could not recall the first time something happened, she stated that since they had moved into his house the appellant would come into her room practically every day at times when her mother was not there, and touch her in inappropriate places.
16. [16]
    As an example of the frequency, COM estimated that the offending occurred almost every day, and on some occasions more than once a day.  COM was unable to particularise each occasion, but stated that it involved one or more of the following actions:

    1. (a)
       intentionally walking in on her while she was in the shower;
    2. (b)
       attempting to touch her breasts;
    3. (c)
       placing his hand on her thigh and moving it towards her vagina;
    4. (d)
       placing his hands down her shorts and underwear;
    5. (e)
       touching or rubbing her vagina;
    6. (f)
       digitally penetrating her vagina; and
    7. (g)
       exposing his penis to her.
17. [17]
    The offending usually occurred while COM was lying in bed or watching television.  When asked how many times the appellant had placed his hand down her underwear, COM responded, “too many to count”.
18. [18]
    During the course of the offending, the appellant told COM it was okay to be touched, that there was nothing wrong with it, and that there was no need to be scared.  Despite this, the appellant told her not to tell anyone.
19. [19]
    Counts 3 to 7 were the particulars of the maintaining under count 2.

Count 3 – rape

20. [20]
    One morning COM was lying in bed watching television when the appellant entered her room.  COM turned around in the hope that the appellant would leave, however when she turned back the appellant greeted her, “Good morning”.
21. [21]
    COM asked the appellant if he could move so she could watch television.  The appellant approached her and placed his hand on her upper right thigh.  He rubbed her thigh for a couple of seconds, then moved his hand towards her vagina.  The appellant lifted her shorts and underwear and inserted his fingers into her vagina, and quickly moved his hand back and forth.^[2]  This caused her a degree of pain and she told the appellant to stop.  The appellant replied, “let me do it, let me keep going”, and moved his hand more quickly, penetrating her vagina.  COM attempted to roll onto her stomach and eventually pushed the appellant’s hand away and left the room.
22. [22]
    Approximately half an hour later, COM went to the toilet and observed blood on her underwear.

Count 4 – indecent treatment

23. [23]
    One evening COM was in the lounge room watching a movie.  At this time, she was seated on a camping chair while the appellant was seated on the couch.
24. [24]
    Sometime later, the appellant’s wife left the house to pick up one of the daughters from work.  Approximately five minutes later, the remaining members of COM’s family went to bed, and COM’s mother reminded her to go to bed as she had school the following day.  COM agreed and got a drink, then returned to where she had been seated in the lounge room to check her phone.
25. [25]
    The appellant moved closer to COM, touched her arm and began talking to her about the movie they were watching.  He touched her leg and placed his left hand on her vagina over her shorts.  The appellant rubbed her vagina using the top of his fingers.^[3]  He said words to the effect of, “it’s okay, you can let this happen. It’s nothing, there’s nothing wrong with  it … there’s no need to be scared”.  The appellant rubbed her vagina for approximately 10 minutes.  The appellant only ceased when he observed his wife’s car approach the house.  As his wife and daughter entered the room, COM stood up and went to bed.

Count 5 – indecent treatment

26. [26]
    COM was lying in bed watching a movie and texting a friend, when the appellant entered the room and asked what she was doing.  She told the appellant that she was texting a friend and he asked her what they were talking about.  COM told the appellant it was just normal conversation and turned the opposite way.
27. [27]
    The appellant placed his hands up the leg of her shorts and underwear, rubbed her vagina and attempted to insert his fingers into her vagina.^[4]  COM asked the appellant what he was doing and he told her, “just leave it”.  She told the appellant to get his hands out of her pants and the appellant responded, “no, just leave it”.  She pushed the appellant’s hand away but he persisted.  COM continued to push the appellant’s hand away and told him to stop, and he eventually left the room.

Count 6 – indecent treatment

28. [28]
    COM was lying in bed when the appellant entered the room.  The appellant approached her and attempted to grab her breast.  She pushed him away and he immediately left the room.
29. [29]
    Later that same day, while COM was playing Xbox, the appellant entered the room and sat next to her.  He placed his hand at the top of her thigh and moved his hand towards her vagina.  The appellant did this approximately two or three times before she told him to stop, and the appellant walked away.
30. [30]
    That evening, COM was lying in bed watching a movie while her sister was asleep.  The appellant entered the room and asked what she was doing.  COM told him she was just playing on her phone and edged closer to the window in an attempt to distance herself from the appellant.  The appellant placed his hand up the leg of her shorts, under her underwear and attempted to rub her vagina.^[5]  She told the appellant to stop and pushed his hand out of her pants.  The appellant placated her and told her that it was okay to be touched.  At that moment, COM’s mother arrived home and the appellant walked out of the room, closing the door.

Count 7 – attempted indecent treatment

31. [31]
    On the morning of 15 August 2017, COM was asleep in bed when the appellant entered the room, placed his hand on her hip, and asked if she was getting up.  At this time she was lying on her stomach.  The appellant attempted to move his hand down the front of her shorts and underwear towards her vagina.^[6]  COM moved and pushed the appellant away, then wrapped herself in the blanket in an attempt to stop the appellant.  As someone walked past, the appellant removed his hand and left the room.

Count 8 – sexual assault concerning VIC

32. [32]
    On about 16 October 2016, Vic was at her boyfriend’s house. With her was one of the appellant’s daughters,^[7] who was her friend.  It was a short distance from where the appellant lived.
33. [33]
    VIC and the appellant’s daughter walked to the appellant’s house so that the daughter could get some money to go to McDonalds.  The two went into the daughter’s bedroom and VIC put her mobile phone on charge.  The daughter left the room and stood outside the door, asking her mother for some money.
34. [34]
    The appellant came into the bedroom and sat on VIC’s right hand side.  The appellant placed his hand on her inner thigh.  According to a text sent by VIC to COM’s mother the next day,^[8] the appellant commented on how chubby she was, a comment apparently directed at her “belly rolls” (sic), which he touched.^[9]
35. [35]
    The appellant moved his hand up her thigh, between her legs and towards her groin area.  The appellant left his hand in this position for approximately one second before he placed his hands under her underwear and touched her vagina.^[10]
36. [36]
    VIC moved away from the appellant, unplugged her phone and left the room.  She told her friend that she needed to go, and the two left the house and walked to McDonald’s.  Following this, the daughter returned home and VIC returned to her boyfriend’s house, where she told both the boyfriend and his mother what had occurred.  The following day she also informed her own mother and father.
37. [37]
    Later the police attended VIC’s address and left a card for her to contact police.  She subsequently contacted police and provided a statement.

Count 8 in the chronology of offences

38. [38]
    In considering the issues in this appeal, it is important, in my view, to recall where count 8 fell in terms of the chronology of offences.  This is because there was a tendency in some of the arguments before this Court to treat count 8 as though it was at the end of the offending, when it was not.  Further, it is relevant because the cross-admissibility of evidence when indictments are joined can be directed at a number of things including coincidence (whether the complainants are likely to be telling the truth), or tendency (whether committing one offence suggests it is likely the offender would commit the other offence).
39. [39]
    Count 1 occurred in February 2015.  Then COM moved into the appellant’s house in September 2016.  The maintaining period for count 2 commenced 31 August 2016 and continued until 16 August 2017.  Thus, the first month in the period of count 2 was the month of September 2016.  COM’s evidence was that once her family moved in, the appellant offended against her practically every day, at times when her mother was not there.  Two features of her evidence about that offending were that it usually occurred when she was lying in bed or watching television, and during the course of the offending the appellant told her reassuring things to the effect that it was okay to be touched and there was nothing wrong with it.
40. [40]
    Count 8 occurred on 16 October 2016.  Thus, it occurred between six to seven weeks into the maintaining period.
41. [41]
    Count 3 (rape) fell in a period following 31 March 2017, count 4 in a period after 31 May 2017, and counts 6 and 7 in August 2017.
42. [42]
    Thus, it can be seen that count 8 occurred before the specific charged acts which were relied on as particulars of the maintaining.  However, it occurred six to seven weeks into the period where, according to COM’s evidence, she was being offended against on a daily basis.
43. [43]
    It is also necessary to note COM’s age at the time of the offences, interpolating count 8 in its correct chronological sequence:

    1. (a)
       count 1 – 10 years and three months;
    2. (b)
       count 2 – between 11 years and nine months and 12 years and nine months;
    3. (c)
       count 8 – 11 years and 11 months;
    4. (d)
       count 3 – 12 years and between four and nine months;
    5. (e)
       count 4 – 12 years and between six and nine months;
    6. (f)
       count 6 – 12 years and nine months; and
    7. (g)
       count 7 – 12 years and nine months.
44. [44]
    Thus, what the chronology shows is that COM was 11 years and 10 months old when she moved into the appellant’s house and offending commenced on a daily basis.  Within a period of weeks from when she moved into the house, the appellant committed the offence the subject of count 8 in respect of VIC.  After that occurred, he continued to sexually assault COM by acts that were not charged and then committed the specific acts in counts 3 to 7 over the next five months.
45. [45]
    The chronology also shows that at the time count 8 was committed, COM was nearly 12 years old and VIC was 16.
46. [46]
    The correct characterisation of where count 8 falls to be considered is, therefore, expressed this way: the appellant committed sexual offences against COM between when she was 10 years and three months and nearly 12 years old, committed count 8 on a 16 year-old girl, and then continued to offend against COM when she was between 12 years and four months and 12 years and nine months old.

Vulnerability of the complainants

47. [47]
    In the Prosecutor’s address, the jury were urged to conclude that each of the complainants was a vulnerable person.  Thus, it was said:

    1. (a)
       in relation to COM, that she was a “vulnerable child”, and “vulnerable to the defendant because he was a man putting a roof over her family’s head.  Exposing him meant exposing her family to being kicked out, of having nowhere to live”;^[11]
    2. (b)
       in relation to COM, that her family had been forced out of their living arrangements, the appellant was letting them live at their house, and “She was just a vulnerable kid”;^[12]
    3. (c)
       that COM was scared about what would happen if she came forward and complained earlier;
    4. (d)
       there was a genuine fear held by COM and it was only after they had planned to move out that she came forward and complained;^[13] and
    5. (e)
       as to VIC, her “mental health struggles” meant that she “was a vulnerable person, a vulnerable person targeted by the defendant”.^[14]
48. [48]
    Thus, it was part of the Crown’s case that each of the complainants was a vulnerable person, COM because of the dislocation caused by having to live in the appellant’s house with nowhere else to go, and VIC because of her mental health struggles.  As to VIC, it is important to note that the Prosecutor’s case was that the mental health struggles had an impact which was not confined to credibility and reliability, but those difficulties rendered her vulnerable to the sexual assault by the appellant.
49. [49]
    That proposition having been raised by the Prosecutor, defence Counsel made no attempt to refute it.  Rather, the defence case was that COM and VIC were unmitigated liars.  On no less than six occasions, defence Counsel said so in respect of COM, using phrases such as “she is patently lying”,^[15] “the girl’s lying”,^[16] “She’s lying. Plain and simple”,^[17] and “she’s lying. She’s telling others to perpetuate the lie … she’s lying”.^[18]
50. [50]
    As to VIC, defence Counsel told the jury that she was also a liar.^[19]
51. [51]
    It is not surprising that the defence Counsel did not engage with that part of the prosecution case which urged that both complainants were vulnerable in separate ways.  To do so would have detracted from the simple case that was being run, namely that both complainants had lied about the events.

Ground 1 – cross admissibility

52. [52]
    The principles governing the resolution of the issue raised on this ground of appeal, concerning the cross admissibility of the evidence of the offences against COM and the offences against VIC, were recently examined in R v McNeish^[20] and R v WBN.^[21]  From those judgments a number of points emerge.
53. [53]
    The relationship between the contested evidence and the issue to which it is directed may take many forms and the relationship cannot be confined to “striking similarity”.^[22]  It would also be a mistake to draw up a closed list of the sorts of cases in which the principle operates.  Labels and definitive descriptions, whilst useful, are neither comprehensive nor restrictive.^[23]
54. [54]
    McNeish identified the various purposes for which evidence of this kind might be led:^[24]

1. “1.To remove the implausibility that might otherwise be attributed to the complainant’s account of the offence if the offending were thought to be an isolated incident; (sometimes called “relationship evidence”).
2. 2.To demonstrate the sexual attraction felt by the accused so as to show a motive to commit the offence; (“motivation evidence” and sometimes also called “relationship evidence”).
3. 3.To demonstrate that the accused not only had a motive to commit the offence but that he was a person who was prepared to act on his motivation to commit the charged offence because he had committed similar offences against the complainant or others previously. (sometimes called “tendency” or “propensity” evidence)
4. 4.To identify the offender, as in Pfennig itself.”

55. [55]
    The first three categories in that list are cases in which the evidence is led to supplement other evidence that an offence has been committed by the accused.  That is the case here.
56. [56]
    In WBN this Court noted that the basis for admission of such evidence, where it is to show the improbability of witnesses giving accounts of events with the requisite similarity unless the events occurred is derived from Hoch v The Queen.^[25]  Fraser and McMurdo JJA said:^[26]

“[5] In Hoch, Mason CJ, Wilson and Gaudron JJ identified two ways in which similar fact evidence can be used. The first was later exemplified in Pfennig. The second was exemplified by Hoch itself. Mason CJ, Wilson and Gaudron JJ said:

“Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.

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, 749, 751 and 758]) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman, per Lord Hailsham [1975] AC 421), 452 and Lord Cross  [[1975] AC 421, 458]; Sutton [(1984) 152 CLR 528], per Deane J [556–557]. 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 421, 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 531, 540]; Boardman [[1975] AC 421, 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.”

57. [57]
    In McNeish, there was an explanation of the categories which is relevant to the present consideration.  The majority said:^[27]

“The first of these purposes might be thought to be associated with the complainant’s credibility. However, evidence cannot be led by a party merely to bolster the credit of a witness called by the party unless certain preconditions have been satisfied. The reason such evidence is admitted is that an allegation by a child only about an isolated sexual assault by an adult is not the same as an allegation about an assault that is just one instance of a longer series of assaults or that is an assault that has been committed after the adult has, by some other conduct, evidenced a sexual desire for the child. Such evidence is admitted because the interests of justice require that the jury be able to understand the Crown case by seeing the case in its true factual context and not within an unrealistically truncated form. If such evidence were to be excluded, the jury would be denied the real factual basis upon which to understand aspects of the case that the complainant’s and the accused’s actual history might explain, such as the existence in the appellant of peculiar sexual urges that are not shared by most of the population, the possible reasons for a complainant’s particular reactions or lack of reactions, the explanation for a complainant’s failure or delay in complaining or for an offender’s apparent risk taking and brazenness in offending. The evidence is relevant simply because, if it is believed, the facts proved by that evidence render the commission of the charged offence more probable.”

58. [58]
    That is one of the bases upon which the Crown sought to adduce the evidence of COM in the case against VIC, and vice versa.
59. [59]
    The second of the possible purposes, to demonstrate sexual attraction by the accused, was illuminated in the following passage:^[28]

“The second of these possible purposes is no different in principle from any case in which the prosecution leads evidence of motive as a circumstance to strengthen its case. Motive has always been relevant as a circumstance to make a fact in issue more probable. Motive is usually constituted by facts that prove an accused’s disposition to commit a particular crime, such as the murder of a spouse. In cases involving sexual offences against children a more accurate term than “motive” might be “urge” or “desire”. Many motives in circumstantial cases are really constituted by emotional urges rather than by well-considered reasons, whether the motive is greed or lust or something else of that kind…”

60. [60]
    The third of the purposes, namely tendency or propensity evidence to demonstrate that an accused was prepared to act on his motivation, was briefly illuminated in McNeish:^[29]

“The third of these purposes is to render the commission of the offence more probable because the evidence of uncharged acts shows not only that the accused has the particular sexual urges but that he is prepared to satisfy them by action.”

61. [61]
    That, too, is a basis upon which the Crown sought to adduce the evidence of COM in VIC’s case, and vice versa.
62. [62]
    Admission of similar fact evidence for that purpose was noted in WBN:^[30]

“The common law allows, in an exceptional case, evidence to be admitted although it is relevant only because it demonstrates a relevant propensity or tendency of the accused. Evidence of the accused’s propensity may be admitted if it has a specific connexion with the commission of the offence charged, and there is no reasonable view of the propensity evidence which is consistent with the accused’s innocence.”

63. [63]
    Whatever what might be the purpose of leading the evidence, before it is admitted it must satisfy the “Pfennig test”.^[31]  That is, to be admissible for such evidence has to possess a high degree of cogency to overcome its prejudicial effect.^[32]  In this context, “prejudicial effect” refers to the possible adverse effect that such evidence might have upon a jury beyond its true probative force.^[33]
64. [64]
    WBN explained the basis upon which the Pfennig test was to be applied:^[34]

“[16] In the application of the Pfennig test, similar fact evidence must be assessed in the context of the prosecution case on the charge for which the evidence is sought to be tendered, and the test must be applied on certain assumptions. It must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case on the count in question, apart from the similar fact evidence, may be accepted by the jury.

[17] The test requires the similar fact evidence to be excluded if viewed in that context and with those assumptions, “there is a reasonable view of the similar fact evidence which is consistent with innocence”. Put another way, “the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.”

65. [65]
    In HML v The Queen,^[35] Hayne J explained that the relevant question to be asked when applying the test is whether there is a rational view of the evidence which is consistent with the innocence of the accused.
66. [66]
    As was pointed out in McNeish:^[36]

“When the Pfennig test is applied to evidence that the accused has committed uncharged sexual offences against a single complainant, the test will usually, if not invariably, be satisfied because there can be no rational explanation for the accused’s uncharged acts, which for this purpose the judge must assume the jury will accept happened, other than guilt. In short, their tendency as proof, if accepted, is unequivocal.”

67. [67]
    McNeish went on to contrast that situation with cases where the uncharged acts are against a person other than the complainant:^[37]

“[39] In cases about uncharged acts against persons other than the complainant the position is different. In multiple complainant cases the evidence must have “a really material bearing on the issues to be decided” or have a “sufficient nexus” with the evidence on the charged offence. As the Court put it in Bauer, the logic of probability reasoning dictates that there must ordinarily be some feature that links the two sets of evidence together. This is because usually the fact that an accused has committed an offence against A proves nothing about whether the accused committed the same offence against B.

[40] However, in sexual offence cases, it is not necessary that the particular acts that constitute the uncharged offences and the particular acts that constitute the charged offence be of the same kind. Evidence of uncharged sexual offences may be relevant and highly cogent even if the acts that constitute those offences are different from the charged offence.”

Crown case at first instance – severance

68. [68]
    On the application to sever the indictment, the Crown advanced these points:^[38]

    1. (a)
       central to the issue of whether or not the appellant committed the offences was the question “of whether or not the modus operandi of the two sets of alleged offences is so similar that the complaints of the two alleged victims made independently of each other must be true”; and
    2. (b)
       the interim issue was the credibility of the two complainants and “the evidence of each would increase the credibility of each and make it more likely that each is giving a truthful account and would highlight the improbability of any other innocent explanation”;
    3. (c)
       relying upon McNeish, that it was not necessary that the particular acts that constitute the uncharged offences and the particular acts that constitute the charged offence be of the same kind;^[39]
    4. (d)
       relying on Hughes v The Queen,^[40] that the inclination on the part of an adult to engage in sexual conduct with underage girls, coupled with his willingness to act upon that inclination, was itself an unusual disposition according to ordinary human experience;^[41]
    5. (e)
       relying on McNeish, the significant probative value of the similar fact evidence so enhanced the collective force of the relevant prosecution evidence as to leave no reasonable view of the similar fact evidence consistent with innocence;^[42]
    6. (f)
       that if the evidence of each complainant was heard together, the evidence of each showed that the other’s story was not improbable;^[43]
    7. (g)
       that whilst there were differences and level of compliance of the complainant, the conduct of the appellant was factually similar; this was not a case where the appellant had behaved in an unremarkable way, consistent with his age and gender;^[44]
    8. (h)
       the underlying unity of the offending was such that the appellant was confident to continue offending in the particular way that he did, against female children within his home, without fear of exposure;^[45]
    9. (i)
       the evidence of each complainant was cross-admissible, and without the evidence of the other, the account given by each girl may be thought to be improbable, in that it would be unacceptably risky to engage in such conduct in the close proximity of other people;^[46]
    10. (j)
        the evidence of the other complainant in each case makes its improbable that each of the complainants is giving an incredible account.^[47]
69. [69]
    It is thus evident that the Crown case for not severing the indictment relied on purposes 1 and 3 in McNeish.
70. [70]
    Therefore, the case urged by the Crown was that the evidence should be admitted because it was in the interests of justice that the jury see the case in its true factual context, the evidence being relevant, because it was believed the facts proved by that evidence rendered the commission of the charged offence more probable.  Further, the evidence was cross-admissible because the evidence of one in the case of the other rendered the commission of the other offence more probable in that the appellant had a particular urge that he was prepared to satisfy by action.

Consideration

71. [71]
    As was noted in McNeish, the High Court in Hughes v The Queen^[48] rejected the need to prove a tendency to show acts that were closely similar to the acts constituting the charged offence.^[49]  The approach in Hughes was summarised thus:^[50]

“[46] In Hughes itself, the majority regarded an inclination on the part of an adult to engage in sexual conduct with underage girls, coupled with his willingness to act upon that inclination, as itself an unusual disposition according to ordinary human experience. These unusual sexual interactions with children were pursued by the appellant in circumstances involving a substantial risk of discovery and his “disinhibited disregard of the risk” was itself an unusual feature proved by the evidence. The evidence may not have revealed a strict pattern of conduct because the appellant’s acts were opportunistic. However, that did not mean that the evidence was inadmissible. The force of the evidence was that it rendered each complainant’s account of misconduct by the appellant less liable to be rejected as unworthy of belief as an isolated incident. Consequently, the differences in the evidence on one count, which involved the appellant encouraging a 15 year old complainant to commit acts of indecency in a park and in a driveway, and the evidence concerning another complainant, which involved intrusive sexual acts in a darkened bedroom, in the complainant’s bed and when the complainant was aged six, seven or eight, did not matter. The probative value of the evidence lay in proof of the appellant’s tendency to act on the sexual attraction he felt towards underage girls, notwithstanding the risks of discovery. The fact that he acted out his sexual interest in a variety of different ways did not deprive the proof of its significant probative effect.”

72. [72]
    In my view that passage is applicable here.
73. [73]
    There are four factors to consider:^[51]

    1. (a)
       first, what is the factual issue that the Crown seeks to prove by the evidence; in Hughes, as here, it was that the appellant had a particular tendency to have a sexual interest in young girls and to engage in sexual activities with them using his familial relationships to obtain access to them;
    2. (b)
       second, whether the evidence, if accepted, would prove that tendency;
    3. (c)
       third, whether the evidence of the other acts, if accepted, contains some feature which links the doing of the one set of charged acts with the other set of charged offence by reference to a particular issue in the case, whether that is identity, the issue of the commission of the offence or some other issue; that feature may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true; and
    4. (d)
       fourth, it is necessary to consider whether the probative force of the evidence, upon the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect.
74. [74]
    There are two other factors.^[52]  The evidence does not have to be so strong that it demonstrates guilt on its own.  The evidence must be excluded if there is a reasonable view of it that is consistent with innocence.
75. [75]
    Application of the Pfennig test was explained in Phillips:^[53]

“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.”

76. [76]
    Though “striking similarity” is not a necessary condition for admissibility, nonetheless it is a feature that is often seen as giving rise to consideration of cross-admissibility.  However, courts have noted that a material factor is what the evidence shows regarding issues such as implausibility^[54] and tendency or propensity.^[55]
77. [77]
    Further, this Court has referred to the alleged conduct in terms of whether it can be viewed as remarkable for innocent persons.  In R v Watson,^[56] the accused was a teacher who offended against his pupils.  This Court rejected the argument that the indictment should have been severed on the basis of an “unremarkable” pattern of behaviour.  The Court said:^[57]

“It may be true that primary school teachers who prey sexually on their own pupils will often exhibit the same patterns of behaviour as were alleged against the appellant. But that is not to say that such patterns, because they are normally exhibited by such offenders, thereby become ‘entirely unremarkable’. On the contrary, evidence of such behaviour is admissible precisely because such behaviour, while it might be normal for such offenders, is remarkable for innocent people.”

78. [78]
    It is necessary to return to the chronology of offences.  First in time was count 1 which occurred when COM was 10 years and three months.  The offending was in the appellant’s home and against a friend of his daughter.  As with all other counts, the defence case did not include any prospect that touching was accidental or inadvertent.  The touching occurred in the presence of the appellant’s daughter and was seen by one of his elder daughters.  The appellant only ceased when other occupants of the house began to walk past.
79. [79]
    Count 2, the maintaining charge, encompassed a period which commenced next in time, on 31 August 2016.  The offending referred to by way of uncharged acts occurred in COM’s bedroom, and therefore in the appellant’s house.  It consisted of touching with the appellant’s hands.  Most of the touching involved the placing of a hand on the thigh, moving it towards her vagina, inside her shorts and underwear, rubbing the vagina or on occasions penetrating the vagina.^[58]  The offending was accompanied by the appellant reassuring COM that there was nothing wrong with what was being done and no need to be scared.
80. [80]
    Next in time was count 8, involving VIC.  That offending was against a friend of his daughter,^[59] in a bedroom in his house, while others were in the vicinity though not in the room, involved putting his hands on her inner thigh, moving his hands under her underwear and touching the top of her vagina.  In a message shortly after, VIC said that the offending conduct was preceded by the appellant talking to VIC and his daughter about “how chubby I was” and that the appellant started “touching my belly rolls”.^[60]  It was when the daughter walked out of the room that the appellant “did it again and was touching my rolls and moved his hand down”.
81. [81]
    Next in time was count 3, the charge of rape.  That occurred more than five months after count 8.  Once again, the offending was against the friend of one of his daughters in her bedroom and therefore in his house, and again involved placing his hand on her upper right thigh, rubbing the thigh and moving his hand towards her vagina.  This time the offending went further and involved penetration.  The appellant urged COM to permit it happening or to continue.
82. [82]
    Next in time was count 4.  This offending occurred in the appellant’s house, although not in a bedroom, was against a friend of his daughter and involved touching COM’s leg and placing his hand on her vagina over her shorts, then rubbing her vagina with the top of his fingers.  Once again, the appellant said things to COM to reassure her that what was happening was okay, and there was nothing wrong with it.  Once again, the offending occurred while there were others in the house including COM’s mother.
83. [83]
    Next in time was count 5.  Once again, the offending was in COM’s bedroom, and in the appellant’s house, and against a friend of his daughter.  Again, it involved placing a hand on COM’s leg, running his hand inside the shorts and underwear, rubbing the vagina and attempting to insert his fingers.  Once again, the appellant urged COM to let it continue.
84. [84]
    Count 6 was next in time.  Once again, the offending was against a friend of his daughter, in the appellant’s home, in her room and again placing his hand on her leg, up the shorts and under the underwear, and attempting to rub her vagina.  Once again, the appellant said things to reassure COM that it was okay to be touched.
85. [85]
    Count 7 was the last involving COM.  Once again, the offending was against a friend of his daughter, in her room and therefore in his house, and involved an attempt to move his hand down the front of the complainant’s short and underwear towards her vagina.  Once again, occurred while others were around, as it ceased when someone walked past.

Modus operandi – probability of other offences – improbability of innocent explanation

86. [86]
    The factors enumerated above show, in my view, that there is a striking similarity between the offences committed against COM and offence committed against VIC.  In each case:

    1. (a)
       the offence was against an underage girl;
    2. (b)
       it occurred in the appellant’s house;
    3. (c)
       it mostly occurred in a bedroom;
    4. (d)
       the victim was a friend of one of his daughters;
    5. (e)
       the type of offending had a great degree of similarity, involving non-penetrative placing of hands on the thigh, under the underwear and touching the vagina; and
    6. (f)
       it took place while others were in the house or in close proximity.
87. [87]
    More importantly, that also shows that the alleged conduct was “remarkable for innocent people”.  As will be discussed shortly, there was nothing advanced at the trial, by evidence or submission, to suggest that the appellant had any reason to think VIC might consent to being touched, nor that he held any such belief or hope.  On the evidence of COM he had already offended against her on a repeated basis by the time he offended against VIC, and in a brazen, risk-taking way.
88. [88]
    The sequence of offences is once again important in characterising whether the evidence of one affects the other in the way outlined in McNeish.  When count 8 occurred it was some six to seven weeks after the commencement of the period the subject of the maintaining count, namely after COM’s family had moved into the appellant’s house.  Having already offended in respect of count 1 a year earlier, the appellant embarked upon a series of sexual assaults the subject of uncharged acts.  For the most part, the offending was of a similar kind to that the subject of count 8, namely touching on the thigh, under the underwear and moving towards and touching the vagina.  By the time count 8 occurred, the appellant, according to COM’s evidence, had been committing these sorts of offences against her on a daily basis.^[61]
89. [89]
    In my view, the fact that the appellant was prepared to offend against a female child whilst in his house, notwithstanding the presence of others in the house, lends weight to the probability that he did offend in an opportunistic way against VIC.
90. [90]
    If one poses the question this way, the answer becomes clearer.  If the appellant was prepared to offend against an underage girl who happened to be in his house, by touching her whilst she was in one of the bedrooms of the house, and brazenly so because there were other people in the house, does that suggest an increased probability that the appellant might offend opportunistically against a slightly older, but still underage, girl in his house and in one of the bedrooms?  In my view, the answer must be yes.
91. [91]
    Further, having offended against VIC and there being no repercussions, the appellant continued to offend against COM.  Notwithstanding the age differential, noting the fact that he offended opportunistically against VIC, in circumstances quite similar to his offending against COM, does that evidence tend to affect the probability of the continued offending against COM?  In my view, the answer must be yes.  And, that was precisely the way the evidence of count 8 was used in the prosecutor’s address.^[62]
92. [92]
    Bearing in mind the sequence of count 8 in the chronology of offending, the evidence of the offending against COM also increases the improbability of VIC’s account being an implausible lie.  The same is the case in respect of the evidence of the offence against VIC, as concerns COM’s credibility.
93. [93]
    Paragraph 26 of the appellant’s outline was in these terms:

“It is respectfully submitted that the complainant [VIC’s] evidence could not properly have dispelled the jury’s doubts on the counts involving [COM]. In the context of the prosecution case, on the counts involving [COM], [VIC’s] evidence was capable of a rational view consistent with the innocence of the appellant. It was open to reason that it was one thing to conclude that the appellant had indecently assaulted a sixteen year old girl on one occasion when she was visiting his house, but another to conclude from that that he had over a long period of time engaged in diverse and frequent sexual acts against a much younger girl living in his home.”

94. [94]
    During the course of the hearing in this Court Counsel for the appellant adopted a reformulation of the proposition made in paragraph 26 of the outline, in these terms:^[63]

    1. (a)
       VIC was a 16 year-old girl;
    2. (b)
       if the appellant made a sexual overture to a 16 year-old girl to whom he was attracted, she could well have accepted it, in which case it would not be unlawful;
    3. (c)
       by contrast the appellant’s conduct against COM could be said to be that of a predator, against a 10 year-old girl over a period of time;
    4. (d)
       in substance the two offences are completely different, because one (in respect of VIC) is something a lot of men might do and the other (against COM) is paedophilia;
    5. (e)
       if the appellant made a sexual overture to somebody who is capable of consenting that cannot help decide if the appellant has committed offences that are the offences of a paedophile, because that was not the nature of the offence against VIC; and
    6. (f)
       the converse is also the same, i.e. that one is a perversion (in respect of COM) and the other one (against VIC) is not.
95. [95]
    In my respectful view, the suggested distinction is misconceived.  A person falls into the suggested category for the offences against VIC (that she was capable of giving consent makes that offence substantively different) just by turning 16.  Up to that point consent cannot be given.  So, if VIC was 15 years and 11 months old the basis for the suggested difference would not exist.
96. [96]
    Just as consent could not be given by VIC if she was 15 years 11 months old, so too COM could not, even when she was over 12.  COM was born on 7 November 2004.  Therefore she was over 12 on 8 November 2016, 10 weeks into the period of count 2.  She was over 12 for all of counts 3-7.  To adopt a formulation that characterises the offending against COM as being “against a 10 year-old girl over a period of time” is apt to distort matters.  COM was 10 years and 3 months for count 1, and older for all others.
97. [97]
    Count 3 shows the inaptness of the suggested distinction.  That was the count of rape against COM.  For that count s 349 of the Criminal Code (Qld) required that the Crown prove lack of consent on COM’s part.  Thus, count 3 was one where, according to the postulated distinction, one could say that it was a sexual assault in respect of which COM (then over 12 years old) could have consented.  Had she done so then no unlawful act would have occurred.  That is precisely the basis of the suggested distinction.
98. [98]
    As for indecent treatment the Criminal Code does not suggest that the substantive quality of the offending act is different, just that it warrants a greater penalty when the child is under 12.  Section 210 of the Code relevantly provides:

“210 Indecent treatment of children under 16

(1) Any person who—

1. (a)
   unlawfully and indecently deals with a child under the age of 16 years; or

…

4. (d)
   wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person; or …

is guilty of an indictable offence.

3. (2)
   If the child is of or above the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for 14 years.
4. (3)
   If the child is under the age of 12 years, the offender is guilty of acrime, and is liable to imprisonment for 20 years.”

99. [99]
    Once above 12 there is no legal distinction until the child reaches 16, when consent might be given whereas before that it is legally impossible.
100. [100]
     Further, in my respectful view, the fact that a child might be legally capable of giving consent means little if the context of the offending is left out of account.  An unlawful sexual assault contrary to s 210 of the Criminal Code does not cease to be so just because the victim is legally capable of giving consent.  It only ceases to be unlawful if consent is actually given, or the defence can prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years.  Here, no consent was given, nor was it suggested that the appellant had any relevant belief as to VIC’s age.  Moreover, there was nothing in the evidence upon which to base any inference or assumption that VIC might consent to being touched by the appellant.
101. [101]
     It is, in my respectful view, an error to proceed on the basis that there is a relevant distinction between the evidence of offending against COM as opposed to that of offending against VIC because VIC might have consented and thereby rendered the conduct lawful.  The appellant had no reason whatever to think that VIC might consent when there was no suggestion of any such contact between them before, nor was there any suggestion that they had even been alone together before.  To reason that way is to define the conduct against a child as different because the offender might get lucky even when there is no rational basis to think so.
102. [102]
     Further, the absence of any basis to reason that VIC might have consented, or that the appellant ever had the thought she might do so, prevents a conclusion that in VIC’s case there may have been a reasonable view consistent with innocence.
103. [103]
     The assault against VIC was the same opportunistic, brazen type of assault that the appellant had already perpetrated against COM, and would continue to perpetrate against COM.  The evidence of the offending against COM was, in my view, admissible to explain that the offence against VIC was more probable, and the improbability of the explanation of either of COM or VIC being false.
104. [104]
     For these reasons I am of the view that there was no miscarriage of justice by not severing the indictment.  Ground 1 fails.

Ground 2 – summing up

105. [105]
     The second ground of appeal focused on a passage in the summing up where the learned trial judge said:^[64]

“Now, in this case, the similarities which might be open to be found on the evidence are these. And again, I remind you that this is a matter of evidence. This is entirely a matter for you. Right. Some of these matters might be said to be similar. Both the Complainants met through the agency of the Defendant’s daughter. That is, the daughter [name]. Both the Complainants attended the same school as the Defendant’s daughter. Both the Complainants were vulnerable children in one respect. In respect of [COM], she was from a socially disadvantaged household, vulnerable in the sense that she was living under the Defendant’s roof.

The second Complainant [VIC] had plainly psychological issues that rendered her arguably vulnerable. These are all matters for you to consider based upon the evidence that is before you. And it follows by reason of the vulnerability that they may have been open to the Defendant’s entreatment. Both girls were pubescent. The touching generally, not in all instances, but generally involved touching of the genital region. Further, the conduct could be said to be brazen. That is, that the conduct occurred in relation to both Complainants in circumstances where there were others present, where it could be said that the Defendant courted the risk of exposure or being discovered by others who were present in the household.

Of course, there is one dissimilarity that can be pointed to, and that, of course, is the age disparity between the two Complainants. The first Complainant was 10 at the time … the offending commenced. But in the latter part of the offending at the time that the offending occurred against the second Complainant, she was 11. The second complainant was 16. But you might take into consideration, bringing your life experience to bear, that [COM] says that she commenced menstruating at about the age of 10. So perhaps the age matter is a matter you can reflect upon, in terms of whether it has any significance in the overall scheme of things. But they are the similarities and the dissimilarities that are apparent from the evidence before you.”

106. [106]
     The appellant’s submission was that the vulnerability of the complainants was not specifically adverted to in the Crown submission on the similarities in the case, and there was no evidence led at trail that suggested that the appellant was aware of VIC’s mental health issues.  Further, it was submitted that the suggestion that the complainants were “vulnerable to his entreatment” did not sit well with the evidence of VIC, who said that she had brought the touching to an end to and complained almost immediately after the incident took place.^[65]
107. [107]
     In my view, this ground should be rejected for a number of reasons.
108. [108]
     First, as pointed out above, the Crown case proceeded on the basis that each of the complainants was vulnerable, though in a different way.  COM’s vulnerability came from the fact that her family had nowhere else to live and COM was fearful about what would happen if she revealed the offending.  In VIC’s case, it was urged by the Crown that her mental health struggles rendered her vulnerable as a target by the appellant.
109. [109]
     Secondly, it is true to say that in that part of the Crown Prosecutor’s address on the similarities^[66] the complainant’s vulnerability was not listed.  However, the Crown did not purport to list all of the similarities, saying:^[67]

“Neither the evidence of [COM] nor of [VIC] stands alone in this case because, in assessing their evidence, you have the others. So in assessing [COM], you have [VIC] and vice versa. You’re allowed in this case to consider the evidence of both [COM] and [VIC] and compare their similarities to help you determine if they are giving a false or a true account. I’ll highlight some of the similarities so you can see the pattern that I’m talking about.”

110. [110]
     The Crown Prosecutor then went onto list some of the similarities: (i) each were friends of the appellant’s daughters; (ii) each were young girls; (iii) each visited the appellant’s house; (iv) the nature of the offences was somewhat similar, involving “a gentle touching, a caress on the thigh and then it moves to the vagina, where he touches them”; and (v) the brazenness of the offending, occurring in a household of other people.
111. [111]
     Thirdly, when the learned trial judge came to summarise the competing submissions at the trial, the Crown’s identification of the vulnerability of COM and VIC was noted.^[68]
112. [112]
     Fourthly, the Crown Prosecutor having submitted that each of the complainants was a vulnerable person, and vulnerable to sexual assault by the appellant, the learned trial judge was right to draw attention to it.  Notably in the passage to which objection is taken, the jury were directed that the similarities to which his Honour referred were ones “which might be open to found on the evidence”, that what he was reciting was “a matter of evidence” which was “entirely a matter for you”, and that the similarities and dissimilarities listed were those “apparent from the evidence before you”.
113. [113]
     In the circumstances, his Honour did not introduce a factor which was not live in the trial.
114. [114]
     Fifthly, the submission that there was no evidence that the appellant was aware of VIC’s mental health issues does not avail the appellant.  It does not matter whether he knew that, just as it does not matter whether he knew of COM’s fears of what might happen to her family if she exposed what had occurred.  It is the fact of vulnerability which the complainants had in common.
115. [115]
     Sixthly, I do not consider that the jury were misled, or apt to be misled, by the description of the complainants as “pubescent”.  That term, commonly understood, refers to a person arriving or having arrived at puberty.  And, puberty is commonly understood as the period during which adolescents reach sexual maturity and become capable of reproduction.  Both complainants were pubescent, in that they had arrived at puberty.  COM was aged between just over 10 years old and nearly 13 years during the period of offending.  She first had her period in year four,^[69] which, given she was born on 7 November 2004, was in 2014.  She did not meet the appellant’s daughter until year five, in 2015.^[70]  Therefore, she first had her period some time before count 1.  And, by the time of count 1 COM had developed breasts.
116. [116]
     In the circumstances, the description of COM as being pubescent was hardly misleading.  Nor was it in respect of VIC.  In my view, it did not introduce an issue that was prone to confuse the jury or improperly detract from defence arguments as to the differences between the complainants.

Did use of the description “pubescent” cause a miscarriage of justice?

117. [117]
     Of course it is the case, and the jury would not have missed, that COM was younger than VIC by a little over three years.  Because of her age VIC gave evidence in the usual way, not in a pre-recorded form.  By contrast, COM’s evidence was given in the form of s 93A interviews and pre‑recorded evidence under s 21AK of the Evidence Act 1977 (Qld).  When the trial was held in September 2020, VIC was about 20 years old and COM would have been about 16.  However, what the jury saw in terms of the first s 93A recorded interview was COM being interviewed on 15 August 2017 when she was 12 years and nine months old.  The second s 93A recorded interview was made on 24 August 2019, when COM was nearly 15 years old.  Nonetheless, the jury’s ability to observe COM giving evidence, at least in the form of the first s 93A interview, gave them an insight into COM at an age under 13 years old and only two years older than when the maintaining period the subject of count 2 began.  She was then still within a few months of her age in respect of counts 3 and 4, and the same age she was when counts 6 and 7 occurred.
118. [118]
     In those circumstances, the jury’s ability to see COM at her age close to the offending conduct, together with the evidence that her first period was in year five (2014) and had developed breasts by the time of count 1, was a sufficient foundation for the jury to conclude that COM was pubescent.
119. [119]
     In the same way the jury were well placed to decide if the description “pubescent” could be applied to VIC.  The judge did not tell them that they must find so; to the contrary, they were repeatedly told that any comment by the trial judge on the evidence was not binding on them.^[71]  And they were directed that it was a matter entirely for them to assess what evidence there was going to similarities and dissimilarities, and that the matters the trial judge referred to might be said to be similar.  They saw VIC at 20 years old, and the offending against her took place about four years before that.  VIC’s evidence was that she was 16 in 2016, lived with her parents, had a boyfriend, and at one point had drunk alcohol at the appellant’s house (in his absence).^[72]  The jury could not have mistaken the difference between their ages and their different stages of development.
120. [120]
     In address the Prosecutor described the complainants as “young girls”,^[73] but specifically to COM as: (i) a “child”;^[74] (ii) a “young child not even a teenager”, and a “kid”;^[75] and (iii) being “on the cusp of becoming a teenager”.^[76]  By contrast, as to the elements concerning count 8, the Prosecutor referred to VIC, “instead of her being a child”.^[77]
121. [121]
     In the defence address, COM was referred to as: (i) a “child”;^[78] but (ii) someone who, given her age and family background, knew exactly what sex was.^[79]  There was no characterisation of VIC.
122. [122]
     In the summing up, both COM and VIC were referred to as “children”,^[80] but then in the same passage where the word “pubescent” was used, the age difference was highlighted, and the jury were told that the age difference was a particular point of dissimilarity relied on by the defence.^[81]
123. [123]
     In my respectful view, the jury were not misled, nor apt to be misled, in some way by the use of the word “pubescent” such that the trial was unfair to the appellant.  It may also be noted that no redirection was sought by the experienced defence Counsel.
124. [124]
     In my respectful view, ground 2 fails.

Conclusion

125. [125]
     Both grounds having failed, the appeal should be dismissed.
126. [126]
     McMURDO JA:  This is another appeal against convictions of sexual offences upon the ground that the evidence of one complainant should not have been used to consider the charges involving another complainant.  If the evidence of the complainants was not cross-admissible in that way, the charges based upon their respective complaints should not have been tried together, because in cases involving alleged sexual offending, the risk of impermissible reasoning by a jury is unlikely to be avoided by the directions of the trial judge: Hoch v The Queen,^[82] referring to De Jesus v The Queen.^[83]  A second and related ground is that the trial judge misdirected the jury in some respects about the similarities of the complainants’ versions, and thereby the use which they could make of the evidence of one complainant in considering the complaints of the other.  I agree with Morrison JA that the appeal should be dismissed although not for identical reasons.

The common law test of admissibility

127. [127]
     In every Australian jurisdiction apart from Queensland, the admissibility of evidence of this kind is governed by legislation, most commonly by the provisions of the so-called uniform Evidence Acts.^[84]  Section 97 of those Acts provides for what it calls the tendency rule, by which evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, may be admitted if the court thinks that the evidence will have “significant probative value”.  Section 98 provides for what it calls the coincidence rule, by which evidence that two or more events occurred may be admitted, if similarities in the events and the circumstances in which they occurred make it improbable that the events occurred coincidentally.  Again, it is a condition of admissibility under s 98 that the court thinks that the evidence will have significant probative value.
128. [128]
     The High Court has said that this legislation has made substantial changes to the common law and, importantly, that it has resulted in a test of admissibility which is less demanding.^[85]
129. [129]
     In Queensland, with one qualification,^[86] it is the common law rule which is applied to determine the admissibility of similar fact evidence.  Queensland courts must apply the common law rule of admissibility as propounded in Hoch and confirmed in Pfennig v The Queen,^[87] Phillips v The Queen,^[88] and R v Bauer.^[89]
130. [130]
     In Perry v The Queen,^[90] Gibbs CJ observed that the common law rule is one which, subject to certain exceptions, requires the exclusion of evidence not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused, or in other words, that it is likely to be misused by a jury.  In Pfennig, McHugh J explained the reasons by which the common law exclusionary rule has been justified, including the risks that a jury might make too much of evidence of this kind and that it might undermine the presumption of innocence by creating an undue suspicion against an accused.^[91]  The balance struck by the common law is to exclude the evidence as unfairly prejudicial to the accused, unless the evidence has such a degree of probative force that it would satisfy the test stated in Pfennig.
131. [131]
     Pfennig does not require the court 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.^[92]  The similar fact evidence must be considered in the context of the entire prosecution case, and upon certain assumptions.  It must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in the evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.  The court is obliged to exclude the evidence if, viewed in that context and upon those assumptions, there is a reasonable view of the similar fact evidence which is consistent with innocence.^[93]
132. [132]
     Those two assumptions were helpfully expressed by Hodgson JA in R v WRC^[94] as follows:

“In my opinion what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.”

That passage was approved in HML v The Queen,^[95] and in BBH v The Queen.^[96]

133. [133]
     Pfennig was a case of a kind which had been described in the High Court’s earlier judgment in Hoch^[97] as follows:

“Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.”

134. [134]
     The present case is not of that kind.  At this trial, as is usually the case where charges involving several complainants of sexual offending are tried together, the happening of each alleged act was disputed.  As was explained in Hoch,^[98] in cases of this kind the evidence is relevant to prove the commission of the disputed acts and “its value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.”  Their Honours cited this passage from the speech of Lord Wilberforce in Director of Public Prosecutions v Boardman:^[99]

“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.”

135. [135]
     Consequently, in cases such as this one, it is usual for trial judges to direct juries in accordance with what might be called the Hoch test.  If there is a sufficient similarity between the respective accounts of the complainants that both accounts must be true (or have arisen from a cause common to them or from pure coincidence), each account will bear such a sufficient probative force in the proof of the case involving the other complainant, that the exclusionary rule should be displaced.  If the evidence of the two complainants is so similar that they must both be telling the truth, it follows that there could be no reasonable view of the similar fact evidence that is consistent with innocence.
136. [136]
     That is the way in which the prosecution presented this case and the jury was directed about it.  In her address to the jury, the prosecutor argued that there was a compelling similarity in the accounts.  The prosecutor said that the most compelling similarity was “the brazenness of the offending, when it has occurred in a house full of other people”.^[100]  She argued that this was “something that is simply improbable that both complainants would allege if it were something that were false [and that the jury was] allowed to look at those similarities and compare them and determine whether they are so similar that it is highly likely the defendant committed the offences against both [complainants]”.^[101]
137. [137]
     The judge directed the jury as follows:^[102]

“Now, as I have said already, and I will remind you again in a short time, you must consider the evidence in relation to each charge separately, and you are required to return a separate verdict for each charge. Here, there are two Complainants, … , and the Prosecution case is that the evidence of each Complainant does not stand alone. The Prosecution argues that each Complainant is supported by the evidence of the other Complainant. The Prosecution argues that the similarities in the Defendant’s alleged conduct towards each other means that the evidence of each Complainant supports the other and makes it more likely that what each Complainant says about the conduct relating to her, that is to the individual Complainant is truthful and reliable. In other words, the Prosecution argues that the degree of similarity between the versions makes it highly improbable that it is just by chance that the Complainants have falsely complained about similar events.

However, before you can use one Complainant’s evidence in support of the truthfulness and reliability of another Complainant, you need to be satisfied beyond reasonable doubt about the following things. First, in respect of collusion. You must first be satisfied that the evidence of each Complainant is independent of each other, and by satisfied, the evidence of each Complainant being independent, I mean you must be satisfied there is no risk, no real risk, that the Complainants have together concocted similar complaints. Plainly, the value of any combination and likewise, any strength in numbers is completely worthless if there is any real risk that what the Complainants have said was falsely concocted by them.

So I direct you that you cannot use the evidence of the Complainants in combination unless you are satisfied that there is no real risk the evidence is untrue by reason of concoction. You must be satisfied that there is no real risk of concoction. A real risk is one based on the evidence, not one that is fanciful or theoretical. So far as concoction is concerned, you will recall the submission made by the Defence that they were aware of each other’s allegations, it was submitted. They were friendly, and they had been in contact at least one or two weeks ago. That is the evidence which is pointed to by the Defence. As to whether you think that satisfies you that there is a real risk of concoction is entirely a matter for you, members of the jury.

Now, secondly, if you are satisfied that there is no real risk of concoction, then you must also be satisfied that the evidence of the particular Complainant under consideration is truthful and accurate as to the alleged similar conduct. And that the supporting evidence of the Complainant, the other Complainant is also truthful and accurate as to the alleged similar conduct. That is, it must be strikingly similar. Third, you must be satisfied that the facts proved with respect to the other Complainant is so similar to the allegations made by the particular Complainant under consideration that there is no reasonable view of the evidence of the other Complainant, other than that the Defendant committed the acts of the particular Complainant alleged.

Now, in this case, the similarities which might be open to be found on the evidence are these. And again, I remind you that this is a matter of evidence. This is entirely a matter for you. Right. Some of these matters might be said to be similar. Both the Complainants met through the agency of the Defendant’s daughter. That is, the daughter … . Both the Complainants attended the same school as the Defendant’s daughter. Both the Complainants were vulnerable children in one respect. In respect of the Complainant …, she was from a socially disadvantaged household, vulnerable in the sense that she was living under the Defendant’s roof.

The second Complainant … had plainly psychological issues that rendered her arguably vulnerable. These are all matters for you to consider based upon the evidence that is before you. And it follows by reason of the vulnerability that they may have been open to the Defendant’s entreatment. Both girls were pubescent. The touching generally, not in all instances, but generally involved touching of the genital region. Further, the conduct could be said to be brazen. That is, that the conduct occurred in relation to both Complainants in circumstances where there were others present, where it could be said that the Defendant courted the risk of exposure or being discovered by others who were present in the household.

Of course, there is one dissimilarity that can be pointed to, and that, of course, is the age disparity between the two Complainants. The first Complainant was 10 at the time of the first – or the – at the time the commending – the offending commenced. But in the latter part of the offending at the time that the offending occurred against the second Complainant, she was 11. The second complainant was 16. But you might take into consideration, bringing your life experience to bear, that the Complainant … says that she commenced menstruating at about the age of 10. So perhaps the age matter is a matter you can reflect upon, in terms of whether it has any significance in the overall scheme of things. But they are the similarities and the dissimilarities that are apparent from the evidence before you.

Now, the Prosecution argues that the facts proved to you are so similar that when judged by common sense and experience, they must be true. And in that way, you can use the evidence of the Complainants in combination. They argue that in the absence of collusion, it is objectively improbable that Complainant A would complain of offending against her by the Defendant in such similar circumstances as those alleged by Complainant B unless the offending by Complainant A actually occurred. Importantly, however, the Defence argues that the allegations are not similar, or not so similar at least as to allow you to use the evidence of one Complainant in proof of the allegations made by another. In particular, because of that point of distinction in terms of age that I have just outlined.”

138. [138]
     The case was not put to the jury, by the prosecutor or by the trial judge, upon a proposition that the evidence of one complainant might be admitted in the proof of the charge or charges involving the other complainant, as “relationship evidence”.  In a different context, evidence may be led of conduct by the accused, other than that the subject of the charge in order to remove the implausibility that might otherwise be attributed to an account of the charged offence if the offending were thought to be an isolated incident.  With respect to those who may have said otherwise, the context in which evidence is admitted on that basis is where the other conduct of the accused involves the same complainant, because the evidence goes to reveal the full facts of the relationship between the accused person and that complainant.
139. [139]
     Similarly, the evidence of other conduct by the accused and involving the same complainant may be admitted to prove a sexual interest by the accused in that complainant, upon which the accused was prepared to act.
140. [140]
     For as long as the common law is to be applied in Queensland, it is the Pfennig test which must be satisfied, and in cases where the occurrence of all of the complaints is disputed, it is by a similarity in the accounts as described in Hoch that the evidence may be made admissible.

The evidence was cross admissible

141. [141]
     Morrison JA has comprehensively described the evidence and it need not be repeated here.  There were three points of similarity which were telling, namely the brazen nature of the alleged offending against the complainants, the nature of the assaults of which each complained and the circumstances of the alleged offending occurring in the appellant’s house and during the same period of time.
142. [142]
     As to the first matter, the complainant for count 8 said that she was assaulted as she sat on the bed of her friend’s room, with her friend standing just outside the open door with her mother and siblings.  She said that the appellant seized on the opportunity of her being alone in that room, for a very short time, to set about assaulting her whilst she was distracted by using her phone.  The same brazenness and opportunism characterised at least most of the complaints relevant to the other counts.
143. [143]
     The nature of the offending was the same between that alleged by count 8 and many of the other counts.  It was an assault which involved the touching of the girl’s vagina as soon as the opportunity arose to do so.
144. [144]
     Those opportunities arose and were exploited in the appellant’s house, where the jury might have considered the appellant would be more emboldened to act in this way.
145. [145]
     For the appellant, it is submitted that there was a marked dissimilarity in the age of the two complainants.  It is said that the complainant for count 8, being a 16-year-old girl, was capable in law of consenting to this conduct.  That last feature is immaterial in a case where there was no issue about consent, the issue being whether the event occurred at all.  The jury had evidence of the circumstances of each complainant which made her particularly vulnerable to misconduct of this kind.  The evidence enabled the jury to find that the appellant was aware of that vulnerability of the younger girl, but not of the particular vulnerability of the older girl.  Nevertheless, the nature of the alleged assault on the older girl demonstrated a perception by the appellant that she was vulnerable, in the sense that she was unlikely to resist or complain.  The assault in count 8 was not the way in which the appellant was likely to have acted towards a mature and self-confident 16-year-old.  The difference in their ages was of little weight.
146. [146]
     The similarity of the complaints was such as to ground a conclusion that they must have both been true, if they had not arisen from a cause common to the complainants or from pure coincidence.  There was nothing to indicate that the account of one complainant derived from the other.  The evidence of the complainants was cross-admissible, and there was no miscarriage of justice by the charges being tried together.

The judge’s directions

147. [147]
     The other ground of appeal is that the judge misdirected the jury as to the similarities between the respective complaints, by referring to two points of similarity which were not established by the evidence or argued by the prosecutor.  It is conceded that defence counsel sought no redirection about either of them.
148. [148]
     The first is the judge’s comment that “both girls were pubescent”.  He added that the younger complainant said that she commenced menstruating at the age of 10 and that “perhaps the age matter is a matter you can reflect upon, in terms of whether it has any significance in the overall scheme of things.”  He reminded the jury that the other complainant was aged 16.  It is submitted that there was no evidence which established the younger girl’s relative state of development, so that the judge was wrong to describe her as pubescent.  However, there was the complainant’s evidence that she commenced menstruating at about the age of 10, from which she could be described as pubescent in that she was “arriving or [had] arrived at puberty”.^[103]  The jury could not have been misled by the judge’s description of her as pubescent.
149. [149]
     The other complaint is that the judge referred to the older girl as having “plainly psychological issues that rendered her arguably vulnerable” and that both girls, by reason of their vulnerability, “may have been open to the defendant’s entreatment.”  As I have just said, there was no basis for a finding that the appellant knew of the particular vulnerability of the older girl.  But what mattered was that he saw fit to sexually assault her in a way which demonstrated a perception that she was not a mature and self-confident 16-year-old.  There was thereby a similarity of a perception of vulnerability between the complainants.  Especially where defence counsel did not seek a redirection on the point, it cannot be said that a miscarriage of justice resulted.
150. [150]
     I would dismiss the appeal.