R v YF[2023] QCA 111

12. [31]
    Ground 2 only arises in the event the Court finds that the evidence in question was not cross-admissible.

Particulars of charges and background facts

32. [32]
    On 14 July 2020, an indictment was presented charging the appellant with three counts of indecent treatment of a child under 16, under 12, under care (domestic violence offence).  Counts 1 and 2 related to complainant A, while Count 3 related to complainant B.
33. [33]
    The complainants, A and B, are sisters and the step-grandchildren of the appellant’s then partner.  A was 10 years old at the dates particularised for Counts 1 and 2 and B was nine years old at the time the offending relevant to Count 3 occurred.
34. [34]
    Counts 1 and 2 were particularised as having been committed between 20 December 2018 and 4 January 2019, during the Christmas school holidays when A was visiting her step-grandmother.  On the first occasion it was alleged that the appellant touched A’s breast/s on the outside of her clothing with his hand/s.  On the second occasion it was alleged that whilst near a dam on the property, the appellant touched A’s breast/s on the outside of her clothing with his hand/s.  Count 3 was particularised as having been committed between 9 and 16 April 2019, when B was visiting her step-grandmother over Easter.  As to that count, it was alleged that the appellant touched B’s bottom and/or leg with his penis.
35. [35]
    The step-grandmother lived some distance from the complainants’ mother and step-father.  She was working from the house during the period when both A and B were visiting.  There were two sheds on the step-grandmother and appellant’s property.  Those sheds were referred to as the “big shed” and the “little shed near the dam”.  The appellant operated an upholstery business out of the big shed.  The offending occurred in each case when A and B had been spending time alone with the appellant playing in or near the sheds.
36. [36]
    According to A, Count 1 occurred when she was in the big shed with the appellant when without warning he came up behind her and placed his arms around her shoulders, rubbed her chest near her neck and touched her “boobs” on the outside of her shirt for approximately 5 seconds.  On the second occasion, the timing of which was the subject of different accounts by A, A was with the appellant at the little shed near the dam.  A was standing watching possums, a mother and baby, when the appellant came over and put a box and moved a metal tin near the possums then put his arms around A’s shoulders, rubbed her chest for about 10 seconds and touched her “boobs” outside her clothes for about 5 seconds.  He did not say anything.
37. [37]
    In the case of B, she had been in the big shed with the appellant making a present for her step-grandmother.  She took the present to the house to give to her step-grandmother and then returned to the shed.  B went back to the table where she was playing.  She had dropped a button, picked the button up and gone to a table in the shed when the appellant came up behind her.  The appellant, while standing behind her, grabbed her shoulders.  He pulled his “rude part” from his undies and rubbed it on her bottom and leg without saying anything.  She protested and tried to leave but he continued to hold her.  After he had let her go, he told her not to dare tell anyone or she would be in trouble with him.

Pre-trial ruling – grounds 1 and 2

38. [38]
    On 5 February 2021, the appellant applied to sever Counts 1 and 2 relating to A from Count 3 relating to B on the basis that the evidence of each complainant was not cross-admissible.  The respondent sought the admission of the evidence of the uncharged acts or act in relation to the charged acts or act on the basis that the evidence was cross-admissible as it proved a sexual interest in the relevant complainant and a propensity on the part of the appellant to act on that interest.
39. [39]
    The joinder of charges is governed by s 567 of the Criminal Code (Qld) (the “Criminal Code”) which provides:

3. “567
   Joinder of charges

3. (1)
   Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

3. (2)
   Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”

40. [40]
    The power to order that charges be tried separately is contained in s 597A of the Criminal Code which provides:

“597ASeparate trials where 2 or more charges against the same person

3. “(1)
   Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.

3. (1AA)
   In considering potential prejudice, embarrassment or other reason for ordering separate trials under this provision in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.”

41. [41]
    The application was heard by Lynch SC DCJ.  His Honour concluded that the evidence of each complainant revealed a tendency on the part of the appellant to act in the way contended by the respondent.  As a consequence, the evidence was ruled cross-admissible and the application to sever the indictment refused.
42. [42]
    The application was made prior to the pre-recording of evidence pursuant to s 21AK of the Evidence Act 1977 (Qld) (the “Evidence Act”) and was based on the statements of A and B made under s 93A of the Evidence Act.
43. [43]
    At the application, the appellant contended that the case was not one where the counts were justified in being joined on the same indictment under s 567(2) of the Criminal Code and that separate trials should be ordered under s 597A(1) of the Criminal Code on the basis that the evidence on the three counts was not cross-admissible.
44. [44]
    At the pre-trial application, the appellant submitted that the Pfennig v The Queen (“Pfennig”)^[26] test could not be met in respect of A’s evidence in respect of B’s trial, particularly because the alleged conduct could be consistent with innocence.  The appellant submitted that A’s evidence was entirely consistent with a rational view of a step-grandfather touching his step-granddaughter across the chest or a description of the child being told he was going to throw her in the pool coinciding with touching on the breast.  The appellant’s counsel conceded that the same could not be said in relation to the cross-admissibility of B’s evidence in respect of A’s charges, insofar that if the evidence could be used to demonstrate a sexual interest in a pre-pubescent girl the appellant could not raise the argument that the alleged incident relating to B could be consistent with innocence on any rational view.  It was, however, for the Crown to establish the admissibility of the evidence, not for the defence to establish it was inadmissible.
45. [45]
    The appellant further submitted that hearing the counts together would be prejudicial and could not be countered by any direction given to the jury.
46. [46]
    The respondent did not initially identify the basis upon which it contended that the evidence was cross-admissible.  As a result, at the outset of the pre-trial hearing Lynch SC DCJ required the respondent to identify the basis upon which it contended that the evidence was cross-admissible, having referred the parties to the majority decision in R v WBN (“WBN”)^[27].  The respondent subsequently stated that it sought to lead the evidence of A in relation to the charges involving B and vice-versa to show the appellant had a sexual interest in or attraction towards pre-pubescent girls and that the appellant had a propensity to act on that interest when confronted with an opportunity to do so, which had been the basis upon which the appellant had thought the respondent was proceeding.  That was the basis upon which the appellant had proceeded in the application.
47. [47]
    The respondent submitted the counts on the indictment were properly joined and that what A said occurred would render it more likely that B was truthful about what was done to her.  The respondent also referred to the similarities in the conduct, albeit accepting there were differences in the offending.  The similarities identified were that:

    1. (1)
       both of the complainant children were pre-pubescent girls;
    2. (2)
       the alleged offending was sexual in nature;
    3. (3)
       the offences are alleged to have occurred at the appellant’s property;
    4. (4)
       the appellant was in a position of advantage due to his relationship with the complainant children; and
    5. (5)
       the alleged offending occurred whilst the appellant was alone with the complainant children.
48. [48]
    After the respondent identified the basis upon which it contended the evidence was cross-admissible, his Honour said that he would proceed on the basis of the test propounded in Pfennig and applied the approach of the majority in R v McNeish (“McNeish”)^[28].  His Honour reviewed the part of the recorded evidence of A where she referred to the actual conduct and gave physical demonstrations.  His Honour made reference to the High Court cases of Hughes v The Queen (“Hughes”)^[29] and R v Bauer (“Bauer”)^[30], which arose out of jurisdictions where uniform evidence legislation applied in relation to coincidence and tendency evidence rather than the common law test for admissibility.  His Honour, however, referred extensively to aspects of the reasons in Pfennig as well as Phillips v The Queen (“Phillips”)^[31] and McNeish and applied the common law test.
49. [49]
    His Honour sought to apply the four-step process identified by the majority in the Court of Appeal in McNeish, which addressed the approach to be applied in considering whether the Pfennig test applied where there are multiple complainants:

    1. (1)
       First, his Honour identified that the evidence was sought to be admitted on the basis that it proved a tendency to have a sexual interest in and act on that interest when the opportunity arose in respect of pre-pubescent girls;
    2. (2)
       Secondly, accepting the evidence as accurate, and having watched a portion of A’s evidence where she described what occurred, his Honour was satisfied that A was describing touching in a sexual sense, contrary to the submission of the appellant that the conduct could be regarded as innocent, and was capable of proving the tendency;
    3. (3)
       Thirdly, his Honour was satisfied that there was the necessary connection between the uncharged acts for Counts 1 and 2 with Count 3 and between the uncharged act, Count 3, with the charged acts for Counts 1 and 2.  His Honour identified the issue to be that accepting the uncharged act occurred tends to make the charged act more likely to have occurred, or the commission of that offence more probable in the way described in McNeish; and
    4. (4)
       Finally, his Honour considered whether the probative force of the evidence outweighed the prejudicial effect.  Having identified the possible misuse of the evidence by the jury, his Honour concluded that appropriate directions could be drafted to identify the limited use that could be made of the evidence of tendency when considering each of the charged acts and to avoid false reasoning that the defendant must be guilty of the charged conduct because of the other allegations.
50. [50]
    His Honour found that there was no reasonable explanation of the evidence other than supporting an inference that the defendant was guilty of the offence charged and the evidence was properly cross-admissible.  His Honour observed that the offences were of similar legal character, the timeframe between the commission of the separate offending was relatively short, and stated he was satisfied that the offences were properly joined on the indictment as forming a series of offences of the same or similar character.

Contentions

51. [51]
    The appellant contends that the evidence relating to Counts 1 and 2 involving A was admitted in error and in circumstances indistinguishable in a practical sense from a category of evidence found not to be cross-admissible in R v CDA (“CDA”)^[32], where the evidence was said to be of no more than the “propensity to sexually offend against female children in circumstances of control and risk of exposure”.^[33]  Counsel for the appellant contends that the evidence in the present case was too scant in detail to say anything significant about an apparent propensity to act upon an interest when confronted with an opportunity to do so.  According to the appellant’s counsel, Counts 1 and 2 were too small a sample size to carry the specific inference as to the alleged tendency without a clear underlying unity as to what occurred between the two sets of offending, and the underpinning facts were insufficiently detailed to allow a jury to make the assessment.  The evidence therefore lacked the probative force necessary to allow for its admission where the overwhelming prejudicial effect of the evidence was obvious, and cross-admissibility should not have been allowed.
52. [52]
    The respondent, however, contends there were a number of similarities which were identified by the prosecutor in his final address, and which expanded upon the features identified in the pre-trial application, namely:

    1. (a)
       the similar ages of the complainants, A and B;
    2. (b)
       the proximity in time as between the offending;
    3. (c)
       the general appearance of the complainants;
    4. (d)
       the relationship between the appellant and the complainants;
    5. (e)
       that the offending occurred in the school holidays when the complainants were alone with the appellant;
    6. (f)
       that the offending occurred on the appellant’s property near the sheds;
    7. (g)
       that both A and B were clothed;
    8. (h)
       that the appellant said nothing before he offended; and
    9. (i)
       that the appellant touched A and B with part of his body.
53. [53]
    The respondent contends that the value of the evidence lay in its capacity, when viewed in combination, to demonstrate sufficient similarity to disclose a particular unique propensity of the appellant.  It contends that it was demonstrative of the particular modus operandi of the appellant to indecently deal with female children related to him who were in his care and when alone on his property with him.  It submits that the learned District Court Judge was correct to conclude that there was no rational view of the complainants’ evidence other than it disclosed a similar pattern of unique behaviour capable of demonstrating a particular propensity to act in the way the appellant did, having applied the process for determining the admissibility of propensity evidence outlined by the majority in McNeish.
54. [54]
    While conceding there were dissimilarities between the offending, particularly as to operative features of the offending and threats made in B’s case, the respondent submits that the similarities identified at the pre-trial hearing and expanded upon at the trial are relevant to demonstrate that the evidence has the requisite strong probative force and that the combination of features made it more probable that the appellant behaved in the same way in relation to the other complainant in circumstances where such activity is unique by the standards of innocent people.  The Crown submits that if accepted on Count 1 and 2 or vice-versa for Count 3 in relation to Counts 1 and 2, the evidence demonstrated a particular propensity to act upon a sexual interest in children in those particular circumstances, namely where there was a familial connection, on the appellant’s property, whilst isolated and in a brazen way.

Legal framework for consideration

55. [55]
    Where sexual offences are involved, the necessary nexus justifying the joinder of charges under s 597 of the Criminal Code is to establish a “series of offences of the same or similar character” which includes if the evidence on one set of charges is admissible in proof of the other charge or charges.^[34]
56. [56]
    At common law, evidence of discreditable conduct of an accused towards someone other than the complainant is generally inadmissible.  However, in exceptional cases, it may be admissible as similar fact evidence.  Similar fact evidence is circumstantial evidence.^[35]  Although often referred to under the generic term “similar fact evidence”, evidence may be admissible as propensity evidence, sometimes referred to as tendency evidence, as opposed to being admissible due to the similarities of fact, which evidence is sometimes referred to as coincidence evidence.  In the former case the evidence is admissible because it is relevant as it demonstrates a relevant propensity or tendency of an accused, whereas evidence in the latter case of 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 occurred innocently or fortuitously”^[36].  The basis upon which the evidence is sought to be admitted must be clearly identified for the Court to determine its admissibility and, if admitted, to give the relevant directions to the jury.^[37]
57. [57]
    The common law test requires a high bar to be met in order for similar fact evidence to be admissible given the acknowledged prejudicial effect of such evidence for the accused at trial.  The evidence must have strong probative force which transcends its prejudicial effect.  The propensity evidence must possess a high degree of cogency to overcome its prejudicial effect.  It must have a really material bearing on the issues to be decided or have a sufficient nexus with the other evidence, although it has been described in different ways.  There must be no reasonable view of the propensity evidence which is consistent with the accused’s innocence in relation to the act charged.
58. [58]
    In Phillips the plurality stated:

“[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.”  The criterion of admissibility for similar fact evidence is “the strength of its probative force”.  It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence.  The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”.  Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case.  As explained in Pfennig v The Queen:

‘[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.’”^[38]

59. [59]
    Where evidence is sought to be admitted on the basis of the coincidence of the circumstances of the offending, there must be “‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution”^[39].  While those features are not necessary for admissibility where the evidence is relied on as propensity evidence, it remains the case, as was said by the majority in Pfennig, that “usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics”^[40].
60. [60]
    As the question of cross-admissibility is generally determined prior to trial, the trial judge must assume that the propensity evidence would be accepted as true and that the prosecution case may be accepted by the jury.^[41]The trial judge does not have to conclude that the similar fact evidence if it stood alone would be sufficient to demonstrate the guilt of the accused of the offence or offences with which he or she is charged.  However, the trial judge must exclude the evidence if, viewed in the context of the prosecution case and taking account of the assumptions that the trial judge must adopt, there is a reasonable view of the propensity evidence which is consistent with innocence.^[42]  Framed differently, “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”.^[43]
61. [61]
    Where the evidence of discreditable conduct towards another is undisputed, such as in Pfennig itself where evidence of the offending which was admitted on the basis of similar facts to prove identity had been the subject of a conviction, the high bar for admissibility will be easier to meet.  However, evidence of discreditable conduct towards another may still be admissible even if it is disputed, as was discussed by the High Court in Hoch v The Queen (“Hoch”),^[44] where Mason CJ and Wilson and Gaudron JJ stated that:

“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 … but the better view would seem to be that it is relevant to prove the commission of the disputed acts. 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:

‘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.”^[45]

62. [62]
    In Hoch the evidence had been sought to be admitted on the basis it was evidence of offending that was strikingly similar to that of the other charged acts.  It was found to lack the relevant probative evidence as it was reasonably explicable on the basis of concoction between the several complainants.^[46]
63. [63]
    In Pfennig the majority, having referred to Hoch, stated that where the propensity or similar fact evidence in question is in dispute, as was the case here, “it is still relevant to prove the commission of the acts charged” but that the probative value of the evidence which “lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred” will be less than if the facts were not disputed.^[47]  However, the majority stated that because propensity evidence is “a special class of circumstantial evidence, its probative force is to be gauged in light of its character as such”.^[48]  Given that propensity evidence has a prejudicial capacity of a high order, the trial judge must “apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational^[49] view of the evidence that is consistent with the innocence of the accused”.^[50]  The majority stated that the principles in relation to the admission of evidence where that evidence was disputed were derived from Hoch, which was decided by reference to evidence of similar fact rather than propensity evidence.^[51]
64. [64]
    In Pfennig the majority noted that the probative value of evidence of similar facts, past criminal conduct and propensity varied not only between themselves but in relation to the circumstances of particular cases.^[52]  The differing nature of the evidence that may fall under the umbrella of similar fact evidence, and differing purposes for which such evidence is admissible, appeared to lead Sofronoff P and Henry J to outline a cohesive approach to be adopted in determining whether the similar fact evidence is admissible in McNeish, an approach adopted by Lynch SC DCJ.  In that case the Court of Appeal considered whether the trial judge had erred in not ordering a separate trial of the counts involving the oldest complainant on the ground that the evidence in her case was not cross-admissible in relation to the offences alleged against the other sisters.  The evidence of the sisters was disputed.  In dismissing the appeal, Sofronoff P and Henry J set out what a trial judge must consider when assessing the admissibility of evidence of uncharged acts against multiple complainants, namely:

“First, what is the factual issue that the Crown seeks to prove by the evidence? …

Second, having identified the tendency, it is necessary to decide whether the evidence, if accepted, would prove that tendency.

Third, it is necessary to consider whether the evidence of the uncharged acts, if accepted, contains some feature which links the doing of the uncharged acts with the 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. …

Fourth, and finally, 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.  In this context, “prejudicial effect” is constituted by the use of the evidence, by the jury, for an impermissible purpose.  It would be impermissible for a jury to use evidence of uncharged acts to reason that, because the accused is a discreditable person, the accused is guilty or is deserving of conviction irrespective of guilt.  It would be impermissible for a jury to reason that, because the accused is guilty of one offence then the accused must be guilty of the charged offence.  Other cases will present the potential for other kinds of impermissible reasoning.  In every case it is the risk of such impermissible reasoning that is the relevant “risk of prejudicial effect” that must be considered against the probative value of the evidence.” ^[53]

65. [65]
    The approach set out by Sofronoff P and Henry J has been adopted in two subsequent decisions of the Court of Appeal.^[54]  While McNeish sets out an approach to be adopted in cases of uncharged acts with multiple complainants, the test for admissibility which must be satisfied remains that confirmed by the majority in Pfennig.^[55]
66. [66]
    However, where there are differences in the nature of the offending the Court must not in its determining whether the evidence demonstrates the relevant tendency only focus upon the operative features of the offending.^[56]  This is because, at least where the evidence is advanced by the Crown to show a tendency on the part of the appellant to act in a particular way and with a particular state of mind, the evidence of tendency is not necessarily denied its relative strength if there are dissimilarities in the operative features because “there was no reason to think that that the accused was more likely to act on his sexual interest in young children in one particular manner than in another”.^[57]
67. [67]
    The real issue in the present appeal is whether the evidence has sufficient probative force to meet the common law test, rather than whether it establishes a relevant propensity.

Consideration

68. [68]
    The appellant contends the present evidence should have been excluded because it was of no greater probative value than the evidence of CC in the case of CDA which was found not to be cross-admissible and wrongly admitted.
69. [69]
    In CDA, the evidence of the appellant’s daughter CC was admitted on the basis of the similar features the offending against CC bore to the offending against three sisters to whom the charges against the appellant related.  The trial judge left CC’s evidence to the jury on the basis that her account made it objectively improbable that the accounts of the sisters and CC would have similar qualities unless the offending occurred.  Justice Henry delivered the primary judgement with which Mullins P and Bond JA agreed.
70. [70]
    The evidence of the three sisters which was accepted to be cross-admissible was evidence based on which Henry J considered that there “was clearly an underlying unity in that offending”^[58], namely sex offending upon three sisters whom the appellant had babysat and where there were various similarities between the sexual conduct.  In contrast, Henry J found that CC’s evidence (which was undisputed having resulted in a conviction of the appellant) lacked a strong degree of similarity, distinctiveness, underlying unity or connection to the offences against the three sisters, such that its probative force did not compel “the conclusion there is no reasonable view of them consistent with the innocence of the accused”.^[59]  In that case, the offending against CC was both remote in time and circumstance from the offending against the three sisters with no evidence of discrete instances of offending, particularly of touching of a sexual nature, which was the nature of the offending in respect of the three sisters.  CC’s evidence was of the offences of rape vaginally and anally with violence.
71. [71]
    While CC was of a similar age to the sisters, the sexual offending against CC was of quite a different nature and carried out in very different circumstances, five years after the offending against the three sisters.  The features of the offending against CC shared no commonality with the offending against the three sisters.  CC’s references to touching of a sexual nature which may have been of a similar nature lacked any detail, unlike the evidence of rape.  Henry J found that the fact that the sisters and CC were both under the appellant’s care lacked a strong degree of probative force given the contextual distinctions between the offending and its connections to the forms of care.  In one case the offender was the babysitter, and in the other case, the offender was the complainant’s step-father and lived with her permanently.  The offending was more serious and prolonged against CC than in the case of the sisters.  Henry J concluded that the offending against CC and the three sisters did not share in similarities so striking as to be beyond coincidence.
72. [72]
    In the present case, while there were differences in terms of the nature of the offending and the words said in relation to B, there were not the same contextual distinctions that existed in CDA.  The evidence of A and B bore greater similarity to the three sisters being babysat.  The offending occurred in similar circumstances, although the touching of a sexual nature involved was dissimilar.  The complainants were a similar age, the same sex, both went to stay with their step-grandmother and the appellant during school holidays some four months apart, the appellant was in same familial position with each complainant, both complainants had been playing in the sheds on the property prior to the offending, and in both cases the offending took place in or near the sheds when the complainants were alone with the appellant and without warning, while the step-grandmother was in each instance working inside the house.
73. [73]
    The case of CDA provides little assistance to resolving the question of whether the evidence of A and B was cross-admissible in this case.
74. [74]
    If A’s evidence was accepted it showed that:

    1. (1)
       the appellant had a relationship with A that gave him access to her on her own on the basis he was in a grandfather-like role due to his relationship with her step-mother;
    2. (2)
       A was pre-pubescent, albeit developing breasts;
    3. (3)
       the appellant was sexually attracted to A;
    4. (4)
       the appellant was prepared to use his position of trust while looking after A on his own to gratify his sexual desires; and
    5. (5)
       the appellant felt secure enough to breach his position of trust even with A’s step-grandmother at the house.
75. [75]
    The fact that the touching only occurred on two occasions described by A in similar circumstances and with similar actions by the appellant does not necessarily mean that it is insufficient to establish a propensity or tendency.  While a greater pattern of behaviour might be necessary to show a propensity, there is no hard and fast rule or bright line.^[60]  It depends on the circumstances.  For instance, the evidence of one instance of offending against a complainant was not regarded as insufficient for it to be admitted as evidence of propensity in R v Thomson.^[61]  Similarly, one other incident of abduction and sexual assault was sufficient for evidence to be admitted as propensity evidence in Pfennig, although the evidence in that case was undisputed with a number of surrounding facts supporting its probative force.^[62]  In the present case, the nature of the offending is in the circumstances outlined above, sufficient to establish a propensity or tendency to act upon a sexual interest in young girls in a relationship of trust where they can be taken advantage of albeit with a risk of detection.
76. [76]
    In the present case there were a number of similarities insofar as in each case of A and B which demonstrate the specific connection between the two sets of offending and the high degree of cogency necessary to establish the evidence had strong probative force for it to be admissible, namely:

    1. (1)
       the complainants had the same family connection with the appellant, being his step-grandchildren;
    2. (2)
       they were of similar age and the same gender;
    3. (3)
       they were staying at their step-grandmother and the appellant’s property in school holidays away from their parents and siblings;
    4. (4)
       they were playing in proximity to the appellant in the sheds while their step-grandmother was working in the house;
    5. (5)
       their step-grandmother was present on the property;
    6. (6)
       the offending occurred while the complainants were alone with the appellant away from the house near the sheds;
    7. (7)
       the offending involved sexual touching and was non-penetrative and occurred while A and B were dressed;
    8. (8)
       the offending occurred without prior warning with the appellant holding A and B respectively while he engaged in the sexual act; and
    9. (9)
       the offending took place within a short time, between about 20 December 2018 and 4 January 2019.
77. [77]
    The similar features were relevant to the propensity or the willingness of the appellant to act upon it showing an underlying pattern in the features of offending.

78. [78]
    While the nature of the touching was hardly something unremarkable in sexual offending against young victims, the engagement in such behaviour when the appellant was in a familial position such as a step-grandfather is a distinctive feature of the offending such that someone with such a propensity is more likely to have acted upon it than other men where he had proximity to the young females in the circumstances in which he did.^[63]
79. [79]
    Any assessment of the probative force of the evidence must have regard to the dissimilarities in the offending, as well as the fact that the evidence was disputed. There were dissimilarities between the nature of the touching which occurred against A as opposed to B.  There is also the fact that the offending against B involved an escalation both in the nature of touching with the appellant’s penis and in the appellant telling B she would be in a lot of trouble if she told anyone.  However, in the context of the evidence being admitted to demonstrate the propensity of the appellant, those differences do not reduce the strength of the evidence in proving that it was more probable, and excluding reasonable doubt, that the appellant had acted on that propensity in breach of trust in respect of girls of a similar age bearing the same relationship with him and engaged in sexual non-penetrative touching.

80. [80]
    The evidence of offending against A increases the probability of the offending against B having occurred and the evidence of B increases the probability of A’s evidence being true, and in each case the improbability of their respective evidence of the offending being an implausible lie.  The evidence has strong probative force which outweighs its undoubted prejudicial effect in the circumstances to justify its admission.
81. [81]
    With the greatest of respect to McMurdo JA, I cannot agree that the evidence of A in relation to the offences of B lacked the strong probative force to make it admissible as a matter of law.  While it is true that the prosecutor did not seek to admit the evidence in the pre-trial application on the basis of it being strikingly similar so as to be admissible as similar fact or coincidence evidence, the respondent before this Court stated that the evidence should have been sought to be tendered both as similar fact evidence and propensity evidence, but given the decision of this Court in WBN was bound by the basis upon which it had been tendered.  In any event the evidence must be of sufficient probative force to be admitted as propensity evidence where similar features are a relevant part of that assessment but not a necessary precondition.
82. [82]
    Unlike his Honour I consider the evidence of propensity to engage in touching of a sexual nature in the circumstances in which it occurred demonstrated by A’s evidence was sufficiently connected with the offending against B which bore a number of similar features beyond those of general sexual offending to give it the requisite degree of cogency.  In order to be admissible, it was not, however, necessary that the evidence of A bore a “striking similarity” to the evidence of B as would be required if it was sought to be admitted as evidence of similar fact or coincidence which was the case in Hoch.  That does not belie the fact that evidence of similarities or unity of offending is relevant in determining whether it has the requisite probative force.  Although Hughes was decided by reference to the less onerous test for tendency in the uniform evidence legislation, the logic of the reasoning applies in terms of the assessment of cogency.^[64]  As was found by the majority, there was no reason to think that an accused was more likely to act on his sexual interest in young children in one particular manner rather than the other.^[65]  Thus the absence of similarity of the “operative features” of the uncharged acts did not necessarily deny the tendency evidence of its relative strength.^[66]
83. [83]
    In the present case it was in issue whether the offences had occurred at all.  Proof of a sexual interest upon which the appellant was willing to act was probative of that issue.  That is not to understate the need for connecting features between the two sets of offending to meet the requisite common law test, as opposed to the different test applied where there is a form of the uniform evidence legislation in force, and that care must be taken not to elevate similarities which have no bearing on the propensity sought to be established by the evidence in question.  In the present case the difference in the sexual nature of the offending and the threats made to B did not reduce the probative force of the evidence of A as evidence of a sexual interest in young girls of the age of A upon which he was willing to act when the girls were alone in his care, having built up trust with the benefit of being in a relationship like a grandfather and notwithstanding the proximity of the girls’ step-grandmother in the house.  Given the acts occurred after A and B had each spent some time playing while with the appellant in the sheds, where trust was built up, the offending was more than merely opportunistic.
84. [84]
    The tendency to act in those circumstances, where there was a similar pattern of offending and a number of similar features (albeit the offending involved different acts), did make the evidence of A particularly distinctive with a reasonably close temporal connection and directly related to the account of B, to demonstrate it had strong probative force which outweighed its prejudicial effect notwithstanding it was disputed.  In order to satisfy the Pfennig test it did not have to be shown that the evidence on its own was sufficient to establish guilt.  The evidence of A demonstrated a relevant propensity to commit an offence of the type with which the appellant was charged in relation to B and increased the improbability that B’s evidence was untrue.  If A’s evidence was accepted as true it was evidence of sexual offences having occurred with no rational view of the evidence of A consistent with the innocence of the appellant of B’s charge, when considered in the context of the prosecution case.  The circumstances of the complaints and similar features demonstrated that the evidence of A’s uncharged acts was more than evidence of propensity to offend against female children in circumstances of control and risk of exposure.  There is a clear underlying unity between the acts complained of by A and B, which increases the improbability that if A’s evidence is accepted the account of B is true.
85. [85]
    I consider Lynch SC DCJ was correct in concluding that A’s evidence, if accepted, was of touching of a sexual nature.  While the appellant had raised the prospect that the touching of A could have been capable of innocent explanation, the description of the offending was clearly sexual in nature.^[67]  Notably it was not suggested to A or B in cross-examination that touching had occurred by accident or innocently.  Rather, it was suggested that the only time that the appellant had touched A on the chest was when he was tickling her or throwing her in the pool and that he had never rubbed her “boobs”.  The evidence of A as evidence of uncharged acts did have a specific connection to the offending against B and showed a propensity to have and act upon a sexual interest in young girls when given the opportunity after spending time to build up trust with them.  If A’s evidence was accepted by the jury it made it highly improbable that the events against B had not occurred.  In the circumstances, the learned judge was correct in considering that the evidence of A would eliminate any doubt that might be left by the evidence for the charge involving B, with no reasonable view of them consistent with the innocence of the appellant.  The learned judge was also correct in concluding that any prejudicial effect could be managed through appropriate directions.  As pointed out by McMurdo JA, such an assessment is not made on a collective basis of grouping all complaints together but rather, as his Honour did, required the primary judge to determine that there was no rational view of the uncharged evidence other than demonstrating the guilt of the offence charged.
86. [86]
    While Lynch SC DCJ’s reasons as to the basis on which he considered there was a link between the uncharged acts and the charged acts and the factors supporting the probative force to justify the admission of evidence under the common law test were reasonably scant, his Honour applied the correct test in determining the evidence was cross-admissible.
87. [87]
    His Honour did not err in determining that there was a sufficient basis to conclude that the evidence was cross-admissible applying the common law test.  No other basis was raised by the appellant upon which the offences should have been severed on the indictment.  Grounds 1 and 2 of the appeal are not established.

Directions – summing up – ground 3

88. [88]
    As to the directions given in the summing up, the appellant contends that the trial judge:

    1. (1)
       omitted the cautionary aspects of the direction to the jury to guard against a risk of collusion; and
    2. (2)
       did not direct the jury that the prosecutor’s closing address framed the evidence impermissibly in terms of coincidence rather than the evidence being confined to evidence of tendency when considering each of the charged acts which was the basis of its admission.
89. [89]
    No redirection of his Honour’s summing up was requested by either the Crown or defence.
90. [90]
    While section 132A of the Evidence Act provides that similar fact evidence in a criminal proceeding where the probative value outweighs the prejudicial value is not to be ruled inadmissible on the ground that it may be result of collusion or suggestion, and that the weight of the evidence is a matter for the jury, that does not exclude the importance of an appropriate direction being given to the jury where the circumstances of the case call for it.^[68]  As was noted by the majority in Hoch, evidence of collusion provides a rational view of similar fact evidence inconsistent with guilt and the improbability of the complainants having concocted similar lies, thus destroying the probative value of the evidence.^[69]  Such a direction is provided for in the Supreme and District Courts Criminal Directions Benchbook (the “Benchbook”) where evidence is being admitted on the basis of similar fact or propensity evidence.^[70]
91. [91]
    Although no redirection was sought for the giving of such a warning by counsel, the appellant’s counsel contends it was a fundamental obligation of the trial judge in a case such as the present given A and B were sisters who lived together.  Those circumstances could well call for such a direction to be given, even when the evidence is being admitted to prove propensity rather than as similar fact evidence.  While directed to similar fact evidence rather than propensity evidence, where similarities in the evidence of the complainants is relevant to the probative nature of the evidence, any suggestion of collusion could require such a direction to be given.
92. [92]
    However, such a direction does not need to be given as a matter of course. In R v Wickson (“Wickson”),^[71] no direction as to the possibility of concoction had been given.  In considering whether the trial direction had erred Keane JA stated:

“... While it is true that the jury should be warned of the risk of concoction if it is necessary to do so to ensure a fair trial of the charges against an accused person, it is not necessary for the judge to give such a warning to the jury in every case where similar fact evidence is relied upon by the Crown. The authoritative statements in the passage from Hoch v The Queen on which the appellant seeks to rely make it clear that the risk of concoction is not invariably a “problem” with similar fact evidence. Whether such a problem exists is a matter for the experience and common sense of the trial judge. The real question is whether the learned primary judge erred in failing to perceive that, as a matter of common sense and experience, there was such a problem in the circumstances of this case.”^[72]

93. [93]
    While the facts in Wickson were quite different from the present case, notwithstanding the reliance upon similar features to support the probative force of the cross-admissible evidence, there was no evidence at the trial raising a risk of collusion.  Although A and B did live together, they raised complaints about the appellant’s conduct at different times.  A had complained about the appellant’s conduct to her step-grandmother soon after it occurred whereas B did not tell anyone until asked in April, some months later.  While asked in cross-examination whether they had spoken about the conduct with the other, which each denied, it was not put to either A and B that they had spoken to each other about their evidence and sought to concoct a story.
94. [94]
    In the circumstances of this case, the risk of collusion was not raised on the evidence as a real possibility and the learned trial judge did not err in failing to perceive that, as a matter of common sense and experience, there was a problem in the circumstances of the case requiring a direction to be given.
95. [95]
    As to the failure to direct the jury that the prosecutor’s closing address framed the evidence impermissibly in terms of coincidence rather than the evidence being confined to evidence of propensity, which was the basis of the admission of the uncharged acts, the prosecutor did refer to the “fourth reason” as to why the jury should be satisfied beyond reasonable doubt as there being “striking similarities between the offences committed against each [A] and [B].”^[73]  Those striking similarities were then outlined.  However, having done so, the prosecutor then stated that:

“In my submission to you, ladies and gentlemen, when you consider the accounts of [A] and [B] together, they make a few things clear.  Firstly, not only did [the appellant] have a sexual interest in prepubescent girls, but when given the opportunity to act on that he did so.  Secondly, you might think that, if you accept the evidence of both [A] and [B], that it showed a natural progression of his offending.”^[74]

96. [96]
    The learned trial judge in his summing up directed the jury consistently with the basis upon which the evidence of the uncharged acts was admitted, namely propensity not similar fact or coincidence.  Relevantly his Honour stated that:

“In this case, there is reliance by the prosecution as the – on the charges – as amounting to circumstantial evidence supporting the other charged acts.  …

If you accept the evidence of [B] beyond reasonable doubt that the defendant touched her in a sexual way, as she alleges for count 3, that might make [A]’s allegations about counts 1 and 2 more likely to be true because it might show the defendant had a sexual interest in female children in his care.  That’s what the prosecution generally argue is going on here.  However, before you may use the evidence of [B] in that way, you have to be satisfied beyond reasonable doubt of two propositions.  Firstly, that the defendant did touch [B], as is alleged for count 3, and secondly, that that proposition – his touching [B] in count 3 – does show that the defendant had a sexual interest in female children in his care. …

When you’re considering whether the charge relating to [B] is proven, the evidence of [A] may be of use to you in the same way.  But her evidence may only be used as it relates to the credibility and reliability of [B]’s account.  Again, if you accept the evidence of [A] beyond reasonable doubt that the defendant touched her in a sexual way, as she alleges for counts 1 and 2, that might make [B]’s allegations supporting count 3 more likely to be true because that might show that the defendant had a sexual interest in female children in his care. 

Again, before you use the evidence of [A] in that way, you have to be satisfied beyond a reasonable doubt (a) the defendant did touch [A], as is alleged for counts 1 or 1 [sic], and (b) that showed that the defendant had a sexual interest in female children in his care.  Unless you are satisfied beyond a reasonable doubt of both of those propositions, the evidence of [A] of the defendant touching her, as is alleged for counts 1 and 2, has no relevance to whether count 3 is proven to have occurred.”^[75]

97. [97]
    In providing a summary of the prosecutor’s summing up, his Honour stated, amongst other things, “[h]e argued that taken together their evidence is very strong; the defendant clearly had a sexual interest in the children and did act upon it.”^[76]
98. [98]
    It is submitted on behalf of the appellant that when the prosecutor framed the evidence in terms of coincidence the trial judge should have directed the jury that that was impermissible given the pre-trial ruling or, alternatively, instructed the jury in full as per the Benchbook in relation to coincidence evidence.  In the appellant’s submission, the features referred to by the Crown prosecutor as “striking similarities”, such as the complainants being clothed, say nothing about the particular propensity, nor could the lack of words used.  The appellant’s counsel conceded that the girls’ appearance, the like nature of their relationship to the appellant and the location of the offending probably have some relevance to propensity.  According to the appellant, the prosecutor’s address invited the jury to compare the two accounts in terms of the practical modus operandi that they described and asked the jury to infer guilt from supposed similarity.
99. [99]
    The respondent, however, submits that the appellant’s argument is misconceived as it proceeds from the flawed premise that similarities are only relevant to uncharged acts admitted on the basis of similar fact rather than propensity.  According to the respondent, whilst the existence of certain similarities may not be required in a direct sense for the admission of the uncharged acts, there must still be sufficient similarity which is capable of evidencing the relevant tendency.  The respondent submits it was necessary for the jury to have the similarities said to inform the appellant’s modus operandi before they could engage in propensity reasoning.
100. [100]
     The reference by the prosecutor to “striking similarities” was infelicitous, however, reference to the similarities was not irrelevant to the process which had to be undertaken by the jury in considering the evidence of propensity and the willingness of the appellant to act upon it.^[77]  The prosecutor linked the similar features of the offending to demonstrating a propensity of the appellant based on his having a sexual interest in girls and given the opportunity did so act and did not submit to the jury that the similarity in the offending described by A and B made it highly improbable that the events occurred by chance, consistent with it having been admitted as propensity evidence.  His Honour’s direction as to the use of the evidence avoided the possibility of the jury being led into error by impermissible reasoning.  In not referring further to the similarities in his direction as to how to use the evidence of the uncharged acts, his Honour avoided perpetuating any confusion by the jury by reference to similarities and ensured that the jury was not misled as to the way in which the evidence was to be used by engaging in reasoning that because of the similarity of the accounts described they must be true, particularly given the warning to the jury that:

“… you cannot reason that because [A] makes the allegation of the defendant touching her, as is alleged in counts 1 and 2, that the defendant must therefore be guilty of count 3 or that he is a person of bad character, and therefore the type of person likely to commit the offence charged as count 3.”^[78]

101. [101]
     Had his Honour given the direction as to the use of similar fact evidence as proposed by the appellant he would have misdirected the jury by directing them as to a use of the uncharged acts on a different basis than it had been admitted.^[79]  Given the similarity of features between the offending had been raised when the application for the admission of the evidence on the propensity basis was argued, the defence was not placed at a disadvantage by the respondent’s address and understandably did take issue with it before the trial judge.
102. [102]
     This ground of appeal also fails.

Other matter

103. [103]
     The respondent raised two arguable deficiencies in the directions given by the learned trial judge in the summing up, neither of which were raised as grounds of appeal.  The respondent raised them as a model litigant but contended that neither deficiency caused a miscarriage of justice.  As they were not pursued as a ground of appeal it is not necessary to consider them further.
104. [104]
     The orders of the Court should be:

3. 1.
   The appeal is dismissed.