R v LBE[2024] QCA 53

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant was charged on the one indictment with 20 counts of sexual offending against five separate complainant children.  On a pre-trial application to sever the indictment so as to obtain separate trials with respect to each complainant, the principal question for the learned primary judge was whether the evidence of each complainant on the counts concerning them was cross-admissible in relation to the counts concerning the other complainants.  The primary judge found that counts 1 to 17 involving three separate child complainants should be heard together and the remaining counts involving two other children should be tried separately.^[1]
2. [2]
   At a jury trial of counts 1 to 17 before another judge, the appellant was found guilty of nine counts of indecent treatment of a child and one count of rape, variously involving each of the three complainants.
3. [3]
   The appellant appeals against his convictions on two grounds:

   1. Ground 1: that there was an error in the pre-trial refusal to order a separate trial with respect to counts 1 to 13 on the indictment; and
   2. Ground 2: that a miscarriage of justice was occasioned by the prosecutor relying on coincidence reasoning with respect to the cross-admissibility of the evidence between complainants.

The reasons of the primary judge

4. [4]
   The pre-trial application was determined on the basis of the recorded statements of a number of children.  Counts 1-13 related to a boy, aged between five and seven years at the time of the offending (A).  Counts 14-15 related to a second boy, aged between six to eight years (B).  Counts 16-17 related to a third boy, aged between eight and ten years (C).
5. [5]
   The offending took place at the appellant’s home in connection with a childcare business he operated at his home, similar to an after-school care program.
6. [6]
   The primary judge summarised the position in a way which was not the subject of criticism before this Court.^[2]  We therefore adopt it as a fair summary of the facts at the time of the application.  His Honour said:

“[3] The applicant was aged between 46 and 50 years during the period of the charges. He was known to the complainant children and their families. He had been employed as a teacher aide at a local school in the region. He had previously been program coordinator at an after-school care program being run out of the local State School hall. In 2013 he left that program and commenced his own after-school care program from his home. In this way, the acts giving rise to the charges occurred while the children were under his care.

[4] Counts 1 to 13 concern [A]. There are six charges of indecent treatment by exposing the child to an indecent act; one of indecent treatment by procuring an indecent act; one of indecent treatment by exposing the child to a pornographic film; three of indecent treatment of a child under 12 under care by touching the complainant’s penis; one count of rape by inserting the penis into the anus and one count of attempted anal rape. As outlined by the applicant’s counsel, the allegations occurred when [A] stayed at the applicant’s home on several occasions when he was between the ages of five and seven years. The complainant said that on the very first occasion he stayed at the applicant’s house overnight, the applicant put his ‘willy’ in his ‘bum’. On another occasion the applicant tried to put his ‘willy’ into his ‘bum’. On another occasion when another child, K, was present, the applicant was seen masturbating. On another occasion when K and another child were present, the applicant put on a sexual movie and touched his own penis. Another occasion involved the applicant organising young boys to have a pillow fight while they were naked.

[5] Counts 14 and 15 concern [B]. They are two counts of indecent treatment of a child under 12 under care involving touching the child’s penis over the top of his clothing. The child said this happened on two occasions when he was lying in the applicant’s bed. Other boys were in the house at the time. In common with other complainants, [B] said that he slept in the defendant’s bed with the defendant. [B] was aged between six and eight years at the time of the acts giving rise to the charges.

[6] The complainant in Counts 16 and 17, [C], was aged between eight and ten years when the alleged offences occurred. They are two charges of indecent treatment of a child under 12 under care that involve the child, having fallen asleep in bed with the defendant, waking to the defendant touching his penis under his clothing.”

7. [7]
   When the application was made, the Crown advanced cross-admissibility on several grounds, including: (i) that it showed the appellant had a particular sexual proclivity, (ii) to negate the suggestion of concoction or invention, (iii) because it rationally affected the assessment of the existence of a fact in issue, namely whether the offences occurred, and (iv) it demonstrated that it was objectively improbable that the complaints’ evidence was false.^[3]
8. [8]
   In concluding that the evidence of each of complaints A, B and C was cross-admissible and, therefore, that counts 1 to 17 were properly tried together, the primary judge held:

“[9] Because it may be highly prejudicial to an accused person charged with an offence, particularly a sexual offence, for the jury to hear evidence of other unlawful conduct, the other evidence may be admitted only if it possesses a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the guilt of the accused of the charged offence. I have been helpfully referred by counsel to relevant parts of Pfennig v R (1995) 182 CLR 461, Phillips v R (2006) 225 CLR 303, R v CBM [2014] QCA 212, The Queen v Bauer [2018] HCA 40, R v McNeish [2019] QCA 191 and R v Nibigira [2018] QCA 115.

[10] There is an underlying unity in the evidence, particularly that which concerns Counts 1 to 17. Having established the child minding arrangements, the applicant took advantage of the access gained to boys aged between four and ten years to commit a range of sexual offences. The evidence of each child shows the applicant to have an unusual sexual interest in boys that he is prepared to act on, although the particular act might vary according to opportunity or nature of relationship. The evidence of each child with respect to Counts 1 to 17, taken with all the evidence relating to a particular charge within the group, admits of no rational inference other than the guilt of the defendant on the particular charge.”

9. [9]
   His Honour plainly held that the evidence was admissible on the basis that it demonstrated a particular propensity on the part of the appellant.  As further discussed below, however, there was no limitation placed on the use that could be made of the evidence.

Ground 1 – refusal to sever the indictment

10. [10]
    The success or failure of the first ground of appeal turns on whether the primary judge erred in concluding that the evidence was cross-admissible.^[4]  In order to resolve that question, it is necessary first to identify, with some precision, the relevant test for admissibility of such evidence.

The Pfennig test for admissibility

11. [11]
    Viewed from the perspective of its admissibility at the trial of the counts involving the alleged offending against any one complainant, the evidence of the other complainants is disputed circumstantial evidence which discloses the commission of offences other than those under consideration in respect of that one complainant.  It is convenient to refer to the evidence of the other complainants as the impugned evidence.
12. [12]
    The courts have recognised the prejudicial effect of such evidence for an accused at trial and have formulated an onerous test of admissibility in respect of such evidence.  Mere relevance of such evidence is an insufficient justification for its admissibility.  In order that it be admissible a particular evaluative assessment must be made of its probative force.  In Phillips v The Queen,^[5] the High Court identified the various ways in which this “fundamental aspect of the requirements for admissibility” have been expressed:

“The ‘admission of similar fact evidence … is exceptional and requires a strong degree of probative force’^[6]. It must have ‘a really material bearing on the issues to be decided’^[7]. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’^[8]. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind’^[9]. The criterion of admissibility for similar fact evidence is ‘the strength of its probative force’^[10]. It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence ^[11]. The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused’^[12]. Admissible similar fact evidence must have ‘some specific connection with or relation to the issues for decision in the subject case’^[13]. As explained in Pfennig v The Queen:^[14]

‘[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.’”

13. [13]
    Of course, these statements are of little assistance as tests for admissibility.  When will probative force be sufficiently strong as to “clearly transcend” prejudicial effect?  How high is “sufficiently high” and how great is “sufficiently great”?  When will the nexus be a “sufficient nexus”?  When is a connection “specific” or cogency “significant”?
14. [14]
    The common law does, however, permit a test for admissibility of the impugned evidence to be stated so as to provide the answer to those questions.  The test has two aspects: the impugned evidence must be relevant and it must have sufficient probative force that when it is considered along with the other evidence, there remains no reasonable view that is consistent with the innocence of the accused.
15. [15]
    First, the impugned evidence must be relevant.  As to this, the following observations may be made:

    1. There is no doubt as to the proper conception of “relevance” as a matter of first principle.  Evidence is relevant where it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding, noting that evidence can rationally affect the assessment of that probability indirectly, by assisting in the evaluation of other evidence.^[15]
    2. However, a propos evidence of the nature presently under discussion, various more specific attempts have been made to describe how it may be relevant.
    3. In Pfennig v The Queen, Mason CJ, Deane and Dawson JJ said:^[16]

“There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive.”

4. In R v McNeish,^[17] Sofronoff P and Henry J suggested, without limitation, these possible ways to describe such evidence:
   1. Evidence said 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. Evidence said 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. Evidence said 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. Evidence admitted to identify the offender.
   5. Evidence admitted as circumstantial evidence that an offence has been committed and the accused is the offender.

But they also observed that whilst legal jargon may be useful as shorthand to convey a complicated idea in a single word or phrase, it is essential not to permit jargon to obscure principle.

5. And although the Uniform Evidence Acts adopt a standard of admissibility which is not applicable in Queensland,^[18] they categorise such evidence as “tendency” or “coincidence” evidence.^[19]  Tendency evidence is described as evidence which is said to be probative of an accused having a tendency to act in a particular relevant way, or a tendency to have a particular relevant state of mind.  Coincidence evidence is described as evidence that two or more events occurred which is led to prove that the accused did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, it is improbable that the events occurred coincidentally.

16. [16]
    Second, the impugned evidence must have sufficient probative force that when it is considered along with the other evidence, there remains no reasonable view that is consistent with the innocence of the accused.^[20]  Unless this evaluation can be made, the evidence must be excluded.  However, these important further observations must be made:

    1. This evaluative assessment of the probative force of the impugned evidence must not be of the impugned evidence, standing alone.  Rather the impugned evidence must be assessed in the context of the prosecution case on the charges for which it is sought to be tendered and on the assumptions that (1) the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury and (2) the impugned evidence would be accepted as true.^[21]
    2. This requirement was further explained by Hodgson JA in R v WRC^[22] in terms which have been approved in the High Court^[23] and often cited in this Court:^[24]

“Plainly, [the discussion in Pfennig at (1995) 182 CLR 461, at 482-483 of propensity evidence being regarded as a class of circumstantial evidence the admissibility of which is governed by its ability to exclude any rational view of the evidence consistent with the innocence of the accused] does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd (1990) 170 CLR 573; 51 A Crim R 181; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.

On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence.

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.”

The application of the Pfennig test

17. [17]
    Although the test may be concisely stated, its application is often difficult.
18. [18]
    The label which is placed on the impugned evidence is not the important consideration.  The important consideration is the clear identification of how the impugned evidence is said to be relevant, so as to permit the requisite evaluative assessment of its probative force when tendered for that purpose.  And, it hardly needs be added, so that the impugned evidence may be dealt with properly in directions to the jury by the trial judge.
19. [19]
    In R v McNeish, Sofronoff P and Henry J engaged in an extensive discussion of what a judge considering evidence of uncharged acts against multiple complainants might consider.^[25]  Adopting the logic underpinning the test for admissibility explained in Hughes v The Queen,^[26] accepted as equally applicable under the common law, their Honours posed four questions for a judge to consider in this context:

    1. First, what is the factual issue that the Crown seeks to prove by the evidence?
    2. Second, having identified the tendency, it is necessary to decide whether the evidence, if accepted, would prove that tendency?
    3. Third, it is necessary to consider whether the evidence of the uncharged acts [or charged acts, against another complainant], 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; and
    4. 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.^[27]
20. [20]
    Although the four questions posed in R v McNeish are sometimes said to amount to a test of admissibility, they should not be so regarded.  As Brown J (with whom Morrison JA agreed) observed in R v YF after having discussed R v McNeish, the test for admissibility remains that confirmed by the majority in Pfennig.^[28]
21. [21]
    The discussion in the majority judgment in R v McNeish is better regarded as a discussion of judicial methodology which may assist in the application of the Pfennig test in some cases.  The first and third of the four questions are aimed at ensuring a rigorous identification and consideration of the purpose of the tender, namely of the purported relevance of the impugned evidence.  The second and fourth questions are the questions aimed at the requisite evaluation of the probative force of the evidence tendered for the identified purpose.  Those questions should not, however, be treated as a sufficient statement of what is required in that respect.  Pfennig itself regarded the issue posited in the fourth question as of “little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused.”^[29]  The test to be applied remains that articulated by the High Court in Pfennig, which we have endeavoured to articulate above.

Consideration

22. [22]
    Against that background, the question on the first ground of appeal is whether the primary judge erred in concluding that the impugned evidence was cross-admissible and, accordingly, erred in dismissing the application to sever in respect of the three complainants involved in the counts on which the appellant was convicted.
23. [23]
    The central paragraphs of the primary judge’s reasons bear repetition:

“Because it may be highly prejudicial to an accused person charged with an offence, particularly a sexual offence, for the jury to hear evidence of other unlawful conduct, the other evidence may be admitted only if it possesses a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the guilt of the accused of the charged offence. …

There is an underlying unity in the evidence, particularly that which concerns Counts 1 to 17. Having established the child-minding arrangements, the applicant took advantage of the access gained to boys aged between four and ten years to commit a range of sexual offences. The evidence of each child shows the applicant to have an unusual sexual interest in boys that he is prepared to act on, although the particular act might vary according to opportunity or nature of relationship. The evidence of each child with respect to Counts 1 to 17, taken with all the evidence relating to a particular charge within the group, admits of no rational inference other than the guilt of the defendant on the particular charge.”^[30]

24. [24]
    Those paragraphs reveal first an identification of the basis on which the primary judge found the evidence to be relevant, namely that it showed “the applicant to have an unusual sexual interest in boys that he is prepared to act on, although the particular act might vary according to opportunity or nature of relationship.”  That part of the primary judge’s reasoning cannot be criticised.  It addressed what we have identified as the first aspect of the applicable test.  The evidence was obviously relevant on that basis.
25. [25]
    The critical consideration, however, was the evaluation of the probative force of the evidence.  The primary judge’s reasons did not explicitly reveal how he went about that evaluation.  However, it is implicit in both paragraphs of the reasons (and in particular the parts that we have emphasised) that he evaluated them in a manner consistent with what we have identified as the second aspect of the applicable test.
26. [26]
    Before this Court the appellant did not advance any argument which rigorously sought to explain why that evaluation of the probative force of the evidence was wrong, by reference to the appropriate test for the evaluation.  In particular, he did not seek to explain to this Court why, if the impugned evidence was considered along with the other evidence and on the assumptions which are required to be made, there would remain a reasonable view that was consistent with the innocence of the accused.
27. [27]
    In the present case, there is no reason to reach that conclusion.
28. [28]
    The evidence of each of A, B and C contained elements which were the same or similar in each case:

    1. the alleged offending conduct in A’s case included touching his penis (but also getting A to participate in a naked pillow fight, showing him a pornographic video, anal rape and attempted anal rape); in B’s case, it was touching of the penis over his clothes; in C’s case, it involved touching his penis under his clothes;
    2. in each case the relationship between the appellant and the boys was that they were under his care as part of his babysitting and childcare arrangements, and sleeping over at his house;
    3. A was between five and seven years old, B between six and eight years old, and C between eight and ten years old;
    4. the appellant knew the boys and their families;
    5. there was a crossover of the time periods of the offending conduct: A was between January 2014 and September 2018, B was between January 2013 and October 2016, and C was between December 2014 and January 2018;
    6. in each case the offending conduct occurred in the appellant’s home;
    7. in each case the offending conduct occurred while the boy was in the appellant’s bed at night; in C’s case there was an additional allegation of conduct while in the shower; and
    8. in each case the boys referred to uncharged acts which involved each boy sleeping in the appellant’s bed at the same time as other boys, with the appellant always sleeping in the middle.

29. [29]
    The appellant contended that the allegations by A are different in character from those of B and C.  He submitted that A said the conduct was foreshadowed by the appellant asking him to engage in it, engaging in conduct in front of witnesses, and involved dramatically more serious sexual contact.  This was contrasted with the counts concerning B and C, which were said to be “quintessentially allegations of clandestine conduct with clothed boys on the genitals”.  The appellant’s contention was that the primary judge’s ruling erroneously omitted those features which, taken in their proper context, shattered the unity between all counts and constituted allegations of a disparate underlying character.

30. [30]
    Those submissions are rejected, for the following reasons.
31. [31]
    First, it is a mistake to conclude that the primary judge failed to take into account the differing nature of the allegations by A when compared to B and C.  In paragraph [4] of his Honour’s reasons,^[31] the primary judge set out the essential nature of the conduct concerning A.  On its face it is more expansive than the conduct in respect of B and C, set out in paragraphs [5] and [6] of the reasons.  Further, it is self-evident that the sexual conduct in respect of A differed from that in respect of B and C.  When his Honour expressed his finding that there was an underlying unity in the evidence, that finding was not made without taking into account the differing conduct.  His Honour synthesised that underlying unity saying that once the appellant had established his childminding arrangements, he took advantage of the access gained to boys of a particular age, to “commit a range of sexual offences”.  Self-evidently, his Honour took into account the different conduct but nonetheless found that there was an underlying unity in the evidence sufficient to make it cross-admissible.
32. [32]
    Secondly, the primary judge’s ruling does not define the limits of the matters that might be considered relevant to the consideration of cross-admissibility.  Equally relevant are the factors set out in paragraph [28] above.
33. [33]
    Thirdly, the probative value of the evidence lay largely in proof of the appellant’s tendency to act in an unusual way, that it is say, to act sexually in respect of young boys while they were in his care, in his house, and in his bed.  Further, the probative value lay in the proof of the appellant’s tendency to act on his sexual attraction to young boys.  That he did so in a variety of different ways does not deprive that evidence of its significant probative effect.^[32]
34. [34]
    As was said by this Court in R v YF:^[33]

“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.  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.  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.  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.”

35. [35]
    Fourthly, a significant feature of the evidence was that each complainant was subject to sexual offending by the appellant within the umbrella of a system of childcare which he set up in his own home.  Part of the childcare program established by the appellant involved young boys sleeping in the same bed as he did, with the appellant in the middle.  The evidence did not suggest that these were ad hoc arrangements made by the children, but a systematic approach instituted by the appellant.  As the primary judge noted, the appellant was known to the complainant children and their families.  With a history of running an afterschool care program prior to setting up his own homebased afterschool care program, the appellant took advantage of the trust reposed in him by the families and the three complainants.  That he did so in a variety of ways does not disturb the striking features that are common to all complainants.
36. [36]
    Fifthly, it must be borne in mind that the evidence was relied on on two bases, one being the coincidence of the circumstances of the offending against each complainant, and the other being tendency evidence.  On either basis, the admissibility of the evidence depends upon the objective improbability of its having some innocent explanation.^[34]  In evaluating the probative force of the evidence there may be different considerations, depending upon the purpose or use sought to be made of the evidence (that is, the basis on which it is said to be relevant^[35]).  Where the purpose is to remove implausibility (that is, coincidence reasoning), for example, there may be a greater focus on the need for a strong degree of similarity or underlying unity.  As it was explained in Pfennig (at 482), the strength of the probative force of such evidence lies in the fact that the evidence reveals:

“… ‘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.”

37. [37]
    This was reiterated by this Court in R v BEE,^[36] and in R v CDA, where Henry J observed:^[37]

“… in considering the objective improbability of some event having occurred other than as asserted by the prosecution it will not be enough, as it is under iterations of uniform evidence legislation in some other Australian jurisdictions, that the coincidence or combination of circumstances relied upon merely has ‘significant probative value’.  Rather, it must involve features of such a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion that there is no reasonable view of them consistent with the innocence of the accused.”

38. [38]
    In R v BEE, a strong degree of similarity or underlying unity was found to exist notwithstanding that there were differences in the offending, because of the accused’s method of arranging the complainants’ presence in his room, the provision of comfort and friendship to discuss problems, cuddling and the initial touching in a sexual way whilst under a blanket.^[38]
39. [39]
    But it is in the nature of this type of evidence that the bases for its relevance may overlap, as they did in this case.  The relevant issue in the case was whether the offences were committed.  The probative force of the evidence was principally in its sufficiency to establish that the appellant had a sexual interest in boys of the nature of that found by the primary judge and was prepared to act on it.  There was also a strong degree of similarity, or underlying unity, between the circumstances of offending against each complainant.  Such differences as existed between each complainant’s accounts of the offending against them, did not diminish the strength of either of those  considerations.  The evidence of each complainant, if accepted by the jury, was sufficient to justify conviction on each of the counts referable to that complainant, but if the jury had entertained a doubt, the impugned evidence, having established the relevant sexual interest in boys, and implausibility of coincidence, was such that, when it was added to the other evidence, would eliminate any reasonable doubt which might be left by the other evidence.
40. [40]
    The first ground of appeal must fail.

Ground 2

41. [41]
    The second ground of appeal was that a miscarriage of justice was occasioned by the prosecutor relying on coincidence reasoning with respect to the cross-admissibility of the evidence between complainants.  Leave to rely upon ground 2 was sought at the commencement of the hearing of the appeal.  The ground was formulated late, on the morning of the hearing, and there was no written submission from the appellant as to the point.  The Crown ultimately did not oppose the grant of leave and made submissions in relation to this ground.  Leave was accordingly granted to amend the notice of appeal.
42. [42]
    This ground of appeal was poorly expressed.  Ultimately, the appellant sought to persuade the Court that the trial judge should have:

    1. regarded the primary judge’s ruling as a ruling limiting the purpose for which the impugned evidence could be relied on at trial, such that it was unfair for the prosecution to rely on the evidence for any other purpose at the trial;
    2. stopped the prosecution from so doing and given appropriate directions to the jury that the evidence could not be relied on for any other purpose,

and that a miscarriage of justice had been occasioned by his failing to do so.

The summing up

43. [43]
    Although, as will be seen, the summing up placed emphasis upon propensity, the case was put to the jury by the Crown on a wider basis.  At the commencement of the Crown address the prosecutor said:^[39]

“Secondly, each complainant, so [A], [B] and [C], support each other.  The defendant had a propensity to act in a certain way.  He offended against them in a similar way, particularly touching on the penis in his bed when he cared for them.  The boys either didn’t know each other or they hardly interacted.  There is no evidence of collusion.”

44. [44]
    As is evident from that passage, the Crown were urging not only propensity but that the evidence went to remove the implausibility that might otherwise be attributed to the complainants’ accounts.
45. [45]
    Later in the address the prosecutor returned to the question of the impact of evidence from A, B and C, saying:^[40]

“Now, cases like this are sometimes called word on word.  Now, this trial is three words upon a word.  What is powerful here, members of the jury, is the similarities in how the defendant did these things to the boys.  It reveals that the defendant had a propensity to act a certain way.  So when you think about whether a complainant is telling the truth, you might think that he has a propensity to offend against prepubescent boys.

Now, firstly, all the boys were a similar age, between seven to 10, when they were cared for by [the appellant].  They are the same gender, boys.  The offending occurred in his home.  All the offending occurred while he was looking after them as his babysitter.  All the offending occurred in his bed, save for that naked pillow fight.  The defendant was usually sleeping in the middle.  There was a focus on the boys’ genitals.  So that propensity to act a certain way helps resolve some of the issues in this case.

So are [A] and [B] lying, as was put to them?  That wasn’t suggested to [C].  Now, it’s just fanciful that boys who either didn’t know each other or maybe hardly interacted would just say such similar things about the defendant.  The issue whether it was accidental touching by the defendant on [B], again, this can just be easily dismissed by you, if he acts a certain way, that he touches other boys on the penises.  That really tends against an accidental touching.

Similarly, [C] feeling the sensation of someone touching his penis when he was asleep.  Is it a dream?  Count 17, that the defendant was at the end of the bed and his hands were near the legs.  You know, again, was it the defendant who touched him?  Well, firstly, [C] clearly said it was the defendant that touched him, and you can safely conclude it was the defendant who touched him given that propensity evidence when viewed with [A’s] and [B’s] evidence that similar things were happening to them.

Now, there isn’t any suggestion that the boys colluded with each other.  In fact, there’s actually no evidence of that.  [B] told police in December 2016 in [town X]; [A] 7 October 2018 in [town Y]; and [C], 29 January 2019 in [town Z].  [C] and [A] only met the one time at [an address].  [A] doesn’t even remember [C]. [A] and [B] may have interacted, but it appears to be hardly at all.  And there’s not even any evidence that [B] and [C] have even met.”

46. [46]
    As is evident from that passage, whilst the central thrust of the Crown case was that the evidence established propensity, it was also relied upon as a foundation for believing the boys because the similar evidence eliminated implausibility or coincidence.
47. [47]
    Although the primary judge focused on propensity as the justification for cross-admissibility in the pre-trial ruling, the evidence was left on a wider basis to the jury.  In the course of the summing up the trial judge said:^[41]

“The prosecution relies on the evidence of each sexual offence alleged against the defendant in respect of each of the complainants in proof of the offences alleged against each of the other complainants.  That is, they rely on the evidence of [A] in proof of the case against the defendant concerning [B] and [C].  They rely on the evidence of [B] in proof of the case against the defendant concerning [A] and [C] and they rely on the evidence of [C] in proof of the case against the defendant concerning [A] and [B].  The way they do that is this: the prosecution alleges that the evidence in respect of each of the complainants demonstrates a tendency of the defendant to have a sexual interest in young boys upon which he was prepared to act, particularly when he had the opportunity when they were in his care.

The prosecution argues that the evidence relating to each boy makes it more likely that the defendant committed the offences with which he is charged in respect of each other boy.  Now, you can only use this evidence if you are satisfied beyond reasonable doubt that the defendant did act, as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant or boys, upon which he was willing to pursue, or demonstrates a propensity or tendency to engage in sexualised conduct with young boys, particular in circumstances where he had those boys in his care, in considering whether you are satisfied beyond reasonable doubt that such conduct – if you are satisfied beyond reasonable doubt that it did occur – considering whether you are satisfied beyond reasonable doubt that such conduct does demonstrate such a tendency or propensity to act in that way, you would also consider all the other evidence, particularly of the other children which might be contrary to the existence of such a tendency or propensity.”

Consideration

48. [48]
    The appellant’s contention relied upon the passage from the prosecutor’s address, set out in paragraph [45] above. It was contended that:

    1. the cross-admissible evidence was admitted only on the basis that it went to tendency;
    2. if it was to be admitted to be used for coincidence reasoning, the “wrong test” (for admissibility) was applied;
    3. the prosecutor did not foreshadow that she intended to rely upon the evidence as coincidence evidence; use for that purpose was improper;
    4. the defence was disadvantaged by that;
    5. the trial judge did not direct the jury about use of the evidence for coincidence reasoning; and
    6. that occasioned a miscarriage of justice.
49. [49]
    For a number of reasons we do not accept these contentions.
50. [50]
    First, the evidence was not admitted on a limited basis.  The Crown advanced its admission on a number of bases – see paragraph [7] above.  Whilst the primary judge may have focused on tendency, that does not mean the evidence was limited to that alone.  That defence counsel understood that might be inferred from the absence of any complaint that the prosecutor had overstepped the mark and the absence of any application for a redirection.
51. [51]
    Secondly, there is no different test for admissibility, depending upon the use sought to be made of the impugned evidence: the test that applies is the Pfennig test, as explained above.^[42]
52. [52]
    Thirdly, the prosecutor foreshadowed the use she intended for the evidence, on the pre-trial application.  That, in part, was as coincidence evidence.  So much was plain from the Crown’s outline on the application:

“29. The evidence of each complainant is relevant because it rationally affects the assessment of the probability of the existence of a fact in issue, namely whether the offences transpired. Accordingly, the similar fact evidence assists with the issue of the conduct/disposition of the applicant.

30. Joinder of the counts demonstrates that the offending is sufficiently similar in time and circumstance such that it is objectively improbable that five complainants, some of whom do not know each other, would make false allegations about sexual offending by the applicant. The features of their evidence are such that the only inference is that the offending transpired how professed by the complainants and the jury can properly have regard to them when assessing the entirety of the Crown case.”

53. [53]
    No evidence was led to establish that A, B and C knew each other, or had spoken to each other about their experiences or their accounts.  No such thing was put in cross-examination.
54. [54]
    Fourthly, contrary to the appellant’s submission, the trial judge did direct upon the use of the evidence as coincidence evidence.  The relevant passage from the summing up is set out in paragraph [47] above.  Of particular note is this part:

“The prosecution argues that the evidence relating to each boy makes it more likely that the defendant committed the offences with which he is charged in respect of each other boy.  Now, you can only use this evidence if you are satisfied beyond reasonable doubt that the defendant did act, as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant or boys …”

55. [55]
    The first sentence refers to the likelihood of the offences occurring to each boy by reference to the evidence of each other boy.  Then, in the second sentence, the conjunctive “and” was used to link two distinct matters, the first being that the appellant “did act, as that evidence suggests”, and the second being that the appellant had a particular sexual interest.  It is plain that his Honour was referring to the use of the evidence to negate the suggestion of improbable accounts by the boys.
56. [56]
    Fifthly, whilst the appellant submitted that the defence was disadvantaged in some way, no coherent explanation of that was advanced.  That defence trial counsel knew of the intended use of the evidence by the prosecutor is clear.  No objection was made at the time of the prosecutor’s address, no application to have the so-called misuse corrected, no application to discharge the jury, and no application for a redirection in the summing up.
57. [57]
    Sixthly, it is not enough to simply utter the words “miscarriage of justice” without demonstrating that it was reasonably possible that the alleged act or omission may have affected the verdict.
58. [58]
    In R v SDE,^[43] this Court adopted what was said by the High Court in Dhanhoa v The Queen,^[44]concerning what must be established to make out a miscarriage of justice:^[45]

“[22] The ground of appeal properly acknowledges that in the case of an alleged failure of a trial judge to give a direction, where no such direction was sought at trial, the appeal can only succeed if the failure to give the direction has resulted in a miscarriage of justice. The appellant must demonstrate ‘…that the direction should have been given and it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’.”

59. [59]
    In Baini v The Queen,^[46] Gageler J (as his Honour then was) referred to the miscarriage of justice ground and adopted what was said in Dhanhoa, saying:^[47]

“[54] The same approach was adopted by courts of criminal appeal in Australia.  The words ‘on any ground’ in para (c) of the common form criminal appeal statute ‘do not postulate the demonstration of error’ but rather ‘simply require that ‘something occurred or did not occur’ in the trial’.  The thing that occurred or did not occur in the trial may be an ‘irregularity’ falling short of a failure to observe some condition essential to a satisfactory trial – such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant.  In those circumstances, it has been accepted that the criterion in para (c) will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted.  Before Weiss, it also appears to have been accepted that, by establishing that the irregularity might have affected the conviction that actually occurred, the appellant would succeed not only in making out the criterion in para (c) but also in negating the application of the proviso.  In Simic v The Queen, for example, the irregularity that occurred in the trial was described as ‘a misstatement of an important matter of fact’.  After making clear that the onus of establishing a miscarriage of justice lay with the appellant, the Court said:

‘Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected.  Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one.  In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.’”

60. [60]
    The applicable test for whether a miscarriage of justice has occurred was recently restated by the High Court in HCF v The Queen:^[48]

“[2] Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity ‘is properly characterised as a ‘failure to observe the requirements of the criminal process in a fundamental respect’ then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial’, but otherwise there is no miscarriage unless the error or irregularity is ‘prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict ... or ‘realistically [could] have affected the verdict of guilt’ ... or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’’.”

61. [61]
    The appellant was unable to articulate what was said to be the absent proper direction, beyond saying that the trial judge should have directed the jury’s attention to how the offending conduct for counts 1-13 (complainant A) was different from that for the remaining counts (complainants B and C).^[49]  But the trial judge did that when identifying the individual counts. The disparity in conduct was something that was obvious to the jury.  So, too, was the fact that there were similarities in the accounts – see paragraph [28] above.
62. [62]
    It may be safely inferred that the jury were paying attention on a count-by-count basis as they acquitted the appellant on counts 1, 4-6, 9 and 12-13.
63. [63]
    The appellant’s submission also failed to come to grips with why defence counsel would want the trial judge to again go over the offending conduct to highlight how counts 1-13 were different from counts 14-17, but all in the context that A, B and C did not know each other and there was no suggestion of concoction.  That would have served to entrench the unlikelihood of the complainants giving false accounts.  One can therefore well understand the decision not to seek the redirection postulated.
64. [64]
    Further, if the trial judge directed on dissimilarities, it would be necessary, as a matter of fairness in the summing up, to have addressed the similarities.  Once again, that is not something that defence counsel would likely risk.
65. [65]
    We are unable to conclude that any other direction should have been given, nor is it reasonably possible that the failure to do so may have affected the verdict.
66. [66]
    This second ground of appeal also fails.

Order

67. [67]
    No error as contended has been shown in either the primary judge’s decision to dismiss the application to sever the indictment insofar as it concerned the counts relating to A, B and C or in the conduct of the trial.  The appeal must be dismissed.