DISTRICT COURT OF QUEENSLAND

The Issue

1. [1]
   The indictment charges Mr Rees with 14 counts of sexual misconduct against three girls. The prosecution is not proceeding further with respect to counts 3 and 4. The remaining 12 counts allege indecent treatment, the maintenance of a sexual relationship with a child, and indecent assault.

2. [2]
   The counts are joined in the one indictment. The prosecution says that there should be one trial of all 12 offences. It is submitted for Mr Rees that there should be three trials, each dealing with the allegations of a separate complainant.

3. [3]
   This is an application under s 590AA of the Criminal Code, for a direction or ruling about the joinder of the charges.

4. [4]
   The hearing was based on written outlines of argument provided by the prosecutor and defence counsel. They were supplemented by some oral submissions. The prosecutor’s outline included a schedule of the evidence to be led with respect to each charge. There was no objection to that course. There was no question of hearing any evidence on a voir dire. There was no suggestion that a reading of the depositions was necessary – there was no reference to them.

5. [5]
   Such rulings are significant. They are binding unless the judge at the trial, for special reason, gives leave to reopen a direction or ruling. It must not be subject to interlocutory appeal, but may be raised as a ground of appeal against conviction or sentence.

The Allegations

6. [6]
   The allegations begin when the accused was aged 13 or 14. His family had a house near Brisbane. The house had a swimming pool. He had a sister, A, who was about three years younger.

7. [7]
   The accused was close to the family of his cousins. That family included two girls, F and R. F was a year or so younger than the accused, while R was about five years younger. When they were growing up, the four children would regularly do activities together. R would sleep over at the accused’s home on a regular basis.

8. [8]
   The offences are said to have taken place between 1991 and 1 January 1999, a span of about eight years. They can be considered in three groups as they appear on the indictment. First, F complains of two incidents in 1991. Secondly, A, his sister, complains of incidents of indecent dealing around 1992 and towards the end of 1994. Then, when she was aged 19, in 1999, she complains of an indecent assault. Those events extend over a period of about seven years. Thirdly, cousin R complains of a sexual relationship extending over about two and
   a-half years, until she reached her 16^th birthday on 3 April 1998.  The accused would have been about 18 to 21 years old during that time.

9. [9]
   The first girl, F, complains about two events at the accused’s house. She was 11 or 12. It is said that, while they were swimming in the pool, the accused touched her vagina and partially inserted one of his fingers. She says that he touched her breasts while she was asleep in A’s room, at around the same time.

10. [10]
    His sister, A, complains of three touchings about her vagina. First, she says that when she was 11 or 12 and swimming in the pool with the accused, he inserted two fingers into her vagina. Secondly, she says that she and her brother were travelling in the back seat of the family car when he touched her on the breast and felt around her vagina on the outside of her dress. She was 15 then. Thirdly, she asserts that her brother came into her bedroom in the early hours of the morning and inserted some fingers in her vagina. She was 19.

11. [11]
    Cousin R complains of a sexual relationship, in that the accused engaged in sexualised play with her from a young age, and that she often woke up at the accused’s house to find his hand down her pyjama pants. On occasions, he would attempt to touch her vagina, and he digitally penetrated her. The following offences are taken to be part of that relationship.

12. [12]
    R complains of two occasions when they were all swimming in the pool and he touched her vagina. He placed his hand under her togs in that area. She was 12 or 13.

13. [13]
    R also says that on two occasions she was sleeping over at the accused’s house when she was woken up by the accused inserting a finger in her vagina. She was 14 on the second occasion.

14. [14]
    R participated in church activities with the accused, as part of a group of people. At a meeting, he stepped back and tried to touch her vagina, on the outside of her clothes. She avoided him and moved to the next room. He also went to the next room and again stood in front of her. He then again stretched his hand backwards towards her vagina, and touched her on the outside of her clothing. She pushed his hand away.

15. [15]
    In summary, it can be seen, with one exception, that the allegations centre on the accused’s efforts to touch the girls around or inside their vaginas. The only exception is count 6, where his cousin F says that she woke up to find him feeling her breasts.

16. [16]
    It appears that there will be evidence of a background of sexualised play with R, and an allegation that the accused put his hand down her pyjama pants on numerous occasions. It is expected that the sister, A, will say that touching in the area of her vagina happened on a number of different occasions over many different dates, although as each incident was similar she cannot recall each individual time. It would be usual for evidence of such uncharged acts to be received, to show the existence of the accused’s sexual interest in the girls.

The Submissions

17. [17]
    It is accepted that the court has power to allow the indictment to proceed as one trial, or to order that there be separate trials. It is accepted by the prosecution, that a joint trial of all complaints should only proceed if the evidence of each complainant is cross-admissible against the accused.

18. [18]
    So far as the prosecution case is concerned, the issue is whether or not these offences were committed at all. It is said to be a case where propensity evidence should be allowed as part of the proof of each offence. It is submitted that there is a sufficient similarity between the allegations, to make them admissible as “similar fact” evidence. It is said that there is a great improbability of three family members each making a false complaint against the accused.

19. [19]
    With respect to the most recent Court of Appeal decision, R v BAR [2005] QCA 80, it was submitted that:

“The judgments of McPherson JA and Chesterman J in that case fail to recognise that ‘the central question is that of the improbability of similar lies’. Each examined a list of similarities, dismissed them as being unremarkable, and something any offender might do, and focused then on the dissimilarities. It is submitted that reliance on such an approach would confine the reception of propensity evidence to those cases where it can be said there exists some ‘striking similarity’, or ‘signature’”.

20. [20]
    It is submitted for the accused that there should be separate trials. It is said there is insufficient underlying unity or pattern warranting the joinder of each set of charges involving each complainant. It is said that the evidence on each charge is not cross-admissible with respect to the other complainants. Alternatively, if there is some cross-admissibility, then it relates only to those offences which are said to have taken place in the swimming pool. If joinder of those charges is allowed, then the prosecution should not be permitted to lead background or relationship evidence in respect of the other complaints.

21. [21]
    It was submitted for the accused that:

“It is well recognised by the appellate courts that the joinder of charges of sexual misconduct involving multiple complainants carries with it the risk of prejudice in that there is a real risk that a jury may impermissibly reason that an accused person is guilty of some or all of the offences.  In instances where the evidence on one count is not properly admissible on the trial of another, the discretion to sever charges ought to be exercised liberally.”

The Authorities

22. [22]
    The leading authorities are the decisions of the High Court of Australia in Hoch v The Queen (1988) 165 CLR 292 and Pfennig v The Queen (1995) 182 CLR 461.  The application of those decisions in practice has caused considerable difficulty.  The Court of Appeal has attempted to explain and apply the principles which the Queensland courts are bound to apply.

23. [23]
    The significant Queensland cases are these – R v R  [1997] QCA 277, R v W [1998] 1 QDR 197, R v S [2001] QCA 501, R v O'Keefe [2001] 1 Qd R 564, R v PS [2004] QCA 347, R v Noyes [2005] 1 QDR 169, and R v BAR [2005] QCA 80.

24. [24]
    It is necessary to keep in mind the High Court’s approach to the similarity of facts. In Pfennig Mason CJ and Deane and Dawson JJ started with the proposition that, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than of supporting an inference that the accused is guilty of the offence charged (referring to that statement in Hoch).  They then went on to mention the passage in Hoch at pages 294-295, that the strength of similar fact evidence lies in the fact that the evidence reveals “striking similarities, unusual features, underlying unity, system or pattern”.  They went on to say:

“This passage should not be understood as asserting that `striking similarities’ or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.” (p 402)

25. [25]
    They pointed out that such evidence is admitted as circumstantial evidence, to raise the objective improbability of some event having occurred other than as asserted by the prosecution. They continued:

“Acceptance of the statement of the principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.  What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand.” (at 484)

26. [26]
    They observed that the House of Lords, in Director of Public Prosecutions v P [1991] 2 AC 447, had rejected the proposition that striking similarity was an essential prerequisite of admissibility of similar fact evidence in all cases.  In that case the essential feature of the evidence to be admitted was that its probative force was so great to make it just to admit it, despite its prejudicial effect.  The Lord Chancellor had rejected the notion that “striking similarity” is an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with or alleged against another.  (Though cases about the identity of the offender were in a different category).

27. [27]
    Their conclusions particularly relied on some remarks of the Lord Chancellor, which they set out at p479. For the purposes of this judgment, it will be helpful to note more of those remarks. It is also helpful to note the remarks of the Chief Justice, sitting in the Court of Appeal, from which the appeal was brought to the House of Lords:

“The way in which this doctrine has developed has led, it seems, to courts requiring some feature of similarity beyond what has been described as the pederast’s or the incestuous father’s `stock in trade’, before one victim’s evidence can be properly admitted upon the trial of another … it seems to us absurd that counsel and judge should be spending time searching through committal papers, which may, in the upshot, not represent the evidence actually given, searching for striking similarities, such as to justify the jury hearing evidence of that which they would naturally and rightly consider themselves entitled to know, namely that the defendant is charged with abusing not merely one but two or more of his young daughters.  We see force in the suggestion adumbrated in the argument before us that where the father has allegedly shown himself to be someone prepared to abuse sexually girls who are no more than children, in this case under the age of 13, girls who are, moreover, his own children and to use his position of power over them in their own home to achieve those ends, this might provide a sufficient hallmark to render the evidence of one girl admissible in the case of the other where the danger of collusion can be discounted.  In the current state of decided cases we are, we think, inhibited from so deciding.”

The Lord Chancellor said this:

“It is apparent that the particular difficulty which arose in this case is the development of the authorities in this area of the law requiring some feature of similarity beyond what has been decided as the pederast’s or the incestuous father’s stock in trade before one victim’s evidence can be properly admitted on the trial of another … I am of opinion that it is not appropriate to single out `striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another.  Obviously, in cases where the identity of the offender is in issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required and the discussion which follows in (Lord Salmon’s speech in Reg v Boardman) indicates that he had had that type of case in mind.

From all that was said by the House in Reg v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.

Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed. … But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime, the occasions in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it and is not justified in principle.  Hume on Crimes, 3^rd Ed 1844 Vol II page 384 said long ago:

‘The aptitude and coherence of the several circumstances often fully confirm the truth of the story, as if all the witnesses were deponing to the same facts.’

Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree. …

The view that some feature of similarity beyond what has been described as the pederast’s or the incestuous father’s stock in trade before one victim’s evidence can be properly admitted upon the trial of another seems to have been stated for the first time in these terms in Reg v Inder (1977) 67 Cr App Rep 143.  Although that case also contains reference to a warning not to attach too much importance to Lord Salmon’s vivid phrase “uniquely or strikingly similar” I think in the context this is what has occurred.  This trend has been followed in later cases…In so far as these decisions required, as an essential feature, a similarity beyond the stock in trade I consider they fall to be overruled.

This relationship, from which support is derived, may take many forms and while these forms may include `striking similarity’ in the manner in which the crime was committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances.  Relationships in time and circumstances other than these may well be important relationships in this connection.  Where the identify of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary.  To transpose this requirement to other situations whether the question is whether the crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction on the application of the principle.

…The law of New Zealand, to which we were referred, also shows, in my opinion, a similar development.  The latest of the cases from New Zealand to which we were referred is the decision of the Court of Appeal in Reg v Huijser [1988] 1 NZLR 577.  The crux of the judgment is set out succinctly at pages 578-579.

‘In essence the argument for the appellant is that the evidence in question is no more than evidence of propensity.  On the other hand the argument for the Crown is in essence, to quote from the written submissions by Mr Burston based on Hsi En Feng’s case [1985] 1 NZLR 222: ‘after hearing the four women in this case, the jury would be entitled to take the view that the appellant was operating his business in such a way as to create and take advantage of opportunities for sexual contact, not necessary for business purposes, with relatively young women shop employees.  It would be contrary to the requirements of justice to deny the jury the advantage of the full picture.’  Weighing the arguments and considering the depositions, we have concluded that the judge, in his conclusion, and the Crown are right.  This is not a case like the more border-line one of Reg v McLean [1978] 2 NZLR 358, where this court held the prejudicial effect clearly outweighed probative value.  The evidence, if accepted, shows a practice established over a considerable number of years by the accused of subjecting women employees to minor sexual assaults and harassment during the course of their working relationships with him.  It indicates a constant or continual attitude by him.’

When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence.  This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances.  Relationships in time and circumstances other than these may well be important relationships in this connection.  Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary.  To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

For the reasons I have given, I am of opinion that there was sufficient connection between the circumstances spoken of by the two girls in the present case for their testimonies mutually to support each other that the appeal should be allowed, and the conviction restored.

…The evidence referred to is admissible if the similarity is sufficiently strong or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect” (at pp 460-462).

The other four law lords agreed with those reasons.

28. [28]
    At p480 of Pfennig, reference was made to DPP v P being followed by the New Zealand Court of Appeal.  That reference leads to several decisions in which Cooke P (as he then was) was a party.  In speaking for the Court of Appeal in R v Accused [1988] 1 NZLR 573, he was concerned with sexual offences, of a varying nature, said to have been committed upon a group of children aged between 9 and 12.  Some were members of the accused’s household, and the others were near neighbours.  The offences occurred over a period of about two years.  They occurred in different places.  There were many allegations.  An attack was made on the joinder of the charges.  He said this in repeating his remarks in Hsi En Feng’s case:

“…it was suggested that the need for striking similarities can be over-emphasised or misleading.  But we think that this label, so often used, is valuable at least as a reminder that similar fact evidence must go to more than their propensity to commit sexual offences against women; it must have additional truly cogent probative force on some issue or issues in relation to each charge in which it is admitted.  It is usually a question of degree. … in some cases `sufficiently striking’ may be seen in only two extraordinary episodes. … in others the very number of the alleged incidents may contribute to bring about a ruling that the similarity is striking. … it is in the latter category that we see the present cases falling … (He reviewed the facts).  A jury would be entitled to take the view that, as a whole, the evidence shows that during the material period the accused was conducting his practice in such a way as to create and take advantage of opportunities of sexual contact, not necessary for treatment purposes, with relatively young women patients.  The similar fact evidence, including that of more extreme incidents, is capable of showing a system or an underlying unity.  As regards each charge the jury could properly regard it as strengthening the likelihood that the incident occurred and that the accused had a sexual intent.

In the instant case, the judge in substance correctly applied himself to those principles.  We have no doubt that he was right to see all the evidence, as appearing from the depositions or statements, as having a cogent probative force justifying its submission on all counts, despite the obvious prejudice to the accused.  Notwithstanding some variation in details, the evidence points strongly to a system of pattern or conduct, with an underlying unity running through all the alleged incidents recounted by the children.  If their accounts are accepted, the accused’s way of life over the material period involved the systematic sexual exploitation of this group of children, all well known to him.  Mr Halls for the accused suggests four separate trials, but we are satisfied that such a procedure would be as much an affront to common sense as the five separate trials suggested in Hsi En Feng.  As in that case, it would be needlessly artificial and contrary to the requirements of justice to deny the jury the advantage of the full picture.”

29. [29]
    Another such case came before the New Zealand Court of Appeal after the decision in DPP v P.  In R v Accused (1992) 2 NZLR 187 a man was charged with sexually abusing two step-daughters over a period of about six years.  Cooke P discussed the issue of similar fact evidence in New Zealand at p 191:

“In as much as A’s evidence could not be specifically linked to any of the three remaining charges, it can perhaps be described as similar fact evidence, although it can equally be described as part of the relevant history or res gestae.  We do not consider that it matters which description is used.  While the description ‘similar facts’ and the associated one ‘strikingly similar’ have been used in New Zealand in the past, largely in deference to English authority, it will no doubt continue to be used as convenient labels, the real question is always whether, as a matter of common sense, the evidence is sufficiently supportive of the prosecution case to justify allowing it to go to the jury notwithstanding any illegitimate prejudicial effect that it may have.

That has been the approach in New Zealand to ‘similar fact’ cases for some years … (He referred to the New Zealand cases).  Sufficiently probative, sufficiently cogent, sufficiently relevant, are different formulae for expressing the same idea.  Evidence of mere propensity (for example on a charge of homosexual criminal conduct, mere evidence that the accused is a homosexual) is traditionally regarded as insufficient.  Apart from a simple case of that kind, the question is apt to become one of degree. (He referred to DPP v P) … The present is not a case where we have to consider the relationship between what happened to one victim and what happened to another but the underlying principle is the same.  In the end it is a matter of probative value. …”

30. [30]
    Likewise, also in New Zealand, in C v R (1994) 2 NZLR 621, the High Court was considering allegations by a nephew and niece against their uncle.  Each alleged indecent acts against them when they were children.  The details of the allegations are not spelt out, but Smellie J had this to say:

“If the trial were to proceed the Crown would be entitled to adduce detailed evidence from the complainants such as that which appears in the depositions, even if half the counts were knocked out at this stage on the grounds of presumptive prejudice.  There is the possibility that the trial judge might exclude that evidence on the basis that its prejudicial effect outweighed its probative value.  But the probability is that following the law as laid down in such cases as R v Ball (1911) AC 47, Makin v Attorney-General for New South Wales (1894) AC 57 and more recently Director of Public Prosecutions v P (1991) 3 WLR 161, the evidence would be admitted to show the general relationship between the applicant and his nephew and niece and his sexual interest in them and/or as similar fact evidence.  Such evidence would provide powerful support for the Crown case because inevitably it makes the evidence upon which convictions would have to be founded much more believable than if that test be stood in isolation. …”

31. [31]
    The later New Zealand case of R v O [1999] 1 NZLR 347 is an example of some aspects of the accused’s sexual misconduct being described solely as propensity evidence, because it portrayed him as a paedophile, and was therefore inadmissible.  Other evidence had closer links to the allegations at the trial, and so were proper similar fact evidence.

32. [32]
    In this context, it is helpful to mention the Victorian decision of R v Mitchell [2000] VSCA 54.  There, the accused faced 28 counts of offences said to have taken place many years before.  There were nine separate complainants.  He had been the superintendent of the local swimming pool, and all the complainants had been girls attending the pool when they were between about 7 and 12 years of age.  The judgment of Tadgell JA applied the approach in DPP v P.  He dismissed the criticism, that there was not sufficient striking similarity between the offences.  He went on to say at para 8:

“The counts upon which the trial proceeded and in respect of which the judge declined to order severance had a certain commonality about them.  … he used to insert his hand inside the underclothing of the children and interfere with their private parts.  … the story was a common one, save that there were variations such that some of the offences were alleged to have been committed at his horse stables, some at his house, some in a motor car, one in a hotel, and one at the property of one of the complainant’s parents.  There was an allegation of interference with a girl who was up a ladder picking fruit.  In two cases, there were allegations of sexual penetration.  On other occasions it was said that he forced or attempted to force a complainant to kiss him on the lips or on the penis. … what is required before propensity evidence of this kind may be contemplated is merely that the court should consider that in all the circumstances it is just to admit the evidence; or, looking at it from the point of view of severance, that it was just to permit counts to be remained joined despite any prejudicial effect that the joinder may have on the accused. … it was not necessary that the judge should have looked for and found a `striking similarity’ between these offences before refusing the application for severance.”

33. [33]
    It is clear that the English and New Zealand decisions, which the High Court appears to have approved, give no support for the continuing application of searches for “striking similarity” or “signatures” in the way that sexual offences are committed. The similarities are more likely to be found in the broad patterns of the accused’s sexual interests.

34. [34]
    The decision of the High Court in Pfennig adds a further requirement before the similar fact evidence can be admitted.  Special attention has to be paid to its quality as circumstantial evidence.  The decision in the Court of Appeal in R v O'Keefe [2000] 1 Qd R 564 explains how that is to be done.  A judge in ruling upon the admissibility of propensity evidence in criminal trial is required to address two questions:

1. (a)
   is the propensity evidence of such a calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?

2. (b)
   if the propensity evidence is admitted, is the evidence as a whole, (assuming its accuracy and truth) reasonably capable of excluding all innocent hypotheses?

35. [35]
    Unless both those questions are answered in the affirmative, the prosecution should not be permitted to lead the propensity evidence. That approach was applied by the Court of Appeal in R v Noyes [2005] 1 Qd R 169. 

36. [36]
    In such cases as these, it can be expected the accused will suggest that the complainants have mistaken horseplay and childish games for sexual misconduct. It may be suggested that their accounts are mistaken, or even made up for some malicious reason. Here, there was also a suggestion of mistaken identity at the committal, with respect to contact in the pool.

37. [37]
    The combined testimony of the complainants is important in such a case. If the events have a sufficient degree of similarity, so that evidence about them is admissible in each case, then the central issue becomes that of the improbability of similar lies. There would be a body of circumstantial evidence tending to show that the accused has committed the disputed acts. So much is the foundation of the decision in Hoch, apart from the emphasis on the possibility of concoction.  Concoction apart, it was accepted in Hoch that the evidence of the complainant boys would have been admissible on all counts, where they alleged similar indecent dealings.

38. [38]
    In R v PS [2004] QCA 347 (in which special leave has been given to appeal to the High Court) the Court of Appeal had to deal with convictions of rape and indecent assault, following a joint trial in which six complainants gave evidence against a young man.  The facts are set out at length in the judgment of Williams JA.  He outlined, in paras 46-57, the principles concerning the joinder of charges when there were six separate complainants.  He discussed the various rulings that the trial judge had made, leading up to and at the start of a three week trial.  As he observed at par 62:

“In all of his rulings with respect to the joinder and the cross-admissibility of evidence the learned trial judge reiterated that the `probative value of the evidence is its ability to show the probability of similar lies by each of the complainants’.  As he pointed out on a number of occasions in dealing with submissions on these issues, if each of the charges was tried separately defence counsel would urge the jury to have doubts about the truthfulness of the complainant’s evidence or its reliability `because it would be highly unlikely that the accused, knowing that he was able to be identified, knowing that he was proceeding to sexual intercourse against the complainant’s will, or do such a thing because of the potential consequences’ … In summary, the case was one where each of the complainants (save for TK) was barely known to the appellant but was within his general circle of friends, each was a young teenage girl relatively sexually immature and unable to respond appropriately to the appellant’s advance, each was apparently prepared to explore some physical relationship with the appellant but was unable to cope with pressure for intercourse subsequently applied, and in each case the appellant persisted and ignored the complainant’s non-consent to intercourse.

It is clear in my view that the learned trial judge correctly assessed the situation when he observed that on separate trials the defence would ask the jury to conclude that the complainant girl was telling a highly improbable story in saying she did not consent.  That brought into focus the improbability of a number of different, but similar, accounts being untrue.”

Paragraph 74:

“In argument in this court senior counsel for the appellant stressed that there were distinctions between the various incidents such as made the joinder improper or ought to have resulted in a ruling that the evidence was not cross-admissible. … Of course it has to be admitted that such distinctions existed but the focus in a case such as this must be more on the similarities.  If there are sufficient similarities as between the evidence of the incidents to make the evidence cross-admissible, the existence of some dissimilarities or distinctions will not necessarily reverse that position.  As is often the case, the ultimate decision will call for a careful exercise of judgment by a trial judge, and, in my view, it cannot be said that the learned trial judge here erred in ruling as he did and in directing the jury as he did.”

39. [39]
    It is also helpful to refer to the decision of the Court of Appeal in R v Noyes.  Only one complainant gave evidence, but his evidence was supported by two others who had been boys at the same home at the time of the alleged offences.  The judgment of the court was given by Holmes J. In her reasons, she pointed out that the significance of a similar fact evidence lay,

“in the improbability of the witnesses giving accounts of the happenings having the requisite degree of similarity unless the happening occurred “or, to put it in another way, the improbability of similar lies.”  (At 34).

40. [40]
    Holmes J discussed the collection of events which was said to amount to similar facts. She concluded:

“There was, in this case, a strong underlying pattern in what, on the three witnesses’ versions, occurred. … It is not appropriate of course to consider these features individually; the whole of the circumstances ought to be considered; and they amount, in my view, to a common modus operandi.  If the evidence of (the two other witnesses) were accepted, it could only reasonably be viewed as supporting an inference of guilt.  Assuming the accuracy of the other evidence in the Crown case, it was, as a whole, reasonably capable of excluding other, innocent hypotheses.  The improbability of (the two witnesses) giving account of sexual assaults by the appellant with features so similar to those described by R, in the absence of any explanation other than their basis in fact, was a circumstance properly before the jury.  No error was made by the learned trial judge in admitting that evidence”.  (At paras 37 and 38).

Conclusions

41. [41]
    In my opinion, there is enough similarity in the allegations here. With one exception, they all show the sexual interest that the accused had towards the girls, and his desire to touch them on or inside the vagina. The exception is the allegation of touching F’s breasts when she was asleep. There are other allegations that he touched the girls when they were asleep. Such evidence shows, if accepted, a continuing sexual interest in the girls, in ways that are similar. They were all part of an extended family group. They were about the same age when the alleged touching commenced.

42. [42]
    It follows that this application by the accused should be dismissed.