R v Brophy[2015] QDC 236

DISTRICT COURT OF QUEENSLAND

1. [1]
   There is an indictment before the Court charging the applicant with the following offences against nine separate complainants:

• 30 counts of indecent treatment of a boy under 16 years;
• five counts of sodomy; and
• one count of assault occasioning bodily harm whilst armed.

2. [2]
   The applicant has submitted that separate trials should be ordered in respect of the allegations for each of the complainants.

3. [3]
   The respondent resists the application to sever the indictment.

Factual summary

4. [4]
   The evidence against the applicant turns largely upon the evidence of the nine complainants. The offences are said to have occurred at Boys Town where the applicant was a brother from the De La Salle Order. The alleged offences are said to have occurred over a period of time commencing in 1978 and finishing in December 1983.

Complainant 1 – counts 1 to 7

5. [5]
   Counts 1 to 7 involve six counts of indecent treatment of a boy under 16 and one count of assault occasioning bodily harm whilst armed.

6. [6]
   These offences are alleged to have occurred between 16 October 1978 and 1 April 1980. The complainant was a resident at Boys Town from October 1978 to the end of 1980. He claims that shortly after he arrived at Boys Town in 1978, he was approached by the applicant in his sleeping cubicle. He claims that the applicant woke him by rubbing his arm, rubbing his penis and testicles and placing the complainant’s hand into the applicant’s robe pocket and onto the applicant’s penis. He claims that the applicant was not wearing underwear. He claimed that a similar incident occurred every morning at the same time for three or four months. On one occasion he claims the applicant pressed a finger into his anus and moved the complainant’s hand until the applicant ejaculated.

7. [7]
   On one occasion the complainant says that he resisted the applicant and the misconduct subsequently ceased for about eight months. The complainant has also indicated that three or four times a week the applicant would hit him with a leather strap. He has also described an occasion when he was at a piggery with the applicant when the applicant pushed him down and pulled the complainant’s pants down. The complainant says that he resisted the applicant on this occasion and as a consequence the applicant struck him a number of times with a cattle prod.

Complainant 2 – counts 8 and 9

8. [8]
   These counts involve one charge of indecent treatment of a boy under 16 and one charge of sodomy.

9. [9]
   These offences are said to have occurred between 1 June 1979 and 19 November 1979. The complainant was at Boys Town from May 1978 until late 1979.

10. [10]
    The complainant claims that the applicant sexually assaulted him at the Boys Town pig farm at least twice a week for two months towards the end of 1979. On one occasion, whilst travelling to the piggery, the applicant touched the complainant’s genitals and backside. Then, on arrival at the piggery, the complainant was directed to pull his pants down and after doing so was bent over by the applicant and sodomised by him. He has described that same event occurring on five further occasions.

Complainant 3 – count 10

11. [11]
    This is a charge of indecent treatment of a boy under the age of 16.

12. [12]
    This complainant was a resident at Boys Town from March 1979 until late 1981.

13. [13]
    He claims that he went mustering with the applicant. After a swim and lunch, he fell asleep but awoke later to find the applicant fondling his penis.

Complainant 4 – counts 11 to 15

14. [14]
    These counts involve five charges of indecent treatment of a boy under 16 and are said to have occurred between 28 September 1980 and 12 November 1981.

15. [15]
    During a private guitar lesson the applicant rubbed the complainant’s shoulders and put a hand down the complainant’s shirt and rubbed his chest whilst discussing the fact that the complainant should not be embarrassed about his body. On another occasion similar behaviour occurred but progressed further when the applicant placed his hand inside the complainant’s shorts and fondled the complainant’s penis and testicles whilst simultaneously masturbating himself. Similar incidents occurred on two other occasions. Finally, on another occasion, when the applicant was applying ointment to a leg injury that the complainant had suffered, the applicant masturbated the complainant to ejaculation.

Complainant 5 – counts 16 to 23

16. [16]
    These counts involve five charges of indecent treatment of a boy under 16 and three charges of sodomy and are said to have occurred between 21 January 1981 and 18 November 1983.

17. [17]
    The complainant was a resident at Boys Town from January 1981 until 18 November 1983. He complains that in mid-March 1982 whilst the applicant was teaching him guitar, the applicant stroked the complainant’s leg and fondled his penis. He said this occurred on other occasions as well.

18. [18]
    During Easter in 1982, whilst working at the stables, the complainant said that the applicant again fondled his penis. He claims that a couple of days later the applicant took him horse riding to a waterhole where they swam naked. It is alleged that whilst in the water the applicant fondled the complainant and then sodomised him. The complainant says that at the stables there was constant fondling, oral and anal sex.

19. [19]
    The complainant says that on 15 March 1983 he and the applicant were in a place that the complainant cannot now identify, where the applicant fondled the complainant’s penis and then sodomised him. This caused an injury to his anal region and he was treated at the Beaudesert Hospital for stomach pains.

20. [20]
    The complainant also alleges that during a school holiday break whilst he was at the gymnasium, the applicant arrived with a plate of sandwiches. Whilst eating the sandwiches, the applicant fondled the complainant and they both then went to the shower room where the applicant sodomised the complainant.

Complainant 6 – counts 24 to 26

21. [21]
    These counts involve three charges of indecent treatment of a boy under 16.

22. [22]
    The complainant was a resident at Boys Town from early 1981 until 18 November 1983. He says that about six months after arriving he was at the stables when the applicant touched him on the genitals on the outside of his clothes. He has alleged that this occurred on several occasions. He has also alleged that on another occasion, he and three boys were at the stables and the applicant made them strip down to their underwear and he then proceeded to fondle their genitals and place his hand between their buttocks. It is alleged that the applicant then made the boys remove their underpants and made one boy anally penetrate another whilst that person in turn simultaneously anally penetrated the third boy.

Complainant 7 – counts 27 to 29

23. [23]
    These counts involve three charges of indecent treatment of a boy under 16, such offences having allegedly occurred between 27 January 1981 and 10 December 1982.

24. [24]
    The complainant was a resident at Boys Town from late 1980 to late 1983.

25. [25]
    The complainant has alleged that on an occasion when he was asleep the applicant fondled his penis and tried to perform oral sex on him. He has alleged that this activity was repeated on a second occasion although he was awake when that occurred. In fact he alleges that such behaviour was repeated on a number of occasions. He has also alleged that on a trip to Boonah, when seated next to the applicant in the vehicle, the applicant touched the complainant’s penis. The complainant alleges that two other boys were in the truck at the time and they were also both fondled in a similar way during that trip.

26. [26]
    The complainant has also alleged that the applicant fondled his genitals a number of times whilst he was showering.

Complainant 8 – counts 30 and 31

27. [27]
    These counts involve one charge of indecent treatment of a boy under 16 and one charge of sodomy, which are said to have occurred between 26 January 1981 and 23 November 1982.

28. [28]
    This complainant was a resident at Boys Town between late 1980 until the end of 1982.

29. [29]
    He has alleged that he went with the applicant to a property called “Outbound” and on leaving the car the applicant told him to rub the applicant’s penis, which he did. He alleges that the applicant then partially undressed him, bent him over and sodomised him.

Complainant 9 – counts 32 to 36

30. [30]
    These charges involve five counts of indecent treatment of a boy under 16 between 1 February 1982 and 1 December 1983.

31. [31]
    This complainant was a resident at Boys Town between early 1982 and late 1984.

32. [32]
    He has alleged that the applicant came into his room, offered to tuck him in and then masturbated the complainant for about 10 minutes.

33. [33]
    He also alleges that on the second occasion the applicant came into his room, he put his hands under the bedclothes and masturbated the complainant with one hand whilst masturbating himself with the other.

34. [34]
    It is further alleged that a couple of weeks later the applicant repeated that behaviour. The complainant further alleges that a couple of weeks after that again, the applicant entered his room whilst he was in bed, told the complainant to get out of bed and pull down his pyjama pants, which the complainant did. The applicant then rubbed gel on the complainant’s penis, backside and anus, and then rubbed his own penis around the complainant’s anus without penetration until ejaculation. This behaviour was repeated on a second occasion.

Joinder of charges

35. [35]
    The applicant has submitted that the allegations of the separate complainants are not joinable with each other.

36. [36]
    Section 567(1) of the Criminal Code (Qld) requires an indictment to charge one offence only. The current charges are said to be joined pursuant to s 567(2) which states:

“(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.”

37. [37]
    Section 597A(1) of the Criminal Code provides that where the court is of the 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 one offence in the same indictment the court may order a separate trial of any count or counts.

38. [38]
    In R v MAP,^[1]Keane JA (as his Honour then was) said:

“[37]  If the evidence of each complainant was admissible on the charge relating to the incident alleged by the other complainant, then the offences charged against the appellant would form a series for the purposes of s 567 of the Criminal Code. If that evidence were not admissible, then there would not be a series of offences, and, furthermore, the appellant would have been unduly prejudiced in his defence within the meaning of s 597A of the Criminal Code.

[38]  Whether the evidence relating to the complaint by Ms S was admissible in the Crown case relating to the complaint by Ms W, and vice versa, is to be determined in accordance with the principles stated by the High Court of Australia in Pfennig v The Queen and Phillips v The Queen.” (citations removed)

39. [39]
    In that matter his Honour repeated the following passage from Phillips v The Queen^[2]whilst confirming that similar fact evidence is prima facie inadmissible because of its prejudicial effect:

“The ‘admission of similar fact evidence … is exceptional and requires a strong degree of probative force’ (R v Boardman [1975] AC 421 at 444; [1974] 3 All ER 887 at 897–8 per Lord Wilberforce, approved in Markby v R (1978) 140 CLR 108 at 117; 21 ALR 448 at 455 per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring; Perry v R (1982) 150 CLR 580 at 586, 589; 44 ALR 449 at 453–4, 456 per Gibbs CJ; Sutton v R (1984) 152 CLR 528 at 533; 51 ALR 435 at 438 per Gibbs CJ; Pfennig v R (1995) 182 CLR 461 at 481; 127 ALR 99 at 113; [1995] HCA 7 per Mason CJ, Deane and Dawson JJ). It must have ‘a really material bearing on the issues to be decided’ (R v Boardman [1975] AC 421 at 439; [1974] 3 All ER 887 at 893 per Lord Morris of Borth-y-Gest, approved in Markby v R (1978) 140 CLR 108 at 117; 21 ALR 448 at 455 per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring). It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’ (Perry v R (1982) 150 CLR 580 at 609; 44 ALR 449 at 472–3 per Brennan J; Sutton v R (1984) 152 CLR 528 at 548–9; 51 ALR 435 at 450–2 per Brennan J, CLR 560; ALR 460 per Deane J, CLR 565; ALR 464 per Dawson J; Harriman v R (1989) 167 CLR 590 at 633; 88 ALR 161 at 192–3 per McHugh J; Pfennig v R (1995) 182 CLR 461 at 481; 127 ALR 99 at 113; [1995] HCA 7 per Mason CJ, Deane and Dawson JJ). ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’ (Sutton v R (1984) 152 CLR 528 at 534; 51 ALR 435 at 439 per Gibbs CJ). The criterion of admissibility for similar fact evidence is ‘the strength of its probative force’ (Hoch v R (1988) 165 CLR 292 at 294‑5; 81 ALR 225 at 226-7 per Mason CJ, Wilson and Gaudron JJ). It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence (Hoch v R (1988) 165 CLR 292 at 301; 81 ALR 225 at 231–2 per Brennan and Dawson JJ, approving words of Lord Hailsham of St Marylebone LC in R v Kilbourne [1973] AC 729 at 749; [1973] 1 All ER 440 at 454–5). The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused’ (Director of Public Prosecutions v P [1991] 2 AC 447 at 460; [1991] 3 All ER 337 at 346 per Lord Mackay of Clashfern LC). Admissible similar fact evidence must have ‘some specific connexion (sic) with or relation to the issues for decision in the subject case’ (Pfennig v R (1995) 182 CLR 461 at 483; 127 ALR 99 at 114-15; [1995] HCA 7 per Mason CJ, Deane and Dawson JJ). As explained in Pfennig v R: ((1995) 182 CLR 461 at 485; 127 ALR 99 at 116; [1995] HCA 7 per Mason CJ, Deane and Dawson JJ.)

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

40. [40]
    In Hoch v The Queen,^[3]Mason CJ, Wilson and Gaudron JJ said that the basis for the admission of similar fact evidence “lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged”.

41. [41]
    The approach to the question of admissibility of similar fact evidence was definitively dealt with by the High Court in Pfennig v The Queen.^[4]The plurality said at p 482-3:

“The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it 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 view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence.”

Application of law to alleged facts

42. [42]
    The respondent has submitted that the following features common to the case against the applicant in relation to each complainant leads to the inevitable conclusion, when considered in light of all relevant evidence, that there is no reasonable explanation other than the inculpation of the applicant in each of the offences charged:

1. (a)
   the offending takes place at the Boys Town – Beaudesert facility between October 1978 and December 1983;

2. (b)
   the applicant was a De Le Salle brother placed at the facility from 1977 to 1983;

3. (c)
   the complainants were all boys aged between 12 to 16 years;

4. (d)
   they were all away from their parents and from disadvantaged or troubled backgrounds;

5. (e)
   they lived in a regime of extreme physical abuse and intimidation orchestrated by at least a portion of the De La Salle brothers;

6. (f)
   the applicant’s sexual perversions flourished in that environment. The boys were fearful of retribution if they informed. He (the applicant) participated in the violence and threats;

7. (g)
   perhaps with the exception of the complainant the subject of counts 11 to 15, the offending would always commence with the applicant fondling the complainant’s genitals. In the case of the complainant the subject of counts 11 to 15, the applicant rubbed the boy’s shoulders and chest before the touching progressed to penis fondling;

8. (h)
   aside from the complainant the subject of counts 30 and 31, the penis fondling always commenced with the applicant rubbing the boy’s penis;

1. (i)
   on occasions the offending would graduate to acts of sodomy or acts preparatory to sodomy. The applicant would always commit the penetrative act;

10. (j)
    the applicant never kissed the boys or allowed himself to be penetrated. He never had the boys perform oral sex on him;

1. (k)
   the offending perpetrated upon the complainants the subject of counts 1 to 7, 10, 27 to 29, and 32 to 36 each began with the applicant playing with the boy’s penis whilst the complainant was either asleep or in bed; and

10. (l)
    the offending perpetrated on the complainants the subject of counts 11 to 15 and 16 to 23 takes place in the context of the applicant giving the boys private guitar lessons.

43. [43]
    The applicant has submitted that these features are unremarkable and not uncommon in allegations of this type and fail to demonstrate an underlying unity or pattern of activity that permits of no reasonable explanation other than guilt.

44. [44]
    The respondent has relied heavily on comments made by Henry J in R v CBM^[5]:

“[45] In the present case the manifestations or exemplifications of a particular distinctive propensity identified by the learned application judge derive not merely from the commission of generally similar sex offending against children of a similar age and sex. They also derived from the circumstances that the children were the appellant’s own cousins and that he offended against them in generally close temporal succession, when living in their respective homes, when other persons were present in their homes. In the absence of collusion it is objectively improbable that AV would complain such similar and temporally proximate circumstances of offending against her by the appellant as his offending against SC unless the offending against AV actually occurred. Identical circumstantial reasoning applies in using AV’s evidence of the appellant’s offending against her in proof of the offending as against SC.

[46] The learned application judge was entitled to conclude as he did that there was no reasonable view of the evidence of each complainant which was consistent with the appellant’s innocence in respect of the charges relating to the other complainant. It was, on any view, a finding that the similar fact evidence of each complainant was cross-admissible and could be used by the jury as supporting proof of the charges relating to the other.”

45. [45]
    In that matter:

1. (a)
   the two complainants were cousins of each other and cousins of the defendant;

2. (b)
   the complainants were aged 10 to 11 years and 9 to 11 years respectively at the time of the offending conduct;

3. (c)
   at the time of offending the defendant was living in the home of each complainant;

4. (d)
   the periods of offending were connected in time i.e. 31 March 2008 - 31 March 2009 and 31 March 2009 - 1 June 2010;

5. (e)
   in relation to each complainant, sexual conduct was of a wide-ranging nature – oral sex, digital penetration and penile penetration; and

6. (f)
   in relation to each complainant, on occasions other children were in the relevant room or nearby when sexual activity occurred.

46. [46]
    On that last point I note however, that in Phillips v The Queen the High Court specifically regarded as insufficient for this purpose similar fact evidence indicative of an accused’s “recklessness in persisting with [offending] conduct near other people who might be attracted by vocal protests”.^[6]That approach was then adopted by Keane JA in R v MAP where his Honour said (after making the comment detailed in the preceding sentence):

“On the approach taken by the High Court in Phillips v The Queen, the brazen opportunism in which the appellant engaged in this case, if the complainants are to be believed, would be characterised as ‘unremarkable and not uncommon’ for the purpose of determining whether this evidence had sufficient probative force to displace the exclusionary rule.”^[7]

47. [47]
    Whilst such a feature is not present in the case at hand, it is nevertheless a feature which should not be taken into account in any comparison between that case and this. Of course, any such comparison is of little, if any, utility given that the determination of this issue in each and every case must necessarily depend largely upon the facts and circumstances of each case.

48. [48]
    It is clear from the authorities that a strong degree of probative force must exist to displace the exclusionary rule. The alleged facts in this matter do not, in my opinion, carry such a strong probative force so as to displace that rule in relation to the charges concerning a number of the complainants. In my view, the fact that the complainants were all boys aged between 12 and 16 years and residents of the Boys Town facility at the relevant time is not particularly remarkable. Their disadvantaged backgrounds are equally unsurprising in the circumstances. I imagine the majority of boys who passed through that facility came from disadvantaged or troubled backgrounds. Similarly the regime of intimidation and extreme physical abuse, as I understand the evidence, was not limited to just those complainants, but rather applied to all boys housed in the facility.

49. [49]
    Furthermore, to submit that the applicant’s sexual perversions flourished in that environment is unhelpful and irrelevant to the issue, given that acceptance of that allegation would necessarily have to rely upon acceptance of some or all of the charges. In other words, it is a submission which puts the cart before the horse.

50. [50]
    Whilst I accept that these aforementioned features can potentially constitute evidence upon which a successful similar fact evidence argument might be based (depending upon individual facts and circumstances of the matter in question), they do not, of themselves, demonstrate an underlying unity or pattern of activity that permits of no reasonable explanation consistent with innocence in the circumstances of this matter.

51. [51]
    That position does not change for some of the charges, even when those features are considered in conjunction with the nature of the alleged offending conduct. Counts 8 and 9 involve allegations of events said to have taken place in a car and at a piggery. They involve allegations of the applicant touching the complainant’s penis and backside and an act of sodomy. Counts 11 to 15 involve allegations of the applicant masturbating the complainant when applying ointment to an injury and doing something similar on other occasions during guitar lessons as well as masturbating himself. Counts 16 to 23 involve allegations that the applicant stroked the complainant’s leg and fondled his penis during a guitar lesson and then again on another occasion at the stables. It is further alleged that acts of fondling followed by acts of sodomy on the complainant occurred at other places such as at a waterhole, at an unnamed place and at a gymnasium. Counts 24 to 26 involve allegations of the applicant touching the complainant on his genitals on the outside of his clothing and of touching three boys all lined up together on their genitals and between their buttocks before forcing them to anally penetrate each other simultaneously. Counts 30 and 31 involve an allegation of the applicant causing the complainant to rub the applicant’s penis before the applicant sodomised the complainant. There was no allegation of the applicant fondling the complainant’s penis in relation to that complainant.

52. [52]
    This brief recitation of the allegations serves to emphasise the fact that the offences the subject of these charges varied considerably in circumstance and nature. Whilst of course there is some similarity between the offending activities, this is unsurprising. It is behaviour that has some similarity to many cases of this type that come before this Court. In my view, the evidence of each does no more than suggest that the applicant is a person with a propensity for sexual activity with boys. It follows that I am not of the view, in relation to those charges, that the alleged activity is in any way remarkable or uncommon, nor is it suggestive of an underlying unity or pattern of activity that permits of no reasonable explanation other than the guilt of the applicant. In other words, in my view the evidence in relation to each of those groups of offences regarding each complainant carries limited probative value. Its prejudicial effect however cannot be doubted. Accordingly, I find that the following groups of charges are not cross admissible and should be tried separately:

1. (a)
   counts 8 and 9;

2. (b)
   counts 11 to 15;

3. (c)
   counts 16 to 23;

4. (d)
   counts 24 to 26; and

5. (e)
   counts 30 and 31.

53. [53]
    The remaining groups of charges however have an additional feature which does, in my view, point to a “particular distinctive propensity” in connection with or in relation to the issues in the case when considered in conjunction with the other features present in these alleged events.^[8]In relation to those matters, each complainant alleges that the offending conduct commenced when they were in bed and sometimes asleep, or on one occasion, when asleep at a remote location with the applicant. The pattern of offending on each occasion commenced with the applicant indecently touching the child (usually by rubbing the boy’s penis). This repeated feature of indecently touching a child after that child has gone to bed and/or has fallen asleep is an unusual feature that is demonstrative, when considered together with the other features, of an underlying unity or pattern of activity that allows of no reasonable view of the evidence other than the guilt of the applicant on each charge. Accordingly, such evidence has strong probative force and, in my view, meets the test in Pfennig.

54. [54]
    It follows that the following groups of charges are cross admissible and therefore form a series for the purposes of s 567 of the Criminal Code and the probative force of each clearly transcends its prejudicial effect:

1. (a)
   counts 1 to 7;

2. (b)
   count 10;

3. (c)
   counts 27 to 29; and

4. (d)
   counts 32 to 36.

55. [55]
    I note, however, that within those groupings of charges, counts 6, 7 and 29 do not involve an allegation of offending conduct that occurred when either of the complainants were in bed and/or asleep. The absence of that feature however, does not mean that each of those charges is not cross admissible in relation to the charges concerning each of the other complainants. The pattern of alleged offending for each complainant (excluding the single instance the subject of count 10) reveals that the applicant initially approached each complainant when they were in bed/asleep and then his behaviour progressed to more brazen conduct as time passed. If anything, it is further evidence of an underlying unity or pattern of activity that allows of no reasonable view of the evidence other than the guilt of the applicant.

56. [56]
    Count 7 is of a different nature, in that it is a charge of assault occasioning bodily harm whilst armed. It involves an allegation of the applicant poking the complainant in the bottom, testicles and penis with a cattle prod after the complainant resisted his sexual advances. Senior Counsel for the applicant has submitted that if I were to conclude that the charge relating to this complainant could be joined and tried together with charges involving one or more of the other complainants, then I should, in the exercise of my discretion, order that that charge be tried separately because of its heavy prejudicial effect.

57. [57]
    I do not agree with that submission. The respondent has indicated that it intends to lead evidence of violent and intimidatory conduct that was shown to the complainants by brothers and teaching staff (including the applicant) at the facility at and around the time of the subject offences. The applicant has not raised any objection to such evidence, and assuming that evidence of that nature is led at trial, then the behaviour the subject of count 7 is just another example of it – albeit in the context of it occurring when resistance to sexual offending was offered.

58. [58]
    Any unfair prejudicial effect from such evidence would be minimal and can be effectively and adequately addressed by appropriate judicial direction to the jury.

Orders

1. The application is allowed to the extent that the following groups of charges are to be tried separately from each other:

1. (a)
   counts 8 and 9;

2. (b)
   counts 11 to 15;

3. (c)
   counts 16 to 23;

4. (d)
   counts 24 to 26; and

5. (e)
   counts 30 and 31.

2. The application is dismissed in respect of the following groups of charges, and they can be tried together:

1. (a)
   counts 1 to 7;

2. (b)
   count 10;

3. (c)
   counts 27 to 29; and

4. (d)
   counts 32 to 36.