R v FVN[2019] QDCPR 55

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant defendant is charged on one indictment with a total of 31 offences alleged to have been committed against six complainants.  Most of the offences are of a sexual nature (rape, attempted rape, carnal knowledge and indecent treatment of a child), while seven are for assault occasioning bodily harm.  The offences allegedly occurred while each of the complainants was a child.  Each of the complainants is a natural or stepchild of the defendant.

2. [2]
   By this application, the defendant seeks an order that there be separate trials of the charges concerning each complainant, on the grounds that they have been impermissibly joined in one indictment because the indictment does not contain a series of offences of the same or a similar character,^[1] or because the evidence in respect of each complainant is not admissible in the trial against the other complainants.^[2]

3. [3]
   The defendant accepts that all the charges involving each complainant are properly joined in one indictment and should proceed to trial together. However, he submits that each complainant’s allegations should be tried separately from each other complainant’s allegations, so that there are six separate trials.

4. [4]
   The Crown accepts that six charges, alleging assault occasioning bodily harm to the defendant’s biological son, FC, should be tried separately from the other counts, as none of them is sexual in nature. Accordingly, I do not need to consider those any further, although I will make the appropriate order. The Crown submits that all other charges are properly joined and should be tried together, with the evidence of each complainant about the alleged offending conduct toward her or him being admissible in the trial of the charges involving each other complainant.

5. [5]
   The Crown submits that the charges are properly joined in one indictment because they constitute a series of offences of the same or similar character. It contends that evidence of each of the offences is cross-admissible in the trial of the offences against each of the complainants because the offences constitute similar facts or evidence of the defendant’s propensity to offend in a sexual way against his young children or step-children.

The relevant factual circumstances

6. [6]
   The circumstances of each alleged offence are substantially agreed by the parties for the purposes of this application. Rather than going into full details of the facts alleged concerning each count, I shall attempt to describe the relevant facts in more global terms.^[3]

7. [7]
   The defendant is a male now aged 71, who was aged 29 to 51 years during the period of the alleged offences. Those offences are alleged to have occurred between about May 1978 and July 2000. The complainants, other than FC, are three biological daughters, one step-daughter and one step-son of the defendant.

8. [8]
   It is necessary briefly to describe the nature and essential facts of the charges, grouped by complainant, in order to understand the parties’ submissions.

9. [9]
   Eleven counts concern the defendant’s first biological daughter from his first marriage, AC. The charges are all of a sexual nature, apart from one of assault occasioning bodily harm. They are alleged to have occurred on unknown dates in a number of different periods between May 1978 (when AC was 6 years old) and January 1988 (when she was 15 years old). The sexual offences are mostly alleged to have taken place in AC’s bedroom, although on one occasion they were in a car, on another occasion they were at a swimming hole and on another occasion they were camping. The alleged offences involve such acts as making her touch his penis, touching her genitals and masturbating her, masturbating in front of her or making her masturbate him, rubbing his penis on her genitals, penetrating her vagina and her anus with his penis, putting his penis in her mouth and using an electric neck massager to stimulate her clitoris. On occasions he told her that she needed to learn about these matters, or that he was doing things to make her feel good. The assault concerns the defendant allegedly striking AC’s legs with a whip when she was 7 years old. As the defendant accepts that all AC’s complaints should be tried together and has not made any point that this count should be separately tried if the other counts are tried with those concerning AC, I do not need to consider this count separately from the others.

10. [10]
    Five counts concern the defendant’s second biological daughter from his first marriage, BC. The charges are all of a sexual nature and are alleged to have occurred on unknown dates between October 1987 (when BC was 7 years old) and February 1991 (when she was 11 years old). The offences are alleged to have been committed in the defendant’s bedroom when she visited him. They allegedly involved making her masturbate him, attempted and actual penile penetration of her vagina, putting his penis in her mouth and using an electric neck massager to stimulate her clitoris, telling her it would feel good.

11. [11]
    Six counts concern the defendant’s step-daughter from his fourth marriage, CC. Again, the charges are all of a sexual nature. They are alleged to have occurred on unknown dates between December 1997 (when CC was 12 years old) and July 2000 (when she was 15 years old), in either his bedroom or hers. They allegedly involved putting his penis in her mouth, rubbing his penis on her vagina and masturbating until he ejaculated onto her.

12. [12]
    Two counts concern the defendant’s biological daughter from his second marriage, DC. The offences are alleged to have occurred on unknown dates between March and September 1999, during which time DC was 13 years old. DC says that the defendant rubbed her breasts, telling her that that would make them grow bigger, and that he put his hand into her pants and held it on her pubic hair. The offences allegedly occurred in a bedroom (neither his nor hers) in the house where they were both living.

13. [13]
    Finally, one count concerns the defendant’s step-son from his fourth marriage, EC. He says that, on an unknown date between March 1996 and March 2001 (when he was between 7 and 11 years old), in the defendant’s bedroom, the defendant rubbed EC’s penis, making it erect, and said “you’re getting bigger”.

The applicable principles

14. [14]
    The starting point, in considering this application, is the Criminal Code.  Section 567(2) provides:

“Charges for more than one 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.”

15. [15]
    Section 597A of the Code gives the court a discretion to direct that charges, joined in conformity with s 567(2), be separately tried if their joinder may result in prejudice or embarrassment to the accused in his defence, or if it is otherwise desirable. The section provides:

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

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

16. [16]
    Section 132A of the Evidence Act similarly provides:

“132A Admissibility of similar fact evidence

In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.”

17. [17]
    Generally, multiple charges of sexual offences should not be tried together except where the evidence of one count is admissible on the other counts. This is because this type of case is particularly likely to give rise to prejudice against the defendant, against which a direction to the jury is unlikely to guard sufficiently.^[4]

18. [18]
    For similar fact evidence to be admitted:

• it must have a strong degree of probative force;
• the probative force needs to be so significant that it transcends its prejudicial effect to the accused;
• that requirement may be fulfilled either by evidence showing a “striking similarity, unusual features, underlying unity, system, pattern or signature” (although those characteristics are not essential prerequisites for admissibility^[5]), or by some other feature of the evidence revealing the required probative value;
• there must be no reasonable view of that evidence consistent with the innocence of the accused; and
• the evidence must also have a specific connection or nexus with the primary evidence of a particular charge.

19. [19]
    The proper approach to the question of admissibility of propensity or similar fact evidence was described by the High Court in Pfennig v The Queen.^[6]  In particular, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation must be such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.

20. [20]
    The criterion of the admissibility of similar fact evidence is the strength of its probative force. That strength lies in the fact that the evidence reveals common characteristics such as those described above, so 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.^[7]  When the events which are said to bear to each other the requisite degree of similarity are themselves in issue, the central question is that of the improbability of similar lies by the various witnesses.^[8]

21. [21]
    The evidence must be taken at its highest. For the purposes of this application, it is not necessary for the court to be satisfied that the similar fact evidence, standing alone, demonstrates the guilt of the defendant of the offences with which he is charged. Rather, it must be considered in the context of the full prosecution case and on the assumptions that it is true and that the prosecution case may be accepted by the jury. If, on those assumptions and in that context, there is a reasonable view of the similar fact evidence that is consistent with the accused’s innocence of the charge, then the evidence must be excluded.^[9]

The applicant’s submissions

22. [22]
    Counsel for the defendant submitted that:

1. joinder of the offences at trial will irrevocably prejudice the accused; that prejudice would be overwhelming and there is no identifiable probative value that outweighs it;

2. there is no striking similarity between the conduct in each case that renders the alleged conduct against each complainant admissible in the case of each other complainant as proving a propensity in the defendant to commit any particular type of offence;

3. even if there were similar fact evidence as between complainants, particular and limited evidence of one complainant could be led in the trial concerning another complainant where that particular evidence was cross-admissible in respect of a charge involving another complainant, without the prejudice inevitably arising in a joint trial;

4. while there are certain underlying features in common between some of the alleged offences, the similarities are non-specific and at a generalised level that does not invest the entirety of each complainant’s account with the degree of cogency required for admissibility in proof of the entirety of the particular offending conduct alleged by every other complainant;^[10]

5. to be capable of being tried together, it is necessary that every part of each complainant’s evidence must be cross-admissible in respect of every offence alleged by each other complainant, which is not the case;

6. there are obvious and significant differences in the conduct attributed to the offender by each complainant and these differences are such as to preclude the formulation of an underlying pattern in the offending conduct; the most pertinent differences are:

1. AC’s evidence is of conduct principally occurring in her bedroom, in contrast to others where it mostly occurred in the defendant’s bedroom, and conduct that was serious from the start (rape) rather than an arguable progression in seriousness in the cases of others;

2. as to EC, the offending concerns a boy, not a girl, and there is no sufficient nexus with the other counts, whether in time period, nature of the alleged conduct or where it occurred;

3. DC’s evidence is of a very different sexual nature to that involving the other girls, centring as it does on touching her breasts and then touching the area of her genitals in a passive manner, and in neither case progressing to more serious conduct; and it is entirely different in nature to many of the alleged offences against other complainants;  it also differs from others in that the defendant is not alleged to have been purporting to educate her in sexual matters, but rather allegedly helping her body to grow physically;

4. CC’s evidence is of conduct allegedly occurring in the defendant’s bedroom in most instances, rather than in her bedroom or that of other children (in contrast especially to AC, where the conduct occurred in her bedroom or in locations outside the house, and also contrasting with DC) and it is of completely different touching, at completely different times and in different circumstances, to the allegations by others, particularly AC;

5. while the account of BC is perhaps most similar to that of AC – both because of the alleged use of a massager on some occasions and because of the nature of the acts done to each of them – it has limited probative value, there is nothing striking or unusual in the alleged offending against either girl such that they have a specific connection, and there is no similarity with some of the other alleged offences, such as that against AC in the swimming hole;

6. having regard to the differences between the accounts and the circumstances in which at least some of the alleged offences occurred, there is not sufficient underlying unity for all the evidence to be cross-admissible in all the complaints;

7. there is no proper basis to join the complaints in one trial, nor could any directions to the jury overcome the prejudice to the defendant of having all charges heard together.

The Crown’s submissions

23. [23]
    Counsel for the Crown submitted that each of the offences alleged is of the same or a similar character, occurred when the defendant was caring for his child or stepchild, involved the exercise by the defendant of his authority over those children and therefore forms part of a series of offences of the same or similar character, enabling them to be joined in one indictment. They are also so similar in character and specific conduct that they are mutually cross-admissible.

24. [24]
    The Crown submitted that the following factual similarities exist, demonstrating a factual nexus:

1. the alleged offending conduct was sexual in nature;

2. in many cases, the defendant asserted to the complainant that the conduct had an educational quality, or another quality of helping the complainant;

3. the alleged conduct was committed on the same character of victim, being the defendant’s young children or step-children of a similar age range, depending on when he had access to them;

4. the relationship with each complainant was identical, in the sense that the defendant, as father or step-father, had a position of dominance and authority over the complainant;

5. there was temporal proximity to some of the alleged conduct, but particularly in terms of the complainants’ age ranges during which the alleged conduct occurred;

6. mostly the alleged conduct occurred in the family home or while the family was out as a family unit;

7. some of the alleged conduct was quite brazen, such as when other children were in the house or otherwise nearby, so there was often a risk of discovery;

8. there were marked similarities in the acts constituting the alleged conduct, including engaging in simulated sex with the defendant’s penis rubbing against the outside of the complainant’s vagina, in some cases of penile penetration of the vagina, the defendant masturbating and ejaculating on or near a complainant, touching or rubbing a complainant on or around the vagina and the clitoris or, in the case of EC, his penis, making the complainant masturbate him or perform fellatio on him, and in two cases using a massager to stimulate the complainant’s clitoris.

25. [25]
    The Crown submitted that the purpose of seeking to lead all the evidence in respect of all the complainants is to prove a tendency in the defendant to have a sexual interest in his children or step-children under the age of 16 and to engage in sexual activities with them opportunistically, using his familiar relationship to have access them, and often using educational overtones in respect of his sexual conduct.

26. [26]
    Counsel submitted to the effect that the evidence has significant probative force, stemming from the overwhelming improbability that each of these five complainants would, without colluding, falsely allege that the defendant engaged in sexual activity toward her or him in such similar surrounding circumstances and in such similar ways.^[11]  That evidence can permit of no other explanation than his guilt.

Consideration

27. [27]
    The parties’ submissions were directed principally to the question whether the evidence in respect of each complainant was admissible in the trials concerning the other complainants. Very little was said about whether the offences had been properly joined in one indictment under s 567.  The Crown referred to Ludlow v Metropolitan Police Commissioner^[12] as authority for the proposition that, to constitute a series of offences, there must be some nexus between the offences.  Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.

28. [28]
    In my view, the similarities between the offences in this case, where the defendant is alleged to have committed many sexual offences, mostly sequentially, against a number of his children and stepchildren as and when he had an opportunity to do so, permit the offences to be described as a series of offences that, prima facie, may be joined together in one indictment under s 567.

29. [29]
    However, it is still necessary to consider whether I should exercise my discretion under s 597A to direct that some of the charges be tried separately from the others because the defendant may otherwise be prejudiced or embarrassed in his defence.

30. [30]
    Relevant to that question is whether the evidence of one count is admissible on the other counts. I now turn to consider whether that is the case here. In doing so I must assume that, at the trial, the jury would accept the evidence of each complainant as true and that the prosecution case may be accepted by the jury. That is, I take the Crown’s evidence at its highest and in the context of the entire prosecution case.^[13]

31. [31]
    In McNeish, Sofronoff P and Henry J outlined four potential purposes of leading similar fact evidence.  Most relevantly, two purposes were said to be:

1. to demonstrate the sexual attraction felt by the accused so as to show a motive to commit the offence (“motivation evidence” or “relationship evidence”); and

2. 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).^[14]

32. [32]
    The defendant’s counsel sought to derive significant support from Gotterson JA’s reasons in R v Nibigira.^[15]  She referred me in particular to paragraphs [70] and [91] and to his Honour’s conclusion at [104] that, in that case, there were obvious and significant differences in the conduct alleged against the appellant in committing the two penile rapes alleged.  His Honour went on to express the view that the differences precluded the formulation of an underlying pattern in the mode in which the alleged penile rapes were committed.  Similarly, his Honour concluded at [105] that the respective bodies of evidence of two other complainants, about other offending that allegedly occurred in the appellant’s residence, lacked an underlying unity and hence a strong degree of probative force.  Finally, his Honour’s view, expressed at [106], was that, while there were similarities at a generalised level, that level of generalisation did not invest the entirety of each complainant’s account with the degree of cogency required for admissibility in proof of the entirety of the particular offending conduct alleged by every other complainant.

33. [33]
    The defendant’s counsel submitted that, in similar fashion, in this case many of the similarities between the alleged offences and their alleged circumstances are of a generalised nature that does not give rise to the necessary degree of cogency required for admissibility in each complainant’s case. She submitted that there was not a strong degree of similarity and cogency in this case between each complainant’s evidence about what allegedly occurred to her (or him) and the evidence of the other complainants. Thus, although some parts of one complainant’s evidence may be sufficiently similar to that of another complainant to be admissible in a trial concerning each of those complainants,^[16] many other parts are not sufficiently similar to admit of that possibility.  Therefore the charges involving each respective complainant must be tried separately from those of the other complainants, even though there may be some limited cross-admissibility of parts of some separate complainants’ evidence.

34. [34]
    The defendant’s counsel contrasted some of the allegations made by different complainants with those made by AC, in order to demonstrate the dissimilarity between the respective allegations and therefore that they are not admissible in proof of the offences alleged concerning AC. For example, she compared DC’s allegation that the defendant rubbed her breasts and told her that doing so would make them grow bigger with AC’s evidence that, while the family were at a swimming hole, the defendant put his finger into her vagina. Counsel submitted that those alleged offences were so different, both in nature and circumstances, that one could not be admissible in proof of the other. Counsel also gave several other examples of differences between AC’s allegations and those of other complainants.^[17]

35. [35]
    Counsel’s efforts in this regard were certainly demonstrative of differences between some of the alleged offences and the circumstances in which they are alleged to have taken place. However, it is not correct to compare exhaustively each alleged offence with each other allegation. Rather, in considering whether evidence of one complainant is admissible in the trial of another complainant’s allegations, I must consider them all in context of the complete Crown case in respect of the latter complainant, taken at its highest.

36. [36]
    Further, as the majority made clear in McNeish, “in sexual offences, it is not necessary that the particular acts that constitute the uncharged offences and the particular acts that constitute the charged offences be of the same kind.  Evidence of uncharged sexual offences may be relevant and highly cogent even if the acts that constitute those offences are different from the charged offence.”^[18]

37. [37]
    The facts in Nibigira were, of course, unique to that case (as they are in every case) and are different from the facts in other matters.  So much was acknowledged expressly by Gotterson JA in distinguishing Nibigira from the appeal before the Court in R v Davidson.^[19]  His Honour agreed with the reasons of McMurdo JA for dismissing the appeal in that case.  McMurdo JA noted that the result of the appeal rested on the answer to the question whether the evidence of each complainant on a charge of sexual assault was admissible for each of the charges of rape, and vice versa.^[20] 

38. [38]
    In Davidson, the Court considered a submission that the evidence of separate rape and sexual assault charges were not probative of each other.  In rejecting that proposition, McMurdo JA quoted and relied on a passage in the High Court’s reasons, in R v Bauer^[21], concerning multiple complainant sexual offence cases that is equally applicable here.  I extract what I consider to be the most relevant parts of that passage:

“… the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together.  …  if … there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.”

39. [39]
    McMurdo JA went on to say that, to be admissible on this basis, there had to be such a link between the facts and circumstances of one offence and the others that the evidence had a degree of probative force which warranted its admission, notwithstanding its potential prejudicial effect.^[22]

40. [40]
    The majority in McNeish gave detailed consideration to the High Court’s decision of Hughes v The Queen.^[23]  In Hughes, the Crown had sought to tender the evidence of a number of children, in a single trial of charges of alleged offences against each of the children.  The Crown sought, by that evidence, to prove that the defendant had a tendency to act in a particular way and with a particular state of mind, namely that he had a sexual interest in young children and was willing to act on the interest by engaging in sexual acts with the complainants.  As described by the President and Henry J in McNeish, the majority in Hughes held that, since the relevant issue to be proved was whether the accused had committed the offence, proof of the tendency identified by the prosecution itself had significant probative value.

41. [41]
    Their Honours in McNeish noted that, in Hughes, the majority had regarded an inclination on the part of an adult to engage in sexual conduct with underage girls, coupled with his willingness to act on that inclination, as itself an unusual disposition according to human experience.  The evidence did not reveal a strict pattern of conduct, but that did not mean that it was inadmissible.  The force of the evidence was that it rendered each complainant’s account of misconduct by the appellant less liable to be rejected as unworthy of belief as an isolated incident.  The probative value of the evidence lay in proof of his tendency to act on the sexual attraction he felt towards underage girls.  The fact that he acted out his sexual interest in a variety of ways did not deprive the proof of its significant probative effect.^[24]

42. [42]
    Their Honours went on to say that that logic is equally applicable under the common law. It requires a judge considering evidence of uncharged acts against multiple complainants to consider four questions.^[25]

1. First, what is the factual issue that the Crown seeks to prove by the evidence?

• In this case, it is that the defendant had a tendency to have a sexual interest in his children or step-children while they were under the age of 16 and to engage in sexual activities with them using his familial relationship and opportunities to obtain access to them.

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

• For reasons discussed below,^[26] I consider that the various complainants’ evidence, if accepted, could prove to the satisfaction of a jury that the defendant had that tendency.

3. Thirdly, whether the evidence of the acts alleged by one complainant (to which their Honours referred as the uncharged acts), if accepted, contains some feature which links the doing of the uncharged acts with the charged offences relating to another complainant by reference to a particular issue in the case.  That feature may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the charged offences is true.

• In my view, the evidence of each female complainant has features that, if accepted, link her evidence with the allegations concerning the other female complainants.  I expand on the reasons for this conclusion below.^[27]

4. Fourthly, whether the probative force of the evidence, on the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect constituted by the risk that the jury will use it for an impermissible purpose.

• I accept that, at face value, the evidence of each complainant will be prejudicial, in the ordinary sense of that word, to the defendant when it is taken into account in considering the complaints and evidence of other complainants.  However, the trial judge will be able to give clear instructions to the jury about the use of each complainant’s evidence in considering each of the charges concerning the other complainants.  Those instructions should be sufficient to guard against the relevant prejudice.  The probative value of the various complainants’ evidence is significant and, in my view, outweighs the risk of the relevant prejudice.

43. [43]
    Counsel for the defendant sought to distinguish McNeish, mostly on the basis that the complainants in that case were all in the one household at the one time and the defendant groomed them and had access to them by being their neighbour.  Here there is a much broader period of time and different places where the offending conduct allegedly occurred.  She submitted that McNeish must be considered in light of those different circumstances to the offending.  In this case, the differences between the offences alleged by the respective complainants are so great and so many that it is not comparable with the facts in McNeish and the Court’s conclusions there are not apposite here.

44. [44]
    While of course there are differences in both the alleged acts and the circumstances in this case, when compared with McNeish or any other case, that does not result in the discussion by the majority in that case being inapposite to this case.

45. [45]
    I do not accept that the differences between the incidents, as described by counsel for the defendant, are as significant as she submitted. They do not demonstrate such clear differences in modus operandi or types of conduct that, of themselves, they overcome the similarities between the alleged incidents. The differences in locations where the defendant is alleged to have committed the offences are in my view immaterial. They derived from opportunities stemming from his familial relationship with the complainants, rather than any different modus operandi. The differences in some of the types of conduct that the defendant is alleged to have committed are also matters of detail or opportunity or to some extent reflect the complainants’ differing responses to the alleged conduct. Some of those responses may also reflect differences in the complainants’ ages at the times of the alleged offending.

46. [46]
    There are obvious and, in my view, striking similarities between the evidence of the various female complainants, mostly along the lines of those summarised by counsel for the Crown.^[28]  The differences (including the more limited conduct in the case, particularly, of DC) do not remove the overwhelming nature of the evidence, in the case of each female complainant, that, if accepted, has a clear tendency to demonstrate the defendant’s predisposition to committing offences against what might be called a captive pool of pre-pubescent or barely pubescent females, each of whom was, at the times and in the circumstances of the offending, under the defendant’s authority and care as his child or stepchild.^[29]

47. [47]
    Even DC’s evidence may be seen as demonstrative of the defendant’s alleged modus operandi of taking advantage of his daughter or step-daughter for his own sexual gratification, with an invented justification for the conduct. It would be open to a jury to conclude that what might be seen as hesitation on the defendant’s part in taking it further may derive from the facts that both the defendant and DC were older than he and the respective complainants were on the earlier occasions.

48. [48]
    The other differences in the specific details of the alleged conduct against the various complainants appear to me to be differences in detail that a jury might consider to be immaterial in the overall context of the Crown’s case concerning each complainant. They are still relevant and highly cogent to proof of his alleged tendency.

49. [49]
    I consider that it would be open to a jury to conclude that the similar fact evidence as between the four female complainants is unequivocal in adding to the overall force of the evidence proving each charge. In respect of every charge for each female complainant, the evidence of the other female complainants may be seen to increase the probability of the evidence concerning the charged offence being true. The significant probative value of the female complainants’ similar fact evidence may therefore so enhance the collective force of the relevant prosecution evidence as to leave no reasonable view of the similar fact evidence consistent with the defendant’s innocence.^[30]  For the purpose of determining this application, that seems to me to be the case.

50. [50]
    Having regard to these matters, I consider that the evidence concerning each of the female complainants is admissible in the trial of the charges concerning each other female complainant. Those charges may properly be tried together.

51. [51]
    Even in the case of count 23, involving the defendant’s step-son, EC, despite the obvious difference that he is a boy, not a girl, there are substantial similarities between EC’s account and those of the other complainants. According to EC’s evidence, the alleged offending occurred in the defendant’s bedroom and bed; EC was between 7 and 13 years old at the time; the defendant took advantage of a practice that EC had of going into the defendant’s and EC’s mother’s bedroom for a morning cuddle on the weekends, and would engage in the offending conduct on occasions when EC’s mother was not present.

52. [52]
    However, in EC’s case, I do not consider that the entirety of the female complainants’ evidence has a sufficient probative value to outweigh its prejudice to the defendant. The facts (if accepted by the jury) that the defendant had a sexual interest in his daughters and step-daughters and dealt with them in the ways they describe do not necessarily lead to the conclusion that he also dealt with EC in the manner he describes, nor that he had a tendency to have a sexual interest in EC, or in young boys. Therefore, there is a reasonable view of the whole of the female complainants’ evidence, considered in the context of the prosecution’s case, that is consistent with the defendant’s innocence of the charge concerning EC.

53. [53]
    Conversely, the fact (if accepted by the jury) that the defendant dealt with EC in the way he describes does not necessarily lead to the conclusion that he also dealt with his daughters and step-daughters in the manner they describe.

54. [54]
    Thus, in my view, the female complainants’ evidence is not, at least in its entirety, admissible in the trial of the charge concerning EC and EC’s evidence is not admissible in the trial of the charges concerning the female complainants. Therefore the charge concerning EC should be tried separately from the charges concerning the female complainants.

Conclusion

55. [55]
    For these reasons, I will allow the application in part and make the following orders:

1. count 23 on indictment number 2351/19 be tried separately from the other counts;

2. counts 4, 5, 7, 12, 13 and 14 on indictment number 2351/19 be tried together, but separately from the other counts;

3. the application filed on 9 August 2019 otherwise be dismissed.