R v LDP[2020] QDCPR 81

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   The applicant, LDP, is charged on a single indictment before the District Court of Queensland at Ipswich, with 40 counts alleging sexual offences against a total of 18 complainants.

2. [2]
   This is an application pursuant to s 590AA of the Criminal Code for a ruling that the evidence, outside of identified groups of charges, is not cross-admissible; and an order for separate trials of the identified groups of alleged offences.

3. [3]
   I have reached the conclusion the evidence in support of all counts, except for count 11, is admissible in proof of all other of those counts; that the evidence in support of count 11 is not admissible in proof of any other count; and that the evidence in support of all other counts is not admissible in proof of count 11. Accordingly, a separate trial of count 11 should occur.  Following are my reasons for these conclusions.

Material

4. [4]
   The material admitted on the hearing of the application and marked as exhibits as follows.

1. Applicant’s written submissions dated 13/3/2020
2. Respondent’s written submissions dated 20/3/2020
3. Further material as per index
4. Respondent’s further written submissions dated 2/6/2020
5. Applicant’s further written submissions dated 22/6/2020

5. [5]
   Exhibit 3 includes the following:

5. Statements of C1 dated 8 May 2015, and 2 February 2016
6. Statement of C14 dated 1 September 2015
7. Statement of C15, dated 10 September 2015
8. Statement of C3, dated 18 November 2016
9. Transcript of police interview with C12 undated and transcript of police interview with C12 dated 22 November 2016
10. Transcript of police interview with C9 dated 10 October 2014 and statement of C9 dated 6 February 2016
11. Transcript of police interview with C16 dated 17 August 2014, statement of C16 dated 7 January 2015 and statement of C16 13 April 2016
12. Transcript of police interview with C17 dated 16 August 2014, statement of C17 dated 16 August 2014 and statement of C17 dated 9 November 2017
13. Transcript of police interview with C18 dated 16 August 2014, Transcript of s 93A interview with C18 dated 16 August 2014, statement of C18 dated 19 January 2015 and statement of C18, dated 14 August 2016
14. Statement of C5, dated 25 January 2015
15. Statement of C10, dated 28 May 2015
16. Statement of C7, dated 02 April 2014
17. Transcript of police interview with C13 dated 7 June 2015
18. Statement of C8, dated 17 February 2015
19. Statement of C2, dated 22 July 2015
20. Statement of C6, dated 19 January 2016
21. Statement of C11, dated 15 July 2015
22. Transcript of police interview with C4 dated 29 May 2015 and transcript of police interview with C4 dated 7 June 2015
23. Statement of S dated 21 August 2014 and statement of S dated 12 April 2016
24. Transcript of police interview with C19 dated 16 August 2014, statement of C19 dated 16 August 2014, transcript of police interview with C19 on 17 August 2014 and statement of C19 dated 3 February 2016
25. Transcript of committal hearing at Ipswich Magistrates Court on 7 March 2018

Prosecution case

 Charges

6. [6]
   The indictment charges 40 counts as follows:

7. [7]
   The accounts of the relevant witnesses, as contained in the further material referred to in the index (Ex 3) is set out below.

C1 (counts 1 & 2)

8. [8]
   C1 was born on 16/5/1990; he is now aged 30 years. C1 provided statements to police dated 8/5/2015, and 2/2/2016. C1 came to know the defendant through friendship with the defendant’s son, S. C1 was a regular visitor to the Defendant’s residence at Riverview. When he was aged 16 years the defendant twice anally raped him. The first occasion occurred in bushland at Riverview where C1 went to meet up with S. On this occasion S was riding his motorbike in the bush and the defendant was there in his white Toyota Hilux utility. C1 recalls being bent over the tray of the utility and feeling pain, and then running from the bushland and walking home. When he got home, he had a bath and was bleeding from his bottom. He told his stepfather what happened about a week later.

9. [9]
   The second rape occurred about 4 weeks later. C1 went to the defendant’s residence to see S, but he was not at home. The defendant wanted to show him something in the defendant’s bedroom. The defendant closed the door, pushed him onto the bed, and pulled his shorts and underwear off. C1 remained lying face up on the bed, the defendant put C1’s legs into a sex swing that was attached to the ceiling above the bed, and inserted his penis into C1’s anus. The defendant masturbated C1 while continuing to have anal intercourse with him. C1 told the defendant to stop but he continued. When the defendant stopped, C1 dressed and went home. He had pain in his bottom. C1 later told his stepfather what had occurred.

10. [10]
    Sometime in 2015, a male named C13, aged about 13 years, told C1 the defendant touched him on the bottom and front. C1 called C13’s mother and told her of that complaint. C1 also confronted the defendant about this, however the defendant denied touching C13.

11. [11]
    In evidence at committal, C1 acknowledged difficulty remembering details of events. C1 could not remember how he came to be in the bushland or why he was there, or what happened when he was there.  All C1 could recall was that when he was 16, something happened in the bush, he later told his mother who complained to police, but they did not take action. C1 also said he could not recall detail of the occasion in the bedroom apart from feeling pain in his bottom. C1 said he had tried to block things out from his memory.

C2 (counts 3 & 4)

12. [12]
    C2 was born on 6/10/1998; he is now aged 21 years. C2 provided a statement to police dated 22/7/2015. C2 was friends with S and lived in the same street. A few days before his 10^th birthday he took part in a competition at Riverview skate park and S also competed. After, he went to the defendant’s house where he met the defendant for the first time. Once C2 was inside the house, the defendant locked the front and back doors and touched his bottom and tried to kiss him on the lips. C2 pushed the defendant away and ran out through another door but didn’t tell anyone what occurred.

13. [13]
    A few weeks later C2 again went to the defendant’s house and was in S’ bedroom. When C2 left to go to the toilet, the defendant grabbed him around the waist and tried to pull his pants down. The defendant was on his knees with his mouth open near C2’s penis area, as if ready to suck his penis. C2 kneed the defendant in the chin, then took his belongings and left. The defendant yelled after him that he would come to C2’s mother’s house and “fuck you in the arse”. S was present and witnessed this incident. 

14. [14]
    C2 later heard complaints from others about the defendant. Eventually, “everyone started telling everyone” what the defendant had done to them. C18 said the defendant touched his bottom and tried to kiss him. C12 said he sucked the defendant’s penis for two pouches of tobacco. C5 said the defendant touched his penis and bottom and almost kissed him. C2 named four females who complained the defendant touched them.

C3 (count 5)

15. [15]
    C3 was born on 18/4/1997; he is now aged 23 years. C3 provided a statement to police dated 18/11/2016. He met S at a skate park at Riverview. When he was aged 13 or 14, he stayed one night at the defendant’s house after running away from his mother’s place. He smoked cannabis at the house and slept in a spare room. The next morning between 5.00am and 6.00am, the defendant woke C3 by pulling on the draw string of his pants. The defendant told him to be quiet and not wake S, and C3 told the defendant to “fuck off”. C3 pushed the defendant away but the defendant held him down and put his hand over C3’s penis area and tried to grope him. C3 was yelling, pushed the defendant away, grabbed his gear and left the house. The defendant grabbed C3 by the wrist, C3 hit the defendant with his scooter and ran off. This was the only time C3 had contact with the defendant.

C4 (counts 6 & 7)

16. [16]
    C4 was born on 27/7/1999; he is now aged 20 years. C4 took part in recorded interviews with police on 29/5/2015 and 7/6/2015. C4 was good friends with S. C4 first met the defendant when the defendant drove C4, S, and C5 to a skate park at Beenleigh. On the way they stopped at a service station. When the others got out, the defendant locked the doors, handed a $20 note to C4 and said that was so he could play with him. The defendant then put his left hand up C4’s shorts and touched his penis. C4 tried to push the defendant’s hand away. When the others returned the defendant stopped. They then continued to Beenleigh and went to the skate park.

17. [17]
    Some time around the end of 2011, C4 went with another male to the defendant’s house to see S. While waiting for S to shower, the defendant gave him $20 to “suck you off”, took C4’s wrist and led him into the shed, put his hand over C4’s mouth, pulled C4’s pants down and began sucking his penis. C4 pushed the defendant away and tried to run from the shed but ran into the door and knocked himself unconscious. C4 woke up lying on the ground with S and the other male applying a bag of peas to his head. The defendant was no longer there.

18. [18]
    In about mid June 2011, C4 stayed at the defendant’s house. C4 was playing X-box with S and S fell asleep. C4 then lay on the couch in the lounge and fell asleep. C4 awoke to the defendant leaning over and asking to come and sleep in his bedroom. C4 told the defendant to get away and punched the defendant in the nose. The defendant left and C4 went back to sleep. 

C5 (counts 8, 9 & 13)

19. [19]
    C5 was born on 17/12/1997; he is now aged 22 years. C5 provided a statement to police dated 25/1/2016. C5 was friends with S and lived across the street from him. He says the defendant made various attempts to “crack onto” him by complimenting him or touching him, for example by squeezing his bum. When C5 stayed at the defendant’s house and slept on the floor in S’ room the defendant would wake him during the night and try to convince him to come and sleep in his room, but C5 refused. The defendant showed C5 a swing in his bedroom that was hanging from the ceiling and C5 sat in it. S came in whilst C5 was sitting in the swing and said it was the defendant’s sex swing. When C5 was playing X-Box and sitting on the couch in the lounge room, the defendant sat next to him and asked if he wanted to suck the defendant’s penis. The defendant then started playing with C5’s penis but stopped when S returned. C5 told his mother what happened when he went home. C5 believes this event occurred when he was aged 14 and in grade 8.

20. [20]
    Another time C5 was at the defendant’s house, the defendant sat next to him on the couch and rubbed his leg. The defendant asked C5 if he wanted a massage and tried to kiss him on the lips but S returned and the defendant desisted. The defendant continued to try and “hit” on C5; the defendant would wink at him, slap his bottom, the defendant would say he was gay and liked boys, and ask if C5 wanted to suck his penis. When C5 was 15, the defendant grabbed C5 on the penis from behind whilst they were in the kitchen. C5 told his mother, C2 and SJ what the defendant did to him.  C5 was told by C2 the defendant had grabbed his penis. C5 was told by C8 the defendant tried to “hit” on him. C5 was told by C3 that he got $20 for sucking the defendant’s penis. A few times C5 saw C12 go into the defendant’s bedroom with the defendant and later emerge with tobacco.

C6 (count 10)

21. [21]
    C6 was born on 2/6/1998; he is now aged 21 years. C6 provided a statement to police dated 19/1/2016. C6 was friends with S and visited his house a number of times and met the defendant. When C6 was in grade 10 in 2013, he went to see S. The defendant answered the door and C6 asked him for a smoke. The defendant invited him inside and led him to his bedroom where he saw a swing hanging from the ceiling. The defendant was on his knees and massaging C6’s waist, asked if he’d ever had a “blow job”, and attempted to pull C6’s pants down. C6 managed to push the defendant’s hand away and ran out of the house. C6 did not visit the house again.

C7 (count 11)

22. [22]
    C7 was born on 1/3/1998; he is now aged 22 years. C7 provided a statement to police dated 2/4/2014. C7 was friends with S and therefore met the defendant. In the period from early 2012 to early 2013, C7 often stayed overnight. The defendant said or did things sexually suggestive. On one occasion C7 saw swings hanging from the ceiling of the defendant’s bedroom. The defendant showed how to sit in the swing, and asked C7 if he wanted to try and if he was into boys. When the defendant had a spa bath installed he told C7 they would be able to have a foursome with no girls allowed. At times the defendant simulated oral sex by pushing his tongue against his cheek and moving his hand towards his mouth, while looking directly at C7. On the last occasion C7 visited, the defendant showed C7 photographs on the defendant’s phone of males with their penis exposed and erect. When C7 told S of this, S complained, the defendant got upset, and ordered C7 to leave.

C8 (count 12)

23. [23]
    C8 was born on 21/8/1996; he is now 23 years old. C8 provided a statement to the police dated 17/2/2015. C8 was friends with S and visited his house and met the defendant. At about 10.00pm one night, C8 visited to ask S for a smoke. When C8 was at the front door smoking, the defendant offered to shake hands. When C8 also put his hand out the defendant grabbed his penis and started rubbing it. C8 then jumped off the patio. The defendant remarked he wished S had not come back because he was enjoying himself. C8 told the defendant to “fuck off” and left. C8 says this occurred sometime in about September 2013, just after he had turned 16 years. Some days later, C8 went to the defendant’s house and yelled abuse at him, smashed the letterbox and a window at the defendant’s house with a stick, and saw the defendant was recording on his phone. C8 returned home and soon after police arrived and arrested him and he was charged with offences of wilful damage and trespass. C8 says he was told by C6 the defendant had tried to put his hands down his pants.

C9 (counts 14, 15, 16, 17 & 20)

24. [24]
    C9 was born on 15/7/1998; he is now aged 21 years. He took part in a recorded interview with police on 10/10/2014 and also provided a statement dated 6/2/2016. C9 was friendly with S having met him at the skate park. C9 visited the defendant’s house many times and met the defendant.

25. [25]
    In early 2013, C9 went with the defendant to take S to a medical appointment. After they dropped S off, the defendant suggested they go to Mount Coot-Tha. There, C9 followed the defendant on a walking track. Eventually the defendant said he wanted to show C9 something and went into bushes that could not be seen from the track. The defendant then pulled C9’s pants down, pinned him to the ground on his back, and began sucking C9’s penis. The defendant was also masturbating himself. C9 tried to resist and told the defendant he was not gay. Eventually C9 ejaculated and the defendant was then rubbing his penis against C9’s buttocks and penis area. The defendant then told C9 he had to give the defendant a “blow job”. The defendant was then standing with C9 on his knees and the defendant pushed his penis into C9’s mouth and held his head. Eventually the defendant released his grip and C9 moved away. Both then pulled their pants up and returned to the vehicle. They picked up S and returned to the defendant’s house.

26. [26]
    During school holidays in 2013, the defendant, S and C9 were in the garage together, and the defendant asked S to get something from the house. The defendant then told C9 to step onto a ledge, he did and the defendant grabbed and rubbed his penis. When S returned the defendant desisted. The defendant would often try to grab C9’s penis or bottom. The defendant told C9 and C7 they could have a spa with him. C9 also saw his younger brother C12 go with the defendant into his bedroom; and C12 emerged with tobacco. C9 asked his brother what happened but C12 denied anything occurred. Once after going to the defendant’s bedroom, C9 saw his brother had some liquid on his shirt.

C10 (count 18)

27. [27]
    C10 was born on 6/7/1997; he is now 22 years. C10 provided a statement to police dated 28/5/2015. When C10 was aged 15, he met the defendant whilst both were riding bikes in bushland at Riverview. The defendant was riding with three males that he told C10 were backpackers from overseas. C10 again saw the defendant about a week later at the bridge at Dinmore. They spoke and the defendant followed C10. Eventually, when they were in a park, the defendant asked C10 to stop and pointed to some bushes. The defendant then stood behind C10 and put his hand into C10’s pocket and touched his penis. C10 told the defendant he should not have done that and punched the defendant in the head. C10 then ran off and did not see the defendant again. C10 told workmates what happened, one of whom said he would call police. The police later spoke with C10 at his work place.

C11 (count 19)

28. [28]
    C11 was born on 14/6/1998; he is now aged 21 years. C11 provided a statement to police dated 15/7/ 2015. C11 met S through his friend C8. C11 went to the defendant’s residence a number of times and met the defendant. When aged 15, C11 went to the defendant’s house and the defendant answered the door and said S was sick and could not come out. Before C11 could leave the defendant grabbed C11 on the bottom and stepped towards him. C11 punched the defendant and ran off. C11 told C8 what happened and C8 said the same thing happened to him.

C12 (count 21)

29. [29]
    C12 was born on 11/9/2000; he is now aged 19 years. C12 took part in recorded interviews with police in 2015 and on 22/11/2016. C12 was friends with S, often visited his house, and met the defendant. In the first part of 2014, C12 was at the house with S and asked the defendant for a smoke. The defendant took C12 by the hand and led him to the defendant’s bedroom and closed the door. The defendant pulled his own pants down and told C12 he had to suck his penis. The defendant pushed C12 to a kneeling position, pushed his penis into C12’s mouth, had hold of C12’s head, and moved it back and forward. After a short time, C12 started to get up, the defendant let go, and C12 left the room. When C12 left the house with S the defendant gave him a rolled cigarette. C12 saw a number of sex swings hanging from the ceiling in the defendant’s bedroom. C12 denied telling anyone what happened. C12 said he saw the defendant take C7 into his bedroom and close the door. Once, C12 saw another male was in the defendant’s bedroom and the defendant closed the door and blinds to his room.

C13 (counts 22, 23 & 24)

30. [30]
    C13 was born on 4/9/2001; he is now aged 18 years. C13 took part in an interview with police on 7/6/2015. C13 was friends with S and stayed overnight at his house and met the defendant. In about February 2014, when C13 was riding bikes with S and the defendant at Mount Coot-Tha, the defendant smacked C13 on the bottom. A few weeks later, the defendant grabbed C13’s bottom while in the laundry at the house. C13 then told S what happened. When C13 was with S and C1 in bushland pushing a quad bike that had broken down, the defendant followed them and grabbed C13 on the bottom. C14 told C1 who challenged the defendant. On another occasion, when C13 was sitting on the couch next to S and the defendant, the defendant put his hand on C13 thigh and moved it closer to his penis, before C13 moved away. Whilst C13 was in the shower, the defendant came into the bathroom and looked at him. C13 said there were perhaps 3 or 5 other occasions the defendant touched his bottom; e.g. when getting into the car or strapping something down on the car.

C14 (counts 25, 26 & 27)

31. [31]
    C14 was born on 13/2/1996; he is now aged 24 years. C14 provided a statement to police dated 1/9/2015. C14 was friends with S and visited his house where he met the defendant. In about March 2014, C14 was at the house with S, KL, C17, C16, C19, SJ and C2. The defendant called them one at a time into his bedroom, apart from C14 and S. C14 says each emerged crying after about half an hour. The defendant next grabbed C14 by the arm and tried to drag him into the bedroom but C14 resisted. S tried to intervene and the defendant punched S in the nose. In the course of this the defendant put his hand inside C14’s underpants and grabbed his penis.

32. [32]
    Later, C14 was lying face down on the couch watching TV and the defendant pulled his pants down, held his hands behind his back, lay on top of him and inserted his penis into C14’s anus. This continued for about 10 minutes until S and C19 were able to pull the defendant off C14 and restrain him. C14 got up, pulled his pants up and ran outside. C14 told C16 the defendant had touched him. Later still, the defendant was seated on the couch on his own and C14 sat at the other end of the couch. The defendant then slid along next to C14 and put his hand down C14’s pants, outside his underwear. C14 moved away. C14 later told C17 the defendant touched him and C17 said the defendant touched him also.

C15 (counts 28, 29, 30, 31 & 32)

33. [33]
    C15 was born on 24/6/1999; he is now aged 20 years. C15 provided a statement to police dated 10/9/2015. C15 was friends with S and visited his house and met the defendant. In 2014, he was at the house and S went for a shower. The defendant then grabbed C15 by the arm and led him to his bedroom. A massage table and sex swing hanging from the ceiling were in the bedroom. C15 yelled at the defendant to leave him alone and the defendant covered C15’s mouth with his hand. The defendant put duct tape over C15’s mouth and strapped him into the sex swing so that C15 was lying on his back in the swing with his legs in the air. The defendant pulled C15’s pants down, took out a dildo, applied lubricant to C15’s anus, and inserted the dildo into C15’s anus. The defendant next inserted his penis into C15’s anus, at the same time masturbating C15. Eventually, the defendant ejaculated onto C15’s stomach and C15 also ejaculated. The defendant used a cloth to clean C15 and released him from the swing. The defendant told C15 not to tell anyone or he would harm C15 or his family. C15 ran out of the house and did not return. Later, C7 told C15 the defendant said he’d sexually assaulted C15 and C7 said he too had been sexually assaulted by the defendant.

C16 (count 33)

34. [34]
    C16 was born on 5/10/1997; he is now aged 22 years. C16 took part in recorded interviews with police on 16 & 17/8/2014, and provided statements to police dated 7/1/2015 and 13/4/2016. C16 was friends with S and met the defendant at their house in July 2014. The defendant showed C16 his bedroom where he had a swing hanging from the ceiling. The defendant tried to persuade C16 to sit in the swing but he declined. Later, C16 was washing his hands in the bathroom and the defendant tried to undo his jeans and rubbed his penis on the outside of his pants. C16 kept telling the defendant to stop but he persisted. When C16 was sitting on the lounge, and when C16 was in the hallway, the defendant tried to rub C16’s penis area. C16 continually told the defendant to leave him alone but the defendant kept trying to touch him. Eventually C16 left the house with S. C16 did not tell anyone what happened. C16 said C14 told him in August 2013 that he was raped by the defendant.

C17 (counts 34, 35, 36, 37 & 40)

35. [35]
    C17 was born on 24/1/1996; he is now aged 24 years. C17 took part in recorded interview with police on 16/8/2014, and provided statements to police dated 16/8/2014 and 9/11/2017. C17 was friends with S and met the defendant on 15 August 2014 when he stayed over at their house. C17 went to the house on 15/8/2014 with two friends named C18 and C19. His friend C19 left and did not stay the night.

36. [36]
    At about 10.00pm the defendant told C17 it was time for a massage. S and C18 were then in the lounge room. The defendant took C17 to his bedroom, put his hand down C17’s pants, and was playing with his penis. The defendant then put C17 on the bed and removed all of C17’s clothes. The defendant began sucking C17’s penis and then put C17’s legs into a hammock type device which was hanging from the ceiling. C17 was then lying on his back on the bed with his legs in the air. The defendant then inserted his penis into C17’s anus and continued thrusting until he ejaculated inside C17’s anus. The defendant then masturbated C17. C17 told the defendant to stop, said he was not gay, and tried to push the defendant away but was unable to. Later, C17 told S what happened. C17 slept the night in S’ bed and the defendant told him he could sleep in the defendant’s bed if he wished.

37. [37]
    At about 8.30am, C17 woke to the defendant again having anal sex with him in S’ bed. S was then in the lounge room. C17 told the defendant he was not gay, tried to push the defendant away, and tried calling out to S but the defendant continued until he ejaculated inside C17’s anus. The defendant told C17 that if he returned to the house he would rape him again. C17 left and complained to police. C17 told C18 and C19 what happened.

C18 (counts 38 & 39)

38. [38]
    C18 was born on 2/4/1998; he is now aged 22 years. C18 took part in recorded interviews with police on 16/8/2014, and provided statements to police dated 19/1/2015 and 14/8/2016. C18 was friends with S and stayed at his house on the night of 15 August 2014. C18 went to S’ place earlier in the day and during the afternoon he slept in S’ room. He was woken by the defendant who asked him to go to the defendant’s bedroom. The defendant had C18 lie on the bed and the defendant then removed C18’s clothes and lay on top of him and was touching his penis. The defendant tried to kiss C18 but he turned away. Eventually the defendant commenced sucking C18’s penis and then masturbated C18 until C18 ejaculated. C18 left and had a shower. During these events C18 was telling the defendant to stop, and said he was not gay, but the defendant continued. 

39. [39]
    C18 slept the night in S’ bed and the next morning he was awoken when the defendant came into the room naked, pulled the sheets down, and asked if he wanted to engage in further sexual activity. C18 told the defendant he was not gay and told him to leave. Eventually C18 was dropped at the train station by the defendant. 

C19

40. [40]
    C19 was born on 8/9/1988; he is now aged 31 years. C19 took part in recorded interviews with police on 16, 17/8/2014, and provided statements to police dated 16/8/2014 and 3/2/2016. Although the defendant was charged with offences alleged to be committed upon C19, those charges were dismissed by the Magistrate. The prosecution have not indicted the defendant in respect of C19’s allegations.

41. [41]
    C19 was friendly with C17 and through him met S. Both C19 and C17 were homeless and C19 rang S to ask if they could stay at his house. S said his father agreed they could do so. Both C19 and C17 then went to the defendant’s house and met the defendant. C19 left and stayed elsewhere and when he returned on 16 August 2014 the defendant was the only one home. The defendant hugged him. The defendant then showed him around the house and C19 followed to the defendant’s bedroom. There, the defendant asked about his life and why he was homeless and showed C19 the massage table in the bedroom. The defendant told C19 to undress, to keep his boxer shorts on, and lay on the table for a massage. C19 was uncomfortable but did so without saying anything. The defendant then used oil and massaged C19’s back, eventually removing C19’s boxer shorts and massaging his bottom. The defendant asked C19 to turn over, C19 did so, and the massage continued. Eventually the defendant used his hands to touch C19’s penis and then began sucking his penis. C19 was scared and did not want to participate but said nothing. Eventually C19 said he needed to go to the toilet and did so. The defendant asked him if he wanted to continue but he said he was uncomfortable and the defendant said “I thought that was what you wanted”. C19 showered while the defendant washed his back with a cloth. C19 then dressed and eventually left the house and complained to his carer and police. C19 denied witnessing C14 being raped by the defendant on the couch.

S

42. [42]
    S was born on 25/1/1995; he is now aged 25 years. S provided statements to police dated 21/8/2014 and 12/4/2016. S is the son of the defendant and lived with him at their house at Riverview for a number of years. S says as at 2014, his father had been in a relationship with his boyfriend for about 4 years. S says on 15 August 2014, C19 and C17 came over to his house, that C17 stayed that night, but C19 left and was to return the next day. S says on 15/8/2014 the defendant told him to stay out of his bedroom because he was going to give C17 a massage. S saw C17 go into the defendant’s bedroom and when he came out he told S “Your dad was sexually abusing me”. The next day S said he went out and received a call from C19, also complaining his father had sexually abused him.

43. [43]
    S says other friends have also complained to him about his father sexually abusing them. S recalled an occasion C16 was at his house and the defendant asked S to do some chores, leaving C16 in the house. Afterwards, his father gave him $20 and they left. At some later time C16 complained the defendant had sexually abused him. C1 told S the defendant had raped him in the back of the ute when he was 16 and they were riding bikes in the bush at Riverview. C5 also complained to S the defendant “tried to touch him”. C8 complained to S after visiting his house that his father tried to get him into bed and touched him. C12 told S “I sucked your dad’s dick for tobacco”. C9 told S the defendant “tried to get into my pants”. Although he did not complain, S also saw C7 go into his father’s room and come out with tobacco a number of times. S heard C2 warn C16 about the defendant saying “Watch out for his dad he will try to crack onto you.” C13 told S the defendant had tried to put him in the sex swing, had tried touching him, and was staring at him in the shower. S denied seeing the defendant touch C13’s penis when sitting on the couch. S denied he had witnessed the defendant raping C14 on the couch, but said C14 told him his father had touched him.

44. [44]
    S says he saw photographs depicting his father having sex with his boyfriend and others on his father’s computer. S also loaned a phone from his father’s boyfriend which had a photograph of a male aged 15 or 16 with his shirt off and flexing his muscles, and saw the same photograph on the computer.

Submissions

Applicant

45. [45]
    The applicant contends that the evidence of individual complainants is not cross-admissible in proof of the charges relating to all other complainants, and therefore, not all charges are properly joined in the indictment. The applicant submits however, that because some of the evidence of separate complainants is cross-admissible, some charges are properly joinable and those counts can be tried together.

46. [46]
    In initial written submissions (Ex 1) and on the hearing, the applicant identified four groups of charges that could be joined and tried together, leaving three complainants whose allegations should be tried on their own. At the hearing, the applicant sought further opportunity to identify the triable issue in respect of each complainant; i.e. whether specific allegations are disputed and/or whether the question of consent is raised. By further written submissions (Ex 5), and in light of the issues so identified, the applicant now contends a further three complainants’ allegations should be tried separately. The applicant identifies four groups of charges (A, B, C & D) which it is submitted are properly jointly triable, the evidence within each group being cross-admissible in proof of the other allegations. The applicant submits the allegations of the remaining complainants are not cross-admissible or that joinder would create impermissible prejudice, such that each individual complainants’ allegations should be tried separately. For convenience, I have labelled the remaining groups of charges E, F, G, H, I & J as follows:

Group A: offences involving allegations of anal rape in defendant’s bedroom with use of swing

• C1 – counts 1, 2
• C17 – counts 34, 35, 36, 37, 40

Group B: offences involving allegations of the defendant performing non-consensual oral sex on complainants

• C9 – counts 14, 15, 16, 17, 20
• C12 – count 21

Group C: offences involving allegations of the defendant attempting or masturbating complainants

• C4 – counts 6, 7
• C5 – counts 8, 9, 13
• C8 – count 12
• C10 – count 18
• C16 – count 33

Group D: offences involving allegations of the defendant groping the bottom of complainants aged under 16 years

• C2 – counts 3, 4
• C11 – count 19
• C13– counts 22, 23, 24

Group E: offence involving allegation of an attempt to pull down the pants of the complainant

• C6 – count 10

Group F: offence involving allegation of showing pornography to complainant on defendant’s phone

• C7 – count 11

Group G: offences involving allegation of anal rape on couch in lounge room

• C14 – counts 25, 26, 27

Group H: offences involving allegation of rape in defendant’s bedroom with use of swing where issues are whether all of alleged acts occurred and whether the acts consensual

• C15 – counts 28, 29, 30, 31, 32

Group I: offences involving allegations of defendant performing oral sex on complainant where issue is whether the acts consensual

• C18 – counts 38, 39

Group J: offence involving allegation of attempting to masturbate complainant where issues are whether conduct occurred prior to complainant’s 16^th birthday and whether consensual

• C3 – count 5

47. [47]
    The applicant contends that the question of the cross-admissibility of the evidence of each complainant is fundamental to the question of whether the joinder is authorised by s 567(2) of the Code, and whether separate trials should be ordered pursuant to s 597A. In this context, the applicant relied upon various statements in the judgements in Pfennig v The Queen^[1] and Phillips v The Queen^[2] as demonstrating that admission of propensity evidence is exceptional and requires a high degree of probative force, given its significant prejudicial effect. The applicant highlighted the need for “specific connection with or relation to the issues for decision in the subject case”. The applicant also referred to statements in judgements of the Queensland Court of Appeal in cases where the joinder of charges in multiple complainant sexual offence cases was held to have been in error.

48. [48]
    In the present case, the applicant submitted, for the propensity evidence to be cross-admissible, it needed to show more than that the applicant had a disposition to engage in, or attempt to engage in, sexual activity with teenage boys. It was submitted it was necessary the evidence show a unity, pattern or distinctive hallmark, or significant aggregation of features when compared between complainants, or at least particular probative quality sufficient to warrant admission.

49. [49]
    The applicant submitted the present charges are not all a “series of offences of the same or similar character” as required by s 567(2). However, the applicant concedes the specific offences in each of the identified groups can be said to form such a series. For the counts in group A, it is submitted the allegations of anal sex, with use of a degree of physical violence and the sex swing in the defendant’s bedroom, provides sufficient similarity to justify the joinder of those counts. At the same time, the applicant submits, the evidence of the other groups of offences is not rationally probative of the charges in group A. By way of example, it is submitted the evidence of the group D offences, involving allegations of groping the bottom of boys under 16 years, does not logically establish the defendant engaged in non-consensual anal penetration of older males using violence. The applicant submits similar reasoning applies to whether the group A offences can logically prove the offences in any of the other groups. The applicant submits in this context the differences in age of the respective complainant’s is also material.

50. [50]
    The applicant contends the evidence of the other groups of offences are similarly not cross-admissible. The applicant submits this is so since the allegations are materially different as between the different groups, including as to the complainant’s ages, resulting in there being insufficient rational connection between the groups as might justify joinder. The applicant submits at best the evidence shows a general disposition of the applicant to engage in sexual activity with teenage males. The applicant submits that cross-admission would result in the impermissible use of the evidence by reason of this general disposition. The applicant contends the risk of impermissible use is overwhelming and cannot be cured by direction.

51. [51]
    The applicant submits it is the different nature of the allegations within each of the separate identified groups that results in the conclusion that no underlying pattern, system or hallmark is demonstrated, such as would show the necessary connection or nexus. The applicant submits that outside of the groups identified, the evidence is not cross-admissible and joinder beyond those groups is not authorised.

52. [52]
    In addition, the applicant contends that a single trial of all counts is impractical. The applicant submits that any direction to the jury upon the use that may be made of the evidence at a single trial, including guarding against misuse, is apt to be confusing and unwieldy, such that a jury would be unable to follow and apply it. The applicant submits that separate trials of the distinct groups of offences as identified should be ordered.

53. [53]
    In further written submissions, the applicant identified the issues at trial will be as follows:

• for complainant C1 whether the alleged acts occurred before the complainant’s 16^th birthday and whether they were consensual;
• for complainant C3 whether the alleged acts occurred before the complainant’s 16^th birthday and whether they were consensual;
• for complainant C17, whether all of the alleged acts occurred and whether they were consensual;
• for complainant C18, whether the alleged acts were consensual;
• for all other complainants whether the alleged acts occurred.

54. [54]
    The applicant submits identification of these issues results in some charges being required to be tried separately from groups of similar alleged offences. The applicant submits that although count 5 (C3), is a similar allegation to those in group C (attempts at or masturbating the penis of boys), count 5 should be tried separately from those counts. It is submitted this is because the issue at trial regarding count 5 is entirely different from the other charges in group C; the group C allegations are all denied by the applicant, whereas for count 5, the timing of the event and whether it was consensual are in issue. The applicant submits acceptance that group C allegations are true can have no bearing upon when the act for count 5 took place, or whether C3 consented to it. It is submitted that since the happening of the count 5 act is not disputed, the evidence of the group C allegations has no specific connection to an issue on the trial of that count and thus no probative value. It is submitted therefore the evidence of the group C counts is not admissible in proof of count 5. Conversely, it is submitted, the count 5 allegation is not logically probative of the group C counts since there is dispute whether that conduct occurred when C3 was under 16 years, and whether it was consensual. It is submitted if the jury accepted the count 5 conduct was consensual, and/or occurred after C3 had turned 16, it could have no relevance as to whether the group C allegations are true. In addition, it is submitted, any directions designed to explain or limit the potential use of the evidence of count 5 as regards the group C offences, will be confusing and likely productive of impermissible propensity reasoning. The applicant contends count 5 should be tried separately, the evidence of count 5 is not admissible in proof of any other count, and the evidence of other counts is not admissible in proof of count 5.

55. [55]
    Similarly, the applicant submits counts 38 and 39 (C18), although factually similar to group B offences (defendant performing oral sex upon boys), should be tried separately from the group B offences. This is because the issue on the trial of counts 38 and 39 (charges of sexual assault) will be whether the activity alleged was without the consent of C18. It is submitted the evidence of the group B offences cannot logically be probative of whether the acts the basis of counts 38 and 39 were without consent. Conversely, it is submitted, it is not rationally open to use the evidence of counts 38 and 39 to determine whether the group B allegations are true, if that conduct was consensual. The applicant submits counts 38 and 39 should be tried separately from all other counts, the evidence of counts 38 and 39 is not admissible in proof of any other counts, and vice versa.

56. [56]
    The applicant also contends evidence of counts 28, 29, 30, 31 and 32 (C15), although including a similar allegation, is not admissible in proof of group A offences (anal rape with swing in defendant’s room) and vice versa. The applicant denies C15’s allegations occurred at all, whereas for Group A offences, the issues will be whether the conduct was consensual (C1 and C17), whether the conduct occurred when the complainant was over 16 years (C1), and whether all of the alleged acts occurred (C17). It is submitted it is not rationally open to use the evidence of group A offences to conclude the C15 allegations are more likely true because the jury will be required to also determine whether the group A conduct was consensual. Likewise, it is submitted accepting the allegations of C15 cannot logically be probative of whether the group A conduct occurred without consent. The applicant submits counts 28, 29, 30, 31 and 32 should be tried separately.

57. [57]
    The applicant submits the remaining allegations should also be tried separately. For counts 25, 26 and 27 (C14), the applicant contends the evidence is not cross-admissible with other counts (specifically group A), principally due to the difference in the nature of the allegations. The applicant contends the allegations are so factually distinct from other allegations such that no underlying unity, pattern or tendency is discernible that would logically assist in proof of other allegations, or render the other allegations relevant to proof of C14’s allegations. Similarly, the applicant submits count 10 (C6) and count 11 (C7) share no sufficient factual similarity to satisfy the test for admissibility or cross-admissibility and should be tried separately.

Respondent

58. [58]
    The respondent submits that all counts on the indictment are properly joined, the evidence of all complainants is cross-admissible, and all counts should be determined at a single trial.

59. [59]
    The respondent submits the evidence of all eighteen complainants shows a modus operandi or pattern of behaviour by the applicant of engaging in sexual conduct towards young males. The respondent contends it is significant that all complainants became known to the applicant through association with the applicant’s son and that the conduct was brazen with a high risk of discovery. The respondent contends the evidence of each complainant demonstrates “a tendency of the applicant to have a sexual interest in juvenile males; to use the friendship, acquaintances and/or associations of his son to obtain access to juvenile males; and to engage in sexual activities with them”. In oral submissions the respondent amended this to refer to teenaged or juvenile males.

60. [60]
    The respondent submits that in issue in respect of each count is whether the conduct alleged actually occurred. The respondent submits that when considering the individual counts, the evidence of each uncharged allegation, if accepted, increases the likelihood the charged allegations are true. In that way, the respondent submits, it can be said there is no rational view of the uncharged allegations other than as demonstrating guilt of the charged conduct. The respondent submits therefore, the probative value of the evidence outweighs its prejudicial effect and the evidence of the uncharged allegations is admissible in proof of the charged allegations.

61. [61]
    The respondent highlights that it is not necessary that the uncharged allegations standing alone demonstrate guilt of the charged allegations. The respondent, relying upon statements in the majority judgement in Hughes v The Queen,^[3] also submits that the differences in the specific allegations of the various complainants are not of significance.

62. [62]
    Although acknowledging the potential prejudice for the applicant if the evidence is admitted, the respondent submits impermissible propensity reasoning can be eliminated by appropriate direction which is capable of being understood and applied by the jury. The respondent submits the directions to the jury should identify the relevance of the propensity evidence and its potential use when considering evidence of individual complainants. The respondent submits the directions should also include reinforcement that particular charges can only be found proved if the jury regards the relevant complainant as credible and reliable. The respondent also submits the directions will need to warn the jury concerning possible concoction or collusion, if that is an issue raised in the evidence at trial. The respondent also submits the directions should include specific warning against simple propensity reasoning.

63. [63]
    The respondent submits the jury directions consistent with the model directions in the Benchbook concerning similar fact evidence, and Longman and Robinson directions, will serve these purposes.

64. [64]
    In further written submissions (Ex 4), the respondent submitted the directions to the jury should also include “that the jury must find the facts proved with respect to each complainant be so similar to the facts proved for the other complainants that there is no reasonable view of the evidence of those other complainants other than that the defendant committed the alleged acts (where that is the basis for admissibility)”. The respondent relied upon passages in the joint judgement of Mason CJ, Wilson and Gaudron JJ, in Hoch v The Queen,^[4] in support of the submission that the “probative force of the evidence lies in the very reason for its tender; the objective improbability that a complainant has lied about offending that has occurred in similar circumstance to another complainant and making it more likely that what each complainant said is true.”

65. [65]
    The respondent submits the evidence is cross-admissible, the counts are properly joined, and no order for separate trials should be made.

Relevant provisions and principles

Joinder

66. [66]
    Relevantly, the Criminal Code provides:

567 Joinder of charges

1. (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.

70. [70]
    In R v Cranston,^[5] the Court of Criminal Appeal concluded that for offences to be joined as a series within the terms of s 567(2), it was necessary to show some connection or nexus between them. In that case, Macrossan J (McPherson and de Jersey JJ agreeing), said:

It seems that the requirement that nexus should exist is an additional requirement upon the requirement of “similar character” and, however imprecise they may be, these words call for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present.^[6]

This statement of the test has subsequently been approved.^[7] 

71. [71]
    In this context, Keane JA said in the case of R v MAP^[8]:

I turn to consider the first of the grounds of appeal summarised at the outset. In this regard, s 567 of the Criminal Code (Qld) contemplates that charges for one or more indictable offences may be joined in the one indictment against the same person only 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”.

Under s 597A(1) of the Criminal Code, the court may order a separate trial of any count or counts in the indictment where, before or during a trial, the court is of the opinion that the accused person may be prejudiced in the person's defence by reason of the person's being charged with more than one offence in the same indictment. …

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.^[9]

Admissibility of propensity evidence

72. [72]
    Section 132A of the Evidence Act 1977, provides as follows:

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.

73. [73]
    The admissibility of evidence of uncharged offending in proof of charged offending, here depends upon the evidence of uncharged offending showing a particular tendency or propensity such as would satisfy the test identified in Pfennig v The Queen,^[10] and as explained in subsequent judgements of the High Court.^[11] The relevant principles are as follows.

74. [74]
    To be admissible, the evidence must have a strong degree of probative force; a really material bearing on the issues to be decided; its probative force must clearly transcend its prejudicial effect of mere criminal propensity.^[12] The basis of admissibility is that the evidence possesses particular probative value such that it bears no reasonable explanation other than as supporting an inference that the defendant is guilty of the offence charged.^[13] 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;^[14] or in showing a particular distinctive propensity.^[15] In multiple complainant sexual offence cases the evidence may demonstrate a tendency to act in a particular way which increases the likelihood the charged offence occurred.^[16]

75. [75]
    The prejudicial effect the law is concerned to guard against is the possibility of the jury regarding the evidence as establishing an inference of guilt where neither logic nor experience would necessitate that conclusion.^[17] Because propensity evidence has high potential prejudice, the evidence should only be admitted where, viewed as a circumstantial part of the prosecution case, there is no reasonable view of it other than as showing the defendant is guilty of the offence charged; or where there is no reasonable view of it consistent with innocence.^[18]

76. [76]
    Striking similarity, underlying unity, or other like descriptions are not essential in order for the propensity evidence to be admissible.^[19] However, usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.^[20] To be admissible, the evidence must have some specific connection with or relation to the issues to be decided; a sufficient nexus to the charged offence; or a link or common feature sufficient to demonstrate a tendency to act in a particular way.^[21] In comparing the probative value of the evidence against its prejudicial effect, the trial judge must assume the propensity evidence will be accepted as true and the prosecution case may be accepted by the jury. The admissibility of the propensity evidence does not depend upon it demonstrating, on its own, guilt of the charged offence.^[22]

77. [77]
    In R v McNeish,^[23] a majority of the Queensland Court of Appeal, following the decision in Hughes, held that admissibility of uncharged sexual acts in multiple complainant sexual offence cases does not depend upon similarity of the conduct alleged.

78. [78]
    In McNeish, the majority went on to explain the necessary steps in reasoning for a trial judge considering admissibility of uncharged sexual acts. Their Honours continued:

This logic is equally applicable under the common law. It requires a judge who is considering evidence of uncharged acts against multiple complainants to consider the following.

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

As Gageler J has observed, this boiled down to an assertion that Hughes had a tendency to have a sexual interest in girls under 16 years of age and to engage in sexual activities with them using his social, familial or working relationships to obtain access to them.

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

Third, it is necessary to consider whether the evidence of the uncharged acts, if accepted, contains some feature which links the doing of the uncharged acts with the charged offence by reference to a particular issue in the case, whether that is identity, the issue of the commission of the offence or some other issue. That feature may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true. That was the case in Hughes, in which proof that the accused was an adult of mature years who had a sexual interest in girls under 16 years of age and a willingness to act upon that interest by committing uncharged sexual offences against such girls opportunistically, in circumstances involving a high risk of detection, tended to make the commission of that particular offence more probable.

Fourth, and finally, it is necessary to consider whether the probative force of the evidence, upon the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect. In this context, “prejudicial effect” is constituted by the use of the evidence, by the jury, for an impermissible purpose. It would be impermissible for a jury to use evidence of uncharged acts to reason that, because the accused is a discreditable person, the accused is guilty or is deserving of conviction irrespective of guilt. It would be impermissible for a jury to reason that, because the accused is guilty of one offence then the accused must be guilty of the charged offence. Other cases will present the potential for other kinds of impermissible reasoning. In every case it is the risk of such impermissible reasoning that is the relevant “risk of prejudicial effect” that must be considered against the probative value of the evidence.^[24] (Citations removed)

Consideration

Identifying the issue

79. [79]
    It is necessary to first consider whether the evidence of the separate complainants is cross- admissible in proof of the allegations of other complainants. Resolution of this issue is relevant to whether the counts are properly joined under s 567(2), and whether an order for the separate trial of any counts should be made. In this context, it is also necessary to determine the issue at trial the evidence is relevant to proving.

80. [80]
    As can be seen, some of the charges allege indecent treatment of children, whereas others allege offences of sexual assault or rape.  The offences of sexual assault and rape all require proof, as an essential element of the charge, that the complainant did not consent to the activity alleged.

81. [81]
    The respondent contends in each case the issue is whether the charged activity actually occurred. In further written submissions, the applicant identified that the allegations are disputed, except in respect of complainants C1 and C17 (group A), C18 (group I), and C3 (group J).  In those cases the applicant identifies the issues as follows: for C1 (counts 1 & 2 - rape), and C3 (count 5 - indecent treatment of child), whether the alleged acts occurred before the complainant’s 16^th birthday and whether they were consensual; for C17 (counts 34, 35, 36, 37 & 38 - rape and sexual assault), whether all of the alleged acts occurred and whether they were consensual; for C18 (counts 38 & 39 - sexual assault), whether the alleged acts were consensual. A lack of consent is not an element of the charge relating to C3, but is for the charges relating to C1, C17 and C18.

82. [82]
    The applicant submits identification of these issues is relevant to whether evidence is cross-admissible and/or charges can be jointly tried. These submissions assert in effect, that because the happening of the acts alleged for these offences is not disputed, the evidence of other complainants is no longer relevant to a live issue; i.e. that it cannot assist in determining when an event occurred or whether it was consensual.

83. [83]
    However, identification that consent is the issue in respect of allegations does not result in the conclusion that there is no contest as to what occurred or that evidence of a particular distinctive propensity is not relevant. Each of complainants C1, C3, C17 and C18 not only positively assert they did not consent to the acts which are the basis of the charges, but also claim they actively resisted the applicant’s sexual advances. In that sense, there remains an issue as to what actually occurred and whether the description of events provided by the complainant’s should be accepted. In addition, for complainants C1 and C3, it is said there is an issue concerning whether the activity alleged occurred prior to the complainant’s sixteenth birthday. In the case of C1, he claims he was aged 16 at the time of the alleged rapes. Since age is not an element of those alleged offences, and C1 says in any event he was aged 16, this would seem to be a false issue. In the case of C3’s allegation, consent is not relevant to proof of the charge. However, if not satisfied beyond reasonable doubt of the complainant’s description of events, including as to when the relevant acts occurred, the jury will be obliged to find the applicant not guilty. Proof of age is therefore very much dependent upon acceptance of the accuracy of C3’s account.  Regarding C15, the applicant’s submissions acknowledge it remains in issue whether all of the alleged acts occurred. Further, in the cases where a lack of consent is in issue, it may also become necessary for the jury to consider whether the applicant held an honest and reasonable but mistaken belief that the individual complainant was consenting to the conduct.

84. [84]
    It follows that it remains in issue whether the conduct, as alleged, occurred for all complainants, including those in respect of whom consent is said to be in issue. In addition, the propensity evidence may be relevant to the applicant’s state of mind concerning consent, if that is raised as an issue regarding any particular allegations.

McNeish – Step 1

85. [85]
    The majority decision in McNeish contemplates, as the first step in determining the admissibility of uncharged acts against multiple complainants, identification of what it is the prosecution seek to prove. Here, that is said to be a tendency of the applicant to have a sexual interest in teenaged or juvenile males; to use the friendship, acquaintances and/or associations of his son to obtain access to teenaged or juvenile males; and to engage in sexual activities with them.

McNeish – Step 2

86. [86]
    Next, consistent with the approach described in McNeish, it is necessary to decide whether the evidence would prove that tendency. This requires consideration of the conduct described by each of the witnesses. Because the applicant submits the evidence of complainants is cross-admissible only within the groups identified above, it is convenient to examine the allegations of the complainants in those same groupings. 

Group A

87. [87]
    Group A (anal rape with use of swing), includes complainants C1 and C17.  C1 says that in 1996, when he was aged 16, the defendant twice sodomised him. The first occasion was in bushland, with C1 bent over the tail gate of the defendant’s utility, while S was riding a motorbike (count 1 rape). The second was when C1 visited the defendant’s house and S was not home. This offence occurred in the defendant’s bedroom while he was lying face up on the bed with his legs tied in the sex swing (count 2 rape). According to C1 all acts involved the use of force and without his consent.

88. [88]
    C17 says that on 15 and 16 August 2014, when he was aged 18, the defendant sexually assaulted him when he stayed at the defendant’s residence overnight. The defendant took C17 to his bedroom and played with C17’s penis (count 34 sexual assault), placed C17 on the bed, removed his clothing, performed oral sex on C17 (count 35 sexual assault with circumstance of aggravation), tied C17’s legs into a device hanging from the ceiling, inserted his penis into C17’s anus (count 36 rape), and masturbated C17 (count 37 sexual assault). The next morning, C17 awoke in S’ room to the defendant penetrating his anus with the defendant’s penis (count 40 rape). C17 describes that he did not consent to these acts and the defendant ignored his protests and attempts to push the defendant away.

Group B

89. [89]
    Group B (oral sex upon victims), includes complainants C9 and C12. C9 says in 2013 when he was aged 14 or 15, the defendant twice sexually assaulted him. On the first occasion the defendant took him to bushland at Mount Coot-Tha, pulled his pants down and touched his penis (count 14 sexual assault), pinned him on the ground and performed oral sex on him (count 15 sexual assault), rubbed the defendant’s penis against C9’s bottom (count 16 sexual assault), and when C9 was on his knees inserted his penis into C9’s mouth (count 17 rape). C9 says on a later occasion, when the defendant and C9 were alone in the shed, the defendant rubbed C9’s penis outside his clothing (count 20 sexual assault). On other occasions the defendant tried to grab his bottom or penis. C9 says he did not consent to any of these acts and at Mount Coot-Tha, the defendant used force to overcome his resistance and protests.

90. [90]
    C12 says in 2014 when he was aged 13, he went to the defendant’s residence and asked the defendant for a cigarette. The defendant took him to the bedroom, pushed C12 onto his knees and inserted his penis into C12’s mouth (count 21 rape). C12 says this was without his consent and the defendant used a degree of force.

Group C

91. [91]
    Group C (attempts to masturbate victims), includes complainants C4, C5, C8, C10 and C16. C4 says that when he was aged 12 in 2011, the defendant without warning gave him $20 to touch him, then put his hand up C4’s shorts and touched his penis (count 6 indecent treatment of a child under 16). This happened in a vehicle when others got out to go to the toilet. On another occasion the defendant gave C4 $20 to suck his penis, led C4 to the shed and pulled his pants down, then performed oral sex on C4 (count 7 indecent treatment of child under 16). This incident occurred when others were in the house and C4 describes the defendant put a hand over his mouth to stop him calling out. On another occasion the defendant woke C4 and asked C4 to sleep in his bedroom. C4 says he actively resisted on each occasion.

92. [92]
    C5 says in 2012, when he was 14, the defendant made numerous sexual advances towards him. Once the defendant sat next to him on the couch and began touching his penis (count 8 indecent treatment of a child under 16) and the defendant asked C5 if he wanted to suck the defendant’s penis. On another occasion the defendant asked if C5 wanted a massage, put his arm around C5 and a hand on his leg, and tried to kiss him (count 9 indecent treatment of a child under 16). The defendant at other times touched C5 on the bottom, winked at him, told C5 he liked boys, and asked C5 if he wanted to suck the defendant’s penis. When C5 was 15, the defendant grabbed C5 on the penis from behind whilst he was standing in the kitchen (count 13 indecent treatment of a child under 16). C5 did not consent to any of these acts.

93. [93]
    C8 says in September 2016, when he was 16, he visited the defendant’s house. He says when he was standing at the front door of the house smoking, the defendant put out his hand as if to shake hands, but instead grabbed his penis and started rubbing it (count 12 sexual assault). C8 jumped back and then left.

94. [94]
    C10 says when he was aged 15 (in 2013), he met the defendant while riding his bike in bushland at Riverview. About a week later, he again saw the defendant, this time as he was running home and the defendant was riding his push bike. The defendant followed and spoke to him but eventually pointed to something in the bushes. When C10 looked to see what was there, the defendant put his hand in C10’s pocket and touched his penis (count 18 indecent treatment of a child under 16).

95. [95]
    C16 says in 2014, when he was 16, he visited the defendant’s house. He says when he was in the bathroom, the defendant tried to undo his jeans and rubbed his penis on the outside of his pants (count 33 sexual assault). The defendant also tried to rub C16’s penis area when C16 was in the hallway and lounge room. C16 at all times told the defendant to stop.

Group D

96. [96]
    Group D (grabbing bottom of victims), includes complainants C2, C11 and C13. C2 says in 2008, when he was 9, he met the defendant at his house. He says the defendant closed the doors, then touched his bottom and tried to kiss him on the lips (count 3 indecent treatment of child under 12). C2 managed to escape through another exit. A few weeks later, C2 was again at the defendant’s residence and the defendant grabbed him around the waist, tried to pull his pants down, and was motioning as if to suck C2’s penis (count 4 indecent treatment of child under 12). C2 resisted and got away, and as he left the house, the defendant threatened to further sexually assault him.

97. [97]
    C11 says when he was 15 (in 2013 or 2014), he visited the defendant’s residence a number of times. On one occasion, when the defendant answered the door he grabbed C11 on the bottom without warning (count 19 indecent treatment of child under 16).

98. [98]
    C13 says in 2014, when he was aged 12, the defendant touched him a number of times. On an occasion when he was visiting the defendant’s house the defendant grabbed C13 on the bottom from behind (count 22 indecent treatment of child under 16). On another occasion when C13 and other boys were pushing a quad bike, the defendant grabbed C13’s bottom (count 23 indecent treatment of child under 16). On another occasion when C13 was sitting between the defendant and S on the couch, the defendant put his hand on C13’s thigh and moved it closer to C13’s penis (count 24 indecent treatment of child under 16). C13 also described the defendant slapping his bottom when riding a bike, other instances of the defendant touching his bottom, and the defendant coming into the bathroom when he was showering. All of the touching occurred without warning.

Group E

99. [99]
    Group E (attempt to pull pants down), consists only of complainant C6. C6 says that in 2013, when he was 14 or 15, he visited the defendant’s house. He says the defendant invited him in and took him to the defendant’s bedroom. There, the defendant massaged C6’s waist, asked if he’d ever had a “blow job”, and tried to pull his pants down (count 10 indecent treatment of child under 16). C6 managed to push the defendant away and ran out.

Group F

100. [100]
     Group F (showing victim pornography), consists only of complainant C7. C7 says in 2012 or 2013, when he was 14 or 15, he often stayed overnight at the defendant’s house. On the last occasion he visited, the defendant showed him photographs on his phone of naked males with erect penises (count 11 indecent treatment of child under 16). This occurred without any warning. On other visits, the defendant said or did sexually suggestive things directed at C7.

Group G

101. [101]
     Group G (anal rape on couch), consists only of complainant C14. C14 says in 2014, when he was aged 18, he was at the defendant’s residence with a group of others. C14 says he saw the defendant take each of the others individually into his bedroom, and all subsequently emerged in tears. C14 says the defendant then grabbed his arm and tried to drag him into the bedroom, and C14 resisted. During this, the defendant put his hand down C14’s pants and grabbed C14’s penis (count 25 sexual assault). Later, when C14 was lying on the couch, the defendant pulled C14’s pants down, held his arms, lay on top of him, and inserted his penis into C14’s anus (count 26 rape). This only ended when others pulled the defendant off C14. Later still, the defendant put his hand inside C14’s pants and tried to touch his penis (count 27 sexual assault). C14 says he did not consent to these events.

Group H

102. [102]
     Group H (anal rape with use of swing where issues are whether all acts occurred and whether consensual), consists only of complainant C15. C15 says that in 2014, after he’d turned 15, the defendant sexually assaulted him in his bedroom. This occurred on an occasion he was visiting the defendant’s house and S went to the shower. C15 says the defendant took him into his room, covered his mouth with duct tape, strapped him into the sex swing, and removed his clothes. The defendant then inserted a dildo into C15’s anus (count 28 rape), inserted his penis into C15’s anus (count 29 rape), masturbated himself to ejaculation (count 30 indecent treatment of a child under 16), performed oral sex on C15 (count 31 indecent treatment of a child under 16), and masturbated C15 to ejaculation (count 32 indecent treatment of a child under 16). C15 describes this conduct was without his consent and accomplished by use of force.

Group I

103. [103]
     Group I (oral sex on complainant where issue is whether consensual) consists only of complainant C18. C18 says on 15/8/2014 when he was aged 16, the defendant sexually assaulted him when he stayed over at the defendant’s house. C18 says he was awoken by the defendant who then took him to the defendant’s bedroom. There the defendant pushed C18 onto the bed, removed his clothes, lay on top of him, and performed oral sex upon him (count 38 sexual assault). The defendant next masturbated C18 to ejaculation (count 39 sexual assault). C18 says he did not consent to this conduct and protested asking the defendant to stop. The next morning the defendant woke C18 by entering his bedroom naked and asking if he wanted to engage in further sexual activity.

Group J

104. [104]
     Group J (attempt to masturbate complainant where issue whether consensual) consists only of complainant C3. C3 says when he was aged 13 or 14 (in 2010 or 2011), he stayed one night at the defendant’s house and slept in the spare room. He was awoken the next morning by the defendant pulling the draw string on his pants. The defendant placed his hand on the area of C3’s penis outside his clothing (count 5 indecent treatment of child under 16) and held a hand over C3’s mouth to stop him from calling out. C3 says he did not consent to this conduct and actively resisted.

105. [105]
     In addition to the allegations which are the basis of the specific counts, several of the complainants also describe other sexual conduct by the applicant which is not charged. The uncharged allegations include:

• C4 – the applicant asked him to sleep in the applicant’s bedroom;

• C5 – the applicant asked him to sleep in the applicant’s bedroom, asked if he wanted to suck the applicant’s penis, touched hiss bottom, told C5 he was gay and liked boys;
• C9 – the applicant tried to grab his penis and bottom;
• C13 – the applicant watched him in the shower and touched his bottom several times;
• C16 – the applicant tried to touch his penis;
• C18 – the applicant, when naked, woke him and asked if he wanted to engage in sexual activity.

This conduct, assuming it is accepted by the jury, might show the applicant had a sexual interest in the individual concerned, and for that reason is admissible in proof of the charges relating to that individual. No argument to the contrary was advanced. However, the cross-admissibility of this evidence in proof of allegations of other complainants should be considered in the same way as for the evidence of specific charges.

106. [106]
     The evidence of the complainants shows the applicant to have engaged in overt sexual conduct, including contact offences, towards seventeen different young males. The remaining victim was not subject to any physical contact but was shown pornographic images. None of the victims consented to the acts described. All bar three of the targets of the applicant’s conduct were then teenagers; the others were aged 12 and 9. Only two of the victims were adults, both aged 18. The defendant was a mature age man living in a house with his son who was of similar age to the victims. The offences predominantly occurred at the applicant’s residence; however, some occurred in nearby bushland, in bush at Mount Coot-Tha, in the applicant’s car, and in a nearby street. On all occasions of offending, with one exception, the victims came into contact with the applicant because they were visiting or seeking to visit the applicant’s son. The exception (count 18), occurred when the applicant came upon the victim by chance. The total time period over which the offending occurred was about 8 years, i.e. between and 2006 and 2014; however, the bulk of offences occurred from the end of 2011. The conduct the applicant engaged in ranged in seriousness from showing pornography, to touching or grabbing boys on the bottom or penis, performing or attempting oral sex upon boys, having boys perform oral sex upon the applicant, anal penetration with an object, and anal penetration with the applicant’s penis.

107. [107]
     All of the victims were much younger than the applicant, his relationship to each being as a parent of their similar aged friend. In that sense, the applicant enjoyed a degree of authority over each complainant. The applicant used the opportunity presented by his contact with each, to prey upon them sexually. None of the victims consented to what occurred. It can be concluded the applicant engaged in predatory sexual exploitation of the young males he came into contact with, regardless of their consent. The exception to this is count 11, showing pornography to C7.

108. [108]
     It is the principal contention of the applicant that the difference in the nature of the allegations of the complainants, outside of the identified groups, deprives the evidence of the necessary probative value; that it is merely evidence of a disposition to commit sexual offences rather than demonstrating a particular distinctive propensity. In effect, the applicant submits, that while sufficient similarity of alleged conduct exists within the identified groups, no pattern, system or hallmark is demonstrated as being common across all of the groups. In demonstration of this, the applicant contrasts forcible anal rape using the sex swing (group A), with allegations of being groped on the bottom (group D), and attempting to or actually masturbating boys (group C). The applicant submitted that to be admissible, the evidence needed to show more than a tendency to engage in, or attempt to engage in, sexual activity with teenage boys. Contrasting conduct is also obvious as between each of the other groups; group B offences purport to include instances of the applicant performing oral sex on boys; group E an attempt to pull a boys pants down; group F showing a boy male pornography; and group G forced anal sex in the lounge room. The applicant then distinguishes the conduct in the remaining groups largely due to consent being an issue; group H anal rape where consent is in issue; group I oral sex on complainant where consent is in issue; group J groping penis of complainant where consent is in issue.

109. [109]
     The applicant’s suggested method of separation of the charges is largely based upon the different types of sexual behaviour. From this standpoint, it is argued that because the behaviour identified in one group is markedly different to that identified in others, evidence of the first behaviour does not have substantial probative value in assessing whether the applicant engaged in other behaviours.

110. [110]
     However, this approach produces obvious anomalies. For example, group A includes complainant C1 because of his allegation of forced anal sex in the sex swing (count 2). Yet C1 also complains of forced anal sex over the tailgate of a vehicle in bushland (count 1). Should this allegation then be admissible in respect of group G offences (anal rape in the lounge room)? Group H includes the allegation of C15 that he was anally raped while tied to the sex swing (count 29), but he also complains the applicant performed oral sex upon him (count 31), and masturbated him (count 32). Should these allegations be admissible in respect of groups B and C? The other complainant in group A, C17, apart from forced anal sex in the sex swing (count 36), likewise complains the applicant performed oral sex upon him (count 35), and masturbated him (count 37). Of the group B complainants, C9 describes that in addition to performing oral sex upon him (count 15), the applicant touched his penis (count 14) and forced his penis into C9’s mouth (count 17); and C12 complains only of being forced to perform oral sex on the applicant (count 21). In group I, C18 describes the applicant performed oral sex upon him (count 38), but also masturbated him (count 39). Of the group C complainants, C4 describes in addition to rubbing his penis (count 6), the applicant performed oral sex upon him (count 7). The complaints of C2 (group D) and C6 (group E), might be thought to show an attempt by the applicant to perform oral sex upon them (C2 count 4, C6 count 10). C14 (group G) alleges anal sex in the lounge room (count 26), but also the applicant touching or attempting to touch his penis (counts 25 & 27). C7 (group F count 11), is the only complainant that does not allege actual touching of him by the applicant.

111. [111]
     The applicant also relies upon age differences of complainants, as between the various groups, as supporting this basis of separation of counts. The ages of the complainants in the respective groups are:

• group A: 16, 18;
• group B: 14 or 15, 13;

• group C: 12, 14, 16, 15, 16;
• group D: 9 or 10, 15, 12;
• group E: 14 or 15;
• group F: 14 or 15;
• group G: 18;
• group H: 15;
• group I:  16;
• group J: 13 or 14.

No real disparity of age compared to grouping, or type of conduct, is obvious.

112. [112]
     As is plain from the decisions in McNeish and Hughes, it is not necessary there be a degree of similarity of “operative features” in order to demonstrate a relevant tendency. In Hughes the majority observed:

The Velkoski analysis proceeds upon the assumption that, regardless of the fact in issue, the probative value of tendency evidence lies in the degree of similarity of “operative features” of the acts that prove the tendency. It is an analysis that treats tendency evidence as if it were confined to a tendency to perform a particular act. Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. Velkoski is illustrative.^[25] (Citation removed)

113. [113]
     Later, the majority concluded:

An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a “pattern of conduct” or

a “modus operandi” which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.^[26]

114. [114]
     In Pfennig, the majority said:

There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case.^[27]

115. [115]
     In Pfennig, the propensity evidence held to be properly admissible demonstrated the appellant as a person with a disposition to abduction for sexual purposes. As demonstrated in the above passages from Hughes, proof of the appellant’s tendency to engage in opportunistic sexual conduct with underage girls in circumstances where a high risk of detection existed, was regarded as having significant probative value. In Bauer, the Court recognised that when considering cross-admissibility in multiple complainant sexual offence cases, evidence “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”.^[28]

116. [116]
     By contrast, in Phillips, the conduct of a teenaged male seeking sexual interaction with females of similar age with whom he was acquainted, was considered “entirely unremarkable”.^[29] In Phillips, the court remarked:

… As explained in Pfennig v The Queen:

“[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”

In this case none of these criteria are met – either on the issue of whether in relation to any particular charge the appellant committed the acts of assault or intercourse alleged, or on the issue of whether he did so being honestly and reasonably mistaken about consent. … (Citation removed)

…

There was no dispute about the absence of striking similarity, unusual features, underlying unity, system, pattern or signature. Although none of these features is necessary for admissibility, the high probative value required in order to overcome the prejudicial effect of the evidence was not shown to exist for any other reason.^[30]

117. [117]
     Here, although some victims describe more than one occasion they were sexually abused, none describe a lengthy period over which that occurred. Instead, the evidence discloses episodic and isolated offending against individuals, as opportunity arose. Considerable differences exist in the range of acts that individuals were subjected to. The prosecution assert that the brazenness of the conduct with a high risk of discovery is a common unusual feature. However, that feature is not present in all of the allegations; some of the offending occurred with a relatively low risk of immediate discovery. No striking similarity, pattern of conduct, grooming, or peculiar modus operandi is shown to have been utilised against every victim, but that is because the conduct was entirely opportunistic. The differences in the “operative features” each was subjected to, therefore does not mean the evidence is not capable of demonstrating a tendency to act in a particular way. That two of the victims were aged 18, compared to all others being children, also does not distinguish that offending since they too were subjected to opportunistic and predatory sexual behaviour without their consent, after coming into contact with the applicant through their association with his son.

118. [118]
     The offence against C10 (count 18), is the only count charged where the victim did not meet with the applicant because of the victim’s contact with, or seeking contact with, the applicant’s son. On this occasion the applicant came upon the victim by chance, then accompanied the victim for a distance, before manufacturing an opportunity to touch the victim’s penis without warning. Although the complainant says he knew the applicant’s son, that association was not connected with the complainant meeting the applicant or the occasion of the offending. The respondent contends the relevant tendency, increasing the likelihood that charged offences occurred, includes the use of the friendship, acquaintances and/or associations of the applicant’s son to obtain access to teenaged or juvenile males. To so confine the tendency would exclude this incident altogether. Yet this episode demonstrates the highly opportunistic nature of the non-consensual sexual exploitation of young males the applicant engaged in. The applicant’s conduct was not restricted to attacks upon boys who were visiting his son, although that was the usual means by which the applicant was presented with such an opportunity. I would not exclude this episode from also indicating a relevant tendency on the part of the applicant.

119. [119]
     However, the conduct which is the basis of count 11, the applicant showing pornography on the applicant’s phone to C7, can be distinguished from the other behaviour. This episode did not involve any actual touching of C7, although it nevertheless occurred without any warning of what was being shown and was therefore without his consent. In order to amount to an offence, it is not necessary to prove any lack of consent, or that the applicant was motivated by any sexual interest in C7. All of the allegations by other complainants involve conduct specifically directed at the individual victim, and which included sexually motivated touching or attempted touching of that victim. That feature removes any doubt the act or acts were done for the applicant’s sexual gratification or due to the applicant’s sexual interest in that victim. Although that motivation remains a distinct possibility concerning C7, it is not inevitably so.

120. [120]
     In HML v The Queen,^[31] Hayne J, in the context of a single complainant sexual offence case, considered the admissibility of evidence said to demonstrate a defendant’s sexual interest in the victim. He said:

Evidence of other conduct which did not constitute any offence, but which it is alleged demonstrated the accused’s sexual interest in the complainant (as was the case with HML), may present more difficult issues. It may be harder to decide whether, in the context of the prosecution case, there would be no reasonable view of that evidence consistent with innocence. Deciding whether the evidence, if accepted, demonstrated the accused's sexual interest in the complainant will, in some cases, turn upon the construction put on the conduct in question. That conduct may be equivocal. If interpreting that conduct as showing sexual interest depends upon the prior acceptance of other evidence of separate events demonstrating that interest, evidence of the conduct would not be admissible.^[32]

121. [121]
     It is possible to conclude the purpose of showing pornography to C7 was because of the applicant’s sexual interest in him. It is also open to conclude the applicant did so, not because of his sexual interest in C7, but because of his sexual interest in males generally, as evidenced by the pornography which depicted adult males. Viewed on its own, the purpose of the conduct is equivocal. To draw the inference the conduct demonstrates a sexual interest in C7, so that it amounts to opportunistic sexual conduct directed at a young male, depends upon the prior acceptance of other events, namely, the acts relied upon as the basis of other charges. Evidence of the applicant showing C7 pornography is therefore not capable of demonstrating a tendency of the applicant to non-consensual sexual exploitation of young males.

122. [122]
     All of the other conduct the applicant engaged in, i.e. excluding C7, was without the consent of the individual victims. This includes the uncharged allegations made by some complainants. To engage in indiscriminate sexual exploitation of young people without their consent, is unusual as a matter of ordinary human experience.  I conclude the evidence shows the applicant had a tendency to engage in opportunistic sexual activity with male children or teenagers, regardless of their consent. This is slightly different than the tendency the respondent submitted was demonstrated, however to answer the second question posed in McNeish, I conclude the evidence is capable of proving the tendency I have identified.

McNeish – Step 3

123. [123]
     According to McNeish, it is next necessary to determine whether, accepting the tendency evidence as true, the required connection or nexus, linking the tendency evidence to an issue for decision in the case of the particular charges, exists. As identified above, the primary issue in respect of all of the counts is whether the charged event actually occurred. The connection then, of the tendency evidence to an issue, is proof of those specific allegations. Here, acceptance the applicant had a tendency to engage in opportunistic and non-consensual sexual activity with male children or teenagers, increases the likelihood that the account of each offence, except for that alleged in count 11, is true. As in the case of Hughes, that conclusion can be demonstrated by consideration of the case presented in the absence of evidence of the tendency. The jury’s consideration of the reliability of the individual allegations of each complainant, examined on their own, might seem far-fetched or even unlikely. However, viewed in the context of the applicant’s tendency to engage in opportunistic non-consensual sexual exploitation of young males, those individual allegations might seem entirely plausible. As identified above for count 11, the evidence of that allegation does not establish a tendency to engage in sexual conduct with young males. Conversely, the evidence showing a tendency to engage in non-consensual sexual exploitation of young males for his own gratification, is not capable of making it more likely the applicant exposed a child to adult pornography. I conclude the connection or link between the tendency evidence and the issues in each case, apart from count 11, is established.

124. [124]
     In the passages from Phillips set out above at [116], the High Court concluded the evidence of other alleged sexual offences was not cross-admissible because it did not show striking similarity, hallmark, pattern or signature, etc, and was not capable of showing a distinctive propensity to act in a particular way. The evidence of other alleged offending was therefore not relevant to resolution of an issue in the case. However, those passages show the court acknowledged the potential relevance of propensity evidence to the question of the applicant’s state of mind. It will of course be a matter dependent upon the evidence, but assuming an issue of consent is raised in respect of some complainants, the evidence of the applicant’s propensity may also be relevant to whether the applicant held an honest but mistaken belief that a particular complainant consented to the conduct alleged.

McNeish – Step 4

125. [125]
     The final step in the process, as described in McNeish, is to determine whether the probative value of the evidence is sufficient to outweigh its prejudicial effect. In this case, the use to be made of the tendency evidence is as circumstantial evidence supporting the allegations the basis of each of the charges. The tendency evidence is not capable on its own of proving any of the counts charged, but if accepted, may increase the likelihood the specific allegations are true. Directions to the jury are necessary in order identify and limit the purpose for which the evidence is admitted. Here, this means instructing the jury that when considering each count, the jury can have regard to each other allegation to determine whether that evidence demonstrates the tendency alleged, and if so, use that in determining whether that individual charge is proved beyond reasonable doubt. Such a direction is not so complex as to become unintelligible. It should be assumed the jury will comprehend and follow those directions.

126. [126]
     There is real danger in this case, because of the large number of complainants, that the tendency evidence will overwhelm the jury’s consideration of the proof of individual counts. There is a risk the jury will conclude the applicant is a person of bad character, is deserving of conviction for that reason, or that since he is guilty of one offence, he must be guilty of another or others. Specific and careful directions to prevent impermissible propensity reasoning are therefore necessary. Again, it should be assumed the jury will comprehend and follow such directions.

127. [127]
     Specific complaint is made by the applicant that any direction, however carefully crafted, in this case will be complex and confusing and unlikely to guard against impermissible propensity reasoning. The applicant submits that because of the large number of complainants, and because other issues arise apart from whether the alleged acts occurred, applying such a direction will become problematic. The applicant submits that for count 5, where the real issue will be whether the acts occurred prior to the complainant’s sixteenth birthday, it will be difficult for the jury to apply a direction confining the use to be made of the propensity evidence in circumstances where the defence case will likely acknowledge the applicant did engage in some sexual activity with one or more other complainants. The applicant submits there is an overwhelming risk, despite directions, the jury will effectively use the propensity evidence to determine when the alleged activity occurred.

128. [128]
     Similar complaint is made concerning other counts where consent is an issue. The applicant submits there is a risk the jury will impermissibly regard the propensity evidence as proof of a lack of consent regarding complainants C1, C3, C17 and C18.

129. [129]
     I accept the propensity evidence is not relevant to prove the individual state of mind of complainants. Whether a lack of consent is proved beyond reasonable doubt in respect of any specific charge will depend upon the jury’s acceptance of the evidence of the individual complainant. The relevance of the propensity evidence is limited to whether, assuming the propensity is proved, it demonstrates a tendency to act in a particular way and therefore increases the likelihood that the account of the offence under consideration is true. The direction limiting the use of the propensity evidence in this way will also need to reinforce the requirement that before any specific charge is proved, the complainant’s account of that event must be accepted beyond reasonable doubt. Although adding a degree of complexity, I am satisfied appropriate directions can be formulated which are capable of being understood and applied by the jury.

130. [130]
     Having regard to the use that may be made of the tendency evidence in this case, i.e. as circumstantial evidence potentially increasing the likelihood the separate allegations are true, accepting the truth of that evidence, and that the prosecution case may be accepted by the jury, I conclude the probative value of the evidence is substantial. Viewed as circumstantial evidence supporting the charged offences, I conclude there is no reasonable view of it other than as showing the applicant is guilty of the charged offences. It follows I conclude the probative value of the evidence outweighs its prejudicial effect. The evidence of each of the counts, apart from count 11, is cross-admissible in proof of the other counts. The evidence supporting count 11 is not admissible in proof of the other counts and the evidence of the other counts is not admissible in proof of count 11.

131. [131]
     In further written submissions the respondent asserted that the jury should be directed “that the jury must find the facts proved with respect to each complainant be so similar to the facts proved for the other complainants that there is no reasonable view of the evidence of those other complainants other than that the defendant committed the alleged acts”. It was also submitted the “probative force of the evidence lies in the very reason for its tender; the objective improbability that a complainant has lied about offending that has occurred in similar circumstance to another complainant and making it more likely that what each complainant said is true.” This submission apparently relied upon a quoted passage from the majority judgement in Hoch.

132. [132]
     This submission seems to me to misconstrue the nature of the propensity evidence in this case. In Hoch, the evidence was of three boys each alleging they were indecently dealt with by the defendant. In the majority judgement this was described as “similar fact evidence” and the majority went on to identify the strength of the evidence as follows:

Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.^[33] (Citations removed)

133. [133]
     It was in that context that the majority in Hoch went on to say:

… Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman:

“This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.”

Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies.^[34] (Citations removed)

134. [134]
     What these passages make clear is that the evidence in Hoch was being considered not because it demonstrated a propensity to act in a distinctive way and which might increase the likelihood the offence under consideration was true, but because it showed such striking similarity as to demonstrate the improbability of witnesses giving untrue accounts. In order to use the propensity evidence in this case, the jury do not need to be satisfied of any such similarity. Rather, they need to be satisfied the evidence of the other allegations demonstrates a tendency for the applicant to engage in opportunistic sexual activity with young males regardless of their consent. If so satisfied, the jury can have regard to that propensity in considering whether individual charges are proved. The proposed direction is not appropriate. To introduce the direction suggested by the respondent would be to limit the use of propensity evidence to specific groups of offences.

Evidence of C19

135. [135]
     The material relied upon at the hearing of this matter, as identified above, includes the witness statement of C19. C19 alleges he was sexually assaulted by the applicant on 16 August 2014. The charges which reflected those allegations were dismissed by the Magistrate at the conclusion of committal proceedings because it was accepted the evidence was not capable of excluding a defence of honest and reasonable mistake as to consent. The prosecution have not presented an indictment in respect of those allegations. C19 described that the applicant showed him the massage table in the applicant’s bedroom, told him to undress to his boxer shorts for a massage, and commenced massaging him. C19 did not object. In the course of the massage, the applicant massaged C19’s bottom, rubbed his penis, and performed oral sex upon C19. C19 felt uncomfortable but did not complain and eventually the conduct ended when C19 went to the toilet. When the defendant asked C19 if he wished to continue, C19 said he was uncomfortable and the defendant replied “I thought that was what you wanted”.

136. [136]
     The submissions of the parties do not address the admissibility of C19’s allegations as proof of the counts in the indictment. However, it is my view evidence of these allegations is not admissible in proof of any of the counts charged. C19 was aged 25 at the time of the alleged conduct. His description of events does not involve any overtly non-consensual conduct; hence the charges being dismissed. I am not satisfied the conduct alleged by C19, accepting his version he did not in fact consent to it, is capable of proving the tendency of the applicant to engage in non-consensual sexual exploitation of much younger males.

Joinder

137. [137]
     Although not all charges of the same type, I am satisfied nevertheless, with the exception of count 11, they form a series of offences of the same or similar character such as to satisfy s 567(2) of the Code. Other than count 11, the offences include nine counts of rape pursuant to s 349 (counts 1, 2, 17, 21, 26, 28, 29, 36 & 40), 13 counts of sexual assault pursuant to s 352 (counts 12, 14, 15, 16, 20, 25, 27, 33, 34, 35, 37, 38 & 39), and 17 counts of indecent treatment of a child under 16 pursuant to s 210(1)(a) (counts 3, 4, 5, 6, 7, 8, 9, 10, 13, 18, 19, 22, 23, 24, 30, 31 & 32). Although the charges of rape and sexual assault all require proof of a lack of consent, whereas the indecent treatment charges do not, all allegations involve actual or attempted touching of the complainant by the applicant without consent. All are allegations of sexual misconduct towards an individual. The necessary connection or nexus between the allegations exists since the evidence of each count is cross-admissible. These counts can be tried together.

138. [138]
     Count 11 is the only allegation which does not involve an allegation of actual or attempted touching without consent. I have concluded the evidence of that count is not cross-admissible and vice versa. It follows there should be a separate trial in respect of count 11.

Orders

139. [139]
     In respect of indictment number 407 of 2018, I make the following rulings/orders:

1. The evidence in support of count 11 is not admissible in proof of the other counts on the indictment.

2. The evidence in support of the other counts on the indictment is not admissible in proof of count 11.

3. The evidence of all other counts is cross-admissible in proof of all other counts.

4. Count 11 is to be tried separately from the trial of all other counts.