Here, the appellant appealed against conviction for sexual offences in relation to three child complainants. The appellant contended that the evidence of the oldest child was much less serious and should have been excluded from the trials of the other two complainants. The majority rejected that contention. In explaining the Pfennig test, the majority concluded that the eldest complainant’s evidence fell into the categories of relationship and propensity evidence and was sought to be led to prove a particular tendency and action by the appellant to give vent to that tendency. The majority concluded the evidence was sufficiently probative of the facts in the cases of the other two child complainants as to justify its admission.
Sofronoff P and McMurdo JA and Henry J
17 September 2019
The appellant was charged with sexual offences in relation to three complainant children. After trial, the appellant was convicted on 22 counts. He appealed against conviction, in particular, as to the trial judge’s refusal to grant a separate trial in relation to one of the complainants. Sofronoff P and Henry J delivered the majority judgment and dismissed the appeal. McMurdo JA dissented and would have allowed the appeal with orders for separate trials.
The appellant’s complaint was that the offending against the eldest complainant was dissimilar to that against the others and was therefore not sufficiently cogent as to satisfy the test for admissibility. . The complainant children were siblings, had resided next door to the appellant during the period of offending and the appellant had held a position of trust in relation to them. –.
The majority principally considered that the eldest child’s evidence fell within the categories of relationship evidence, that to prove a motive to commit the offence (motivation evidence) and tendency or propensity evidence. –. After a detailed review of the authorities, the majority asserted that the appellant’s argument had misconceived the Pfennig test and impermissibly isolated the specific evidence of the eldest complainant from the prosecution case taken as a whole. The similar fact evidence “so enhanced the collective force of the relevant prosecution evidence as to leave no reasonable view of the similar fact evidence consistent with innocence”. . Ultimately it was concluded that the probative force of the eldest complainant’s evidence was significant and the first instance decision to refuse separate trials was endorsed. .
McMurdo JA preferred a narrower interpretation of similar fact evidence in the context of the prosecution case. . His Honour focused on the majority’s assumption that the evidence of the eldest complainant would dispel any rational view consistent with the appellant’s innocence in relation to the other two complainants. –. His Honour concluded that the probative force of that evidence wasn’t such as to make it cross-admissible. .
J P Feely of Counsel