R v YF

In this case, the appellant was found guilty of sexual offences involving two complaints. The evidence of each complainant as to the nature of the offending bore various similarities. Before trial, the appellant unsuccessfully applied to sever the counts relating to the first complainant from the count relating to the second on the basis that the evidence of the complainants was not cross-admissible. That application was dismissed on the basis that the evidence was cross-admissible as propensity evidence. The appellant was convicted at trial and appealed on various grounds including that the pre-trial hearing judge erred in refusing to sever the charges. On appeal, Morrison JA and Brown J (McMurdo JA in dissent) dismissed the appeal, finding that the evidence was properly received.

Morrison and McMurdo JJA and Brown J

30 May 2023

The appellant was convicted of three counts of indecent treatment of a child under 16, under 12, under care (domestic violence offence) following a trial. [28]. The offending involved two complainants, A and B. [33]. Counts 1 and 2 involved the appellant touching A’s breast/s with his hand/s and count 3 involved the appellant touching B with his penis. [34]. A and B were sisters, similar in age and appearance. All three counts occurred around a similar time, while the complainants were in the care of the appellant, while the appellant and each complainant were alone and after the appellant had gained the trust of each complainant. [74]–[75].

Prior to trial, the appellant applied to have counts 1 and 2 severed from count 3 on the basis that the evidence of each complainant was not cross-admissible. [38]. The application was dismissed. Following his conviction at trial, the appellant brought an appeal against conviction on various grounds including that the trial judge had erred in failing to sever the counts. [30].

Justice Brown, with whom Morrison JA agreed, held that the evidence was cross-admissible. [87]. In doing so Her Honour gave extensive consideration to the test for admissibility of similar fact evidence at common law. [55]–[66]. The common law imposes a high bar for the admission of similar fact evidence given the prejudicial effect of such evidence on the accused. [57]. The evidence must have a high degree of cogency to overcome its prejudicial effect. [57]. As noted in the leading case of Pfennig v The Queen (1995) 182 CLR 461, “the 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”. [58].

In determining whether the evidence demonstrates the relevant tendency, it is not necessary to have regard solely to the operative part of the offending. [66]. The circumstances surrounding the offending and the relevant uncharged acts may be relevant to establishing the tendency of the accused. [66]. In addition, the similar fact evidence need not, on its own, be sufficient to establish guilt. [84]. Notably, Her Honour held that while R v McNeish (2019) 2 QR 355 sets out an approach for cases of uncharged acts with multiple complainants, the test for admissibility which must be satisfied remains the test in Pfennig. [65].

Where the similar fact evidence is in dispute, the evidence may still be relevant to prove the commission of the acts charged. [63]. However, the probative value of the evidence which “lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred” will be less than if the facts were not disputed (see Pfennig, 482). [63]. Notably, in dissent, McMurdo JA, relied inter alia on the fact that the evidence was in dispute, and was not admitted at trial for the purpose of showing that it was improbable that two witnesses would give such similar accounts. [18].

In the present case, Her Honour noted that “the nature of the offending is… sufficient to establish a propensity or tendency to act upon a sexual interest in young girls in a relationship of trust where they can be taken advantage of albeit with a risk of detection”. [75]. Given the various similarities between the offending against the two complainants the evidence had a high degree of cogency and therefore, a strong probative force. [76]. The evidence given by A demonstrated the relevant propensity of the appellant to commit an offence of the type the appellant was charged with in relation to B and increased the improbability that B’s evidence was untrue, and vice versa. [84]. That was despite differences in the evidence of A and B, particularly in respect of the operative part of the offending. [79].

On that basis Brown J, with Morrison JA agreeing, held that the evidence was cross-admissible and dismissed the appeal.

L Inglis