D v Director of Public Prosecutions (NSW) - Sydney

1. [1]

   In July 2012, Bradd LCM refused an application brought under s 21(2) of the Criminal Procedure Act 1986 (NSW) for the separate hearing of two charges brought against the plaintiff under ss 61M(1) and (2) of the Crimes Act 1900 (NSW). The charges concerned events which allegedly occurred in January 2007 and July 2009. His Honour also concluded that the evidence of the two complainants could be admitted as tendency and coincidence evidence under s 97 and s 98 of the Evidence Act 1995. By a further amended summons, filed in November 2012, the plaintiff seeks leave to appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). In the alternative, orders are sought under s 65 and s 69 of the Supreme Court Act 1970 (NSW), as well as declarations under s 75 of that Act.

2. [2]

   A non-publication order was made in relation to the name and identity of the complainants, given that they were juveniles and the charges have not been heard.

3. [3]

   Count 1 relates to [A], the plaintiff’s niece. It is alleged that while the plaintiff and [A] were both attending a new year’s eve party with other family members, the plaintiff touched her with one hand on the outside of her clothing in the area of her vagina, after they went together to the laundry area of the house.

4. [4]

   Count 2 relates to [B], who was working as a casual employee at a delicatessen owned by the plaintiff. It is alleged that [B] was working in the kitchen area when the plaintiff wrapped an apron around both of them and rubbed his groin against her bottom and lower back area.

5. [5]

   The plaintiff’s application for separate hearings of the two charges was listed for hearing in July 2012. Without objection the Director of Public Prosecutions served tendency and coincidence notices at the hearing and the parties accepted that his Honour’s ruling on the notices would determine the separate trial issue. Statements made by the two complainants, the plaintiff and another witness were tendered and submissions advanced. His Honour gave his decision later that day.

6. [6]

   The tendency notice stated that the tendency sought to be proved was the plaintiff’s ‘tendency to act in a particular way, namely to show sexual interest in girls aged 15 to 16 years’. The coincidence notice specified that the two events to which the notice related were the allegations made by the two complainants in their statements.

The matters pressed on appeal

1. [7]

   The plaintiff complained that his Honour failed to properly consider and provide adequate reasons for the refusal of the application for a separate hearing of the two charges; as well as failing to consider whether the offences arose out of the same set of circumstances; and/or were part of a series of offences of the same or a similar character; or ought to be heard and determined separately in the interests of justice, within the meaning of s 29 of the Criminal Procedure Act 1986 (NSW).

2. [8]

   The plaintiff also complained that his Honour failed to properly consider and provide adequate reasons in relation to whether the probative value of the evidence substantially outweighed any prejudicial effect it may have on the plaintiff, in accordance with s 101(2) of the Evidence Act.

3. [9]

   The Director raised the question of whether refusing an application for separate trials was an interlocutory order within the meaning of s 53(3)(b) of the Crimes (Appeal and Review) Act, observing that similar rulings have been held to constitute such an order, for the purpose of s 5F of the Criminal Appeal Act 1912 (NSW). It also submitted that a decision on the admissibility of tendency and coincidence evidence was not an interlocutory order for the purpose of s 53(3)(b), but accepted that the decision underpinned the conclusion reached as to the refusal of the application for separate trials and that it was accordingly appropriate to examine the correctness of the admissibility question (see R v F [2002] NSWCCA 125).

Jurisdiction

1. [10]

   The plaintiff’s application was made under s 21(2) of the Criminal Procedure Act, which provides:

2. [11]

   Section 29 was also relevant to the application, providing relevantly:

3. [12]

   The appeal is brought under s 53(3)(b) of the Crimes (Appeal and Review) Act, which provides:

4. [13]

   While his Honour gave a decision, he made no formal order in relation to the plaintiff’s separate trial application, concluding simply that it was ‘not granted’. The Director accepted that it was open to the Court to find that this was, ‘in a negative sense’, an interlocutory order. The Director also submitted however, that the refusal of the plaintiff’s application may properly have been characterised as a judgment rather than an order and that under s 53(3)(b) of the Crimes (Appeal and Review) Act, as opposed to s 5F of the Criminal Appeal Act , the lack of a formal order in a negative direction case might preclude a finding that there had been an order made, for the purpose of the section, with the result that the Court had no jurisdiction to entertain this appeal.

5. [14]

   The term ‘interlocutory order’ is not defined in the Crimes (Appeal and Review) Act but it was considered in Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392. There it was observed at [10] - [15]:

6. [15]

   The Director also submitted that there should be a consistency of approach in appeals brought under s 5F of the Criminal Appeal Act and those brought under s 53(3)(b) of the Criminal Appeal Act, notwithstanding the different statutory language, s 5F giving a defendant a similar right of appeal, with leave, in relation to both an interlocutory order and a judgement. In s 5F appeals, the view taken has been that refusal of a separate trial application concerns a procedural matter which requires appellate restraint (see R v Dao [2011] NSWCA 63 at [69]).

7. [16]

   In the circumstances which have arisen in this case, in my view it must be concluded that an interlocutory order has been made, albeit not formalised. The circumstances are not dissimilar to those considered in R v F, albeit in this case the evidentiary ruling was made prior to trial.

8. [17]

   As Spigelman CJ discussed in R v Dao at [6], there is a need to determine questions such as this as a matter of substance, not form. In this case, the missing formality is the entry of an order dismissing the plaintiff’s separate trial application. The parties would even now be entitled to ask that such an order be entered. There is no question that the nature of such an order is interlocutory. It does not finally dispose of the parties' rights and could be revisited in the trial, in the event that circumstances changed (see Hall v Nominal defendant [1966] HCA 36; (1966) 117 CLR 423 at 439 - 40; R v Wright (1990) 90 Cr App R 312 at 338 - 40 and R v Dao at [207]).

9. [18]

   In the result it must be concluded that the Court does have jurisdiction to entertain this appeal.

10. [19]

    The Director did not, however, concede that any views reached on this appeal in relation to the joinder application, could affect his Honour’s decision in relation to the tendency and coincidence evidence ruling, given that was an evidentiary ruling in respect of which no appeal lies under s 53(3)(b). It was accepted, nevertheless, that it was virtually inevitable that given the way in which the matter had been dealt with below, any expression of opinion on that ruling would be adhered to and a course consistent with that opinion taken at the trial.

11. [20]

    The Director’s view of s 53 must, in my view, be accepted. Such an evidentiary ruling is not the subject of an appeal under the section. Nevertheless, in the circumstances which have arisen the ruling must be considered, in order that the appeal in relation to the refusal of the separate trial application, may be determined.

Leave under s 53(3)(b)

1. [21]

   Leave under the section will not readily be given (see Dao v R at [208] -[209]). It is well settled that it is undesirable to fragment criminal proceedings by interlocutory appeals. Not only does the plaintiff have the right to appeal any conviction to both the District and Supreme Courts, but the Local Court itself can revisit the question of the separate hearing of the charges, if circumstances change. Ordinarily, in order to be granted leave under the section a plaintiff must establish that the circumstances warrant a trial being interrupted, there being substantial doubt about an interlocutory order made, which it is convenient to resolve before the trial proceeds (see Kocer v R [2006] NSWCCA 328 at [22] - [23]).

2. [22]

   Like the circumstances considered in Dao v R, this is a case where the question of a separate trial hinged on an evidentiary ruling as to tendency and coincidence evidence. Like in that case, I have concluded that the leave sought should be granted. Here no trial date has been set. The ruling is critical to the decision made in relation to the joint trial and if in error and there is a conviction, will almost inevitably led to an appeal and retrial. The plaintiff has established that his Honour failed to give adequate reasons for his decision, particularly in relation to the balancing exercise which had to be undertaken under s 101 of the Evidence Act.

3. [23]

   In the result I am satisfied that this is a case where the leave sought must be granted, as a matter of justice.

The decision appealed

1. [24]

   His Honour began by noting the two counts to which the application under s 21(2) of the Criminal Procedure Act related, quoting the section and referring to s 29. He observed that the circumstances relevant to the application were that the offences arose out of the same sort of circumstances, or more likely, formed part of a series of offences of the same or a similar character. His Honour then noted the tendency and coincidence notices served, observing that:

2. [25]

   His Honour then turned to consider whether the evidence was admissible as tendency evidence, by reference in s 97 of the Evidence Act. His Honour observed that the prosecution proposed to lead tendency evidence on the basis that the complainants were in the same age group and under the plaintiff’s quasi-authority at the time of the alleged offences.

3. [26]

   His Honour referred to factors discussed in Odgers, Uniform Evidence Law (9th ed, 2010) at p 427, noting that the two occasions in question were separated by a time gap of more than 2 years. He found that there was a specificity as to the alleged conduct; a degree of similarity between the conduct and the circumstances in which it took place, observing that it was the degree of similarity in the circumstances which was the main fact relied on, the circumstances being the complainants’ ages and the plaintiff’s quasi-authority over them. His Honour also noted the evidence of the plaintiff leading one complainant to the isolation of a laundry and coming to the back room of the workplace, in the other.

4. [27]

   His Honour found similarities in the plaintiff’s conduct of interacting with the complainants at a time when they were in an isolated place. He found that this tied in with the use of his quasi-authority over them, given their respective relationships.

5. [28]

   His Honour took the view that it was not necessary that there be similarities in the location of the events, such as both events occurring in a social setting, or place of employment. He concluded that there were sufficient circumstances of similarity, despite the different settings in which the events occurred.

6. [29]

   He concluded that the plaintiff had a tendency to act in a particular way, observing:

7. [30]

   His Honour then turned to consider ‘the other issue’, whether or not the evidence had significant probative value. He observed that probative value was defined, ‘as the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ and ‘significant’ as something regarded as been more than relevant, but less than substantial. Again, by reference to Odgers, Uniform Evidence Law (9th ed, 2010), he observed that ‘the point is the degree of impact on the probability of the existence of a fact in issue’.

8. [31]

   His Honour also observed that the similarity of surrounding circumstances may be such as to lead to significant probative value, even if the conduct is not identical, referring to R v PWD [2010] NSWCCA 209, where the tendency rested on only one significant circumstance, vulnerability. He observed that ‘there is no requirement that tendency evidence be based on similarities’. His Honour concluded that the evidence was admissible as tendency evidence, having significant probative value.

9. [32]

   As to coincidence, his Honour observed that:

10. [33]

    He took the view that while the events were not similar, in terms of the alleged acts, the circumstances were, given the ages of the complainants, the plaintiff’s quasi-authority over them and the manner in which they were allegedly taken advantage of. He concluded that the evidence would have significant probative value.

11. [34]

    His Honour then referred to Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 472, where McHugh J observed:

12. [35]

    In the result his Honour concluded that:

The evidence

1. [36]

   In a statement made in March 2008, [A] gave an account of the events which occurred at the new year’s eve party which she attended with her parents, the plaintiff and his wife, son and girlfriend, at the home of another family member in January 2007. After midnight she went with her uncle to look for her cousin and his girlfriend. He took her to a laundry, where he touched her on the vagina over her underwear and dress, saying ‘I know you’ve been fingered’. She left and returned to her parents. She reported the assault to a friend on 7 January, but did not take it further, because she thought no one would believe her. She reported the assault to another cousin in the following October and then told her parents. She reported the assault to police in March 2008.

2. [37]

   In a statement made by the plaintiff on 18 April 2011, he gave an account of his relationship with [A] and her family and of having in the past assumed full parental responsibility over her, including discipline, when she misbehaved. He said that prior to the new year’s eve party, he had heard that she had been behaving badly at parties and social functions, engaging in binge drinking and sexual encounters with older boys. He described [A] joining him at the party to look for his son and his girlfriend and his conversation with her, after they found them, when they were together on a 2nd floor landing, about her binge drinking and sexual encounters. He said that he threatened to tell her parents if she did not behave; that she defiantly reached out and grabbed his scotch and drank the glass, whereupon her smacked her on the backside in discipline, telling her in an angry voice that she was ‘a little shit’. He described the rest of the evening and his shock when he heard of [A]’s allegations in October, which he denied. He described discussions with other family members, including his brother, about her allegations and misbehaviour. He also described his involvement with other children in cricket coaching and the gourmet food store which he owned and operated between 2003 and 2010, where he managed school age children who he employed. He said that ‘Never once in the performance of any of these roles have I 'acted indecently or inappropriately'. He did not refer to [B]’s complaint.

3. [38]

   In her statement of 22 July 2011, the former girlfriend of the plaintiff's son, gives an account of being employed by the plaintiff at his store in 2004, after school and during school holidays. She gives an account of the plaintiff making inappropriate sexually suggestive remarks to her when she was aged 16. She started dating the plaintiff's son in mid-2006. She attended the new year’s eve party and described the party and [A] leaving them with the plaintiff at the party. She did not see her again that evening. The plaintiff's son told her of [A]’s allegation against his father in early 2008. They broke up in mid-2008

4. [39]

   In [B]’s September 2011 statement, she gives an account of being employed by the plaintiff to work at his store after school, in July 2009. She described the plaintiff coming into the back room where she was working, approaching her from behind and wrapping a work apron around both of them and rubbing his groin area up against her bottom and lower back region, in an action which she described as ‘dry humping’ for about 10 seconds. Afterwards he reduced her shifts and she stopped working there in August 2009. She was shocked and scared that people would not believe her. About two months later, she discussed it with a friend, who encouraged her to tell her parents. She told a teacher at school about four months later and then spoke to a counsellor, who spoke to her parents. She also explained the impact which the assault has had on her.

The cases advanced below

1. [40]

   The parties’ cases were shortly put below. Identification was not in issue. Nor was there any suggestion of collusion by the complainants. Neither of the alleged assaults were witnessed. There is some evidence as to subsequent complaint in each case. The prosecution case was that the plaintiff manufactured circumstances in which he became alone with both complainants, when he assaulted them.

2. [41]

   Without objection, the four statements relied on by the Director were tendered.

3. [42]

   The factors on which the Director relied for both tendency and coincidence were the girls' ages of 15 or 16 and that they were under the plaintiff’s quasi-authority at the relevant time. The statement made by the plaintiff was relied on to establish that there was a quasi-authority position between him and his niece. It was argued that taking the proposed evidence at its highest, it was apparent that it had significant probative value and was of importance in establishing the facts in issue, its weight being a separate consideration.

4. [43]

   Counsel for the plaintiff submitted that the Court’s power to order separate trials flowed from s 21 of the Criminal Procedure Act and that s 29 of that Act embodied the provisions made in s 97 and s 98 of the Evidence Act. He referred to the Crown’s concession that if the tendency/coincidence application failed, there was no basis upon which the separation of the hearings could be opposed.

5. [44]

   It was submitted that the indictment and the statements showed that there were separate individuals, locations and places involved in the two alleged offences; that there were no issues of coincidence and that the material sought to be relied upon by the Director had no significant probative value. The evidence, it was submitted, would be argued at trial to be inadmissible under s 55 of the Evidence Act, as not rationally affecting the existence of the probability of a fact in issue in the proceedings.

6. [45]

   It was argued that the significant hurdles posed by s 97 and s 101 could not be overcome. The evidence did not have significant probative value, nor could it establish tendency, it was submitted, given the differing times circumstances, relationships and acts involved. It could not establish a tendency to commit conduct in particular circumstances. Nor could it establish coincidence, having in mind the requirements of s 98 given the events and the circumstances in which they occurred.

7. [46]

   To advance these arguments particular emphasis was placed on the dissimilarity of the alleged acts. Reference was made to Phillips v R [2006] HCA 4; (2006) 225 CLR 303, it being submitted that while a number of similar complaints may have increased the probability that one or more complainants was assaulted, that did not increase the possibility that the plaintiff had assaulted any particular complainant. In the absence of striking similarities, it could not be concluded that both complainants were telling the truth, one or more of them could be making false allegations.

8. [47]

   It was not submitted that there would be any particular prejudicial effect flowing from the receipt of the evidence, but it was submitted that the circumstances warranted a severing of the hearing of the two charges.

The reasons given were not adequate

1. [48]

   The requirement to give reasons for decisions is well settled and does not require great elaboration here. As discussed by McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 280:

2. [49]

   In the case of evidentiary rulings which effectively dispose of an application such as this, the obligation is of the kind discussed in R v Harker [2004] NSWCCA 427, where it was observed as to a ruling in relation to s 137 of the Evidence Act, at [47]:

3. [50]

   Here the Director’s case was that his Honour’s reasons disclosed that he understood the statutory tests he was applying, albeit giving very, very succinct reasons for the views he reached, particularly in relation to the requirements of s 101 of the Evidence Act. His Honour’s approach reflected that the parties had not submitted that any particular prejudice would flow from refusal of the application or receipt of the tendency and coincidence evidence, as well as the short compass of the evidence over which the matters put in issue turned.

4. [51]

   The cases put below certainly did not emphasise the requirements of the applicable statutory provisions, particularly in the way in which the plaintiff’s case was argued on appeal. The approach adopted below no doubt reflected that the charges concerned two events of short compass, matters which were to be dealt with summarily, rather than before a jury. That also explains why concerns about appropriate directions being given about the receipt of tendency and coincidence evidence and the use to which it could be put in the reasoning process, did not arise and were not addressed. Nor were the circumstances such that one complainant was making more serious allegations than the other. It was the dispute over the alleged similarities between the two alleged offences over which the parties joined issue and directed their submissions, it being common ground that his Honour’s conclusion as to tendency and coincidence evidence would resolve the question of whether or not there should be separate trials.

5. [52]

   His Honour clearly responded to the cases which the parties had so argued, concluding that tendency and coincidence had been established and that accordingly, the trials should not be separated.

6. [53]

   The arguments advanced turned entirely on whether or not the necessary tendency and coincidence could be established and whether or not the evidence sought to be relied on had the necessary probative value. No separate submissions were advanced as to what the interests of justice required in the event that the plaintiff did not succeed on the tendency/coincidence questions.

7. [54]

   Given his Honour’s conclusions about the matters over which the parties had joined issue, it can be inferred that he did not consider that justice demanded that the cases be heard separately, even though he did not separately address that question, which arose under s 29(3) of the Criminal Procedure Act.

8. [55]

   In the circumstances it seems to me that little complaint can be made about his Honour’s approach to the requirements of the Criminal Procedure Act. What was not, however, addressed by his Honour, was the question which arose under s 101 of the Evidence Act, namely the balancing exercise which that section requires and the necessity for giving reasons as to why that exercise led to the conclusion reached. In O’Keefe v R [2009] NSWCA 121, it was observed at [49] - [50] that:

9. [56]

   Even if the Director's submission that his Honour’s reference to R v Pfennig showed that his Honour did turn his mind to the requirements of s 101 of the Evidence Act be accepted, it was necessary for his Honour to give some explanation of why the balancing exercise which the section required be undertaken, favoured the conclusion which he reached. In this case, the failure to give any explanation of the conclusions reached in that regard, establishes the error about which the plaintiff complains on appeal as to the inadequacy of the reasons given.

Tendency

1. [57]

   The starting point is s 55(1) of the Evidence Act, which provides that evidence that is relevant in a proceeding ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. Such evidence is admissible, unless otherwise provided (s 56). The admissibility of tendency evidence is governed by s 97 of the Evidence Act, which provides:

2. [58]

   ‘Significant’ has been held to mean ‘important’ or ‘of consequence’ (see R v Lockyer (1996) 89 A Crim R 457 at 459 per Hunt CJ at CL).

3. [59]

   The tendency here in question was ‘a tendency to act in a particular way, namely to show sexual interest in girls aged 15 to 16 years’.

4. [60]

   In R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492, Simpson J explained at [22] - [23]:

5. [61]

   As discussed in the authorities, the questions raised for determination by the section involve value judgments. Tendency evidence is led as evidence tending to prove the guilt of an accused. Typically a jury is asked to reason that because the accused acted in a particular way on some other occasion or occasions, he or she is more likely to have acted in the same way on another occasion.

6. [62]

   The exercise required under the section is an evaluative and predictive one which must be undertaken in a context where ‘probative value’ is defined in the Dictionary to the Evidence Act as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The facts in issue in each case appear to be firstly whether the plaintiff conducted himself as alleged and secondly, whether he acted with sexual interest.

7. [63]

   In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, Spigelman CJ observed in relation to the definition at [61] - [62]:

8. [64]

   In R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim A 308 (followed in DSJ v R; NS v R [2012] NSWCCA 9, see at [66] - [77]), Simpson J observed:

9. [65]

   In R v PWD it was observed at [64] - [65], however:

10. [66]

    As Simpson J discussed in R v Dao at [182] - [187], assessment of the probative value of any of the evidence relied on to establish this tendency did not depend on any assessment of the credibility or reliability of the evidence. That is a matter to be determined, in the usual way, at the trial.

11. [67]

    His Honour’s conclusion that the evidence here in issue had significant probative value seems to me to have been well open. The conduct relied on to establish the alleged tendency was different and did occur some years apart. There was, however, no glaring difference in its seriousness: in one case touching his young niece’s vagina area on the outside of her clothing and in the other, wrapping an apron around both he and his young employee and pressing his groin against her back and bottom. That conduct did suggest that he had a sexual interest in both complainants and that he acted on that interest opportunistically, when alone with them.

12. [68]

    In both cases the alleged conduct occurred while the plaintiff was alone with the young complainant, with whom he had an ongoing relationship. The plaintiff complained on appeal that there was no basis for the view which his Honour reached as to some link between the two alleged assaults flowing from the plaintiff’s relationship with the two complainants, particularly given that his niece did not consider that he had any authority over her. That was submitted to be a point of distinction to the authority he had over the other complainant, as her employer.

13. [69]

    Contrary to the plaintiff's case, the evidence did establish the nature of the authority he considered that he had over his niece and the circumstances in which he exercised that authority, by hitting her. The plaintiff said in his statement that he had in the past exercised the authority of a parent over her and that he had hit her on the backside, in exercising discipline over her misbehaviour on the night of the alleged offence. In their statements both the plaintiff and his niece refer to contact between them during a discussion about her sexual behaviour, albeit in quite different contexts and using quite different words. Whose evidence will be preferred, need not be determined at this stage.

14. [70]

    In his statement, the plaintiff makes no reference to the allegations made against him by [B], but says that he had never acted indecently or inappropriately to any of his employees. That account of his behaviour is inconsistent with that given by [B] and his son’s former girlfriend. Again, which evidence will be preferred, cannot be determined at this point. It is the question of whether the evidence is capable of rationally affecting the assessment of the probability of the existence of a fact in issue, which had to be assessed. His Honour’s view that it could was clearly open.

15. [71]

    The plaintiff also complained that it was his Honour who considered the locations in which the two alleged assaults occurred, as being a relevant similarity and the parties did not address this. It was submitted that in O’Keefe v R [2009] NSWCCA 121, the view was taken that a tendency to assault females in secluded locations did not have significant probative value (see at [65]) and so that this was a factor which his Honour ought not to have considered, at least without giving the parties an opportunity to address him.

16. [72]

    These criticisms do not seem warranted to me. The evidence which had to be considered fell within very short compass. This was not a circumstantial case like O’Keefe v R, where identity of the assailant was in issue. On the cases which the parties advanced, his Honour clearly had to consider the circumstances in which the alleged assaults occurred. In both cases the allegation was that the plaintiff assaulted a young complainant with whom he had an ongoing relationship, when alone with them. The parties addressed him on those circumstances. The view that there were relevant similarities in the circumstances was open. There was no denial of procedural fairness in his Honour’s approach to that matter.

17. [73]

    The nature of the opportunity to be heard which the rules of natural justice require is that discussed in Adamson v Ede [2009] NSWCA 379, where it was observed at [57] - [59]:

18. [74]

    The plaintiff was given a fair opportunity to meet the case put against him.

19. [75]

    His Honour did not err in weighing up the competing considerations and reaching the view that the evidence could have significant probative value. The relevant considerations were taken into account. His Honour did not mistake the facts, misapply principle or take into account irrelevant or extraneous matters. The conclusion reached was open. The evidence was clearly capable of rationally affecting the assessment of the probability of the plaintiff having had a sexual interest in engaging in the conduct alleged. If accepted beyond reasonable doubt, the evidence rendered it more probable that the plaintiff had acted in the way alleged.

20. [76]

    Section 101 raises an additional barrier or hurdle to admissibility, namely that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the plaintiff. It provides:

21. [77]

    It seems to me that the probative value of the evidence in each case clearly outweighs any prejudicial effect it may have on the plaintiff. While it may be accepted that there will be some prejudicial effect in receipt of the evidence, that it is unfair or substantial prejudice is not apparent.

22. [78]

    The unfair prejudice suggested for the plaintiff on appeal was the risk that the evidence would provide artificial corroboration and would be given undue weight or used in some unfair way, by the magistrate hearing the case, so as to provoke an irrational, emotional or illogical response of the kind discussed in R v SK [2011] NSWCCA 292 at [33] - [35], for example. There it was observed:

23. [79]

    In this case, I cannot see that there is a real risk that the evidence of the alleged tendency will be given more weight than it deserves at any trial. It is relevant in this regard to take account of the fact that the evidence will be assessed by a magistrate, not by a jury. That clearly significantly reduces the risk of any misuse of the evidence, illogical or emotional reasoning, or other unfair prejudice, in my view to the point where it cannot sensibly be concluded that the prejudicial effect of the evidence substantially outweighs its probative value. A magistrate assessing evidence such as this is in quite a different position to that of a jury, being unlikely to engage in impermissible reasoning of the kind referred to in the authorities relied on for the plaintiff. A magistrate is well able to approach the task of objectively analysing the evidence, and which evidence ought to be accepted or which rejected, without engaging in illogically or impermissibly emotional reasoning.

24. [80]

    In the result this aspect of the appeal may not be upheld.

Coincidence

1. [81]

   As discussed in DSJ v R; NS v R [2012] NSWCCA 9 at [55], ‘s98, in its terms, poses this simple question: whether the evidence being considered is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue.’ The section provides:

2. [82]

   Coincidence evidence is defined in the Dictionary to the Evidence Act to mean ‘evidence of a kind referred to in s 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.’ As discussed in R v Nassif [2004] NSWCCA 433 at [51], tendency and coincidence evidence are not necessarily interlinked, and there will be cases where evidence of tendency will be admissible, when evidence of coincidence is not; and at [52], in the case of coincidence evidence, the more numerous the items of similarity, and the more precise, the stronger the inference of improbability and the more likely the admission of the evidence.

3. [83]

   In R v PWD it was observed:

4. [84]

   Section 101 also applies.

5. [85]

   The 'events' here in question are those which [A] and [B] outlined in their statements. Like the circumstances which arose for consideration in DSJ v R; NS v R, those events were sought to be relied on by the Director not only to prove the two charges, but also in order to defeat the application for separate trials. This was not a case, however, where the plaintiff urged another possible explanation for the events relied on, inconsistent with guilt. It was rather the question of whether there were sufficient similarities between the two events and the circumstances in which they occurred to establish coincidence which was in issue. Such similarity must be such as to lead to the conclusion that they have the significant capacity to establish the fact or facts in issue.

6. [86]

   His Honour’s conclusions rested on the similarities which he found in the alleged conduct and the circumstances in which it occurred. They are those earlier referred to: the ages of the complainants; the plaintiff's relationship with them; his sexual interest in them; and how he acted on that interest when alone with them. His Honour came to the view that the similarities were such that it was improbable that the events occurred coincidentally and that the evidence had significant probative value.

7. [87]

   Again, while no doubt there are other cases where coincidence evidence is stronger than that relied on in this case, I consider that there is a sound basis in the evidence for these conclusions, given these similarities. The evidence did provide a basis upon which his Honour could come to the conclusion that it had significant probative value, that is, the evidence could rationally affect the assessment of the probability of the existence of the facts in issue.

8. [88]

   In terms of s 101, while receipt of the evidence is unquestionably prejudicial, its prejudicial effect cannot be considered to substantially outweigh its probative value, for the reasons I have already explained, in relation to the tendency evidence.

Separate trial

1. [89]

   A decision as to whether or not to grant a separate trial is a discretionary one, not lightly to be interfered with on appeal, particularly where the appeal rests on a complaint about an evidentiary ruling. As I have discussed, this appeal is in effect an appeal from such an evidentiary ruling, a ruling which does not appear to have been in error, notwithstanding the failures identified, particularly in relation to the requirements of s 101 of the Evidence Act.

2. [90]

   In my view the circumstances which came to be considered were such that his Honour was entitled to take the view that the offences formed a part of a series of offences of the same or similar character, as s 29 of the Criminal Procedure Act contemplates. The plaintiff did not put this possibility in issue below, consistently with that section itself making clear that such a series of offences may be comprised by ‘two or more offences’. It was the character of the alleged offences and their similarities which was in issue.

3. [91]

   The alleged offences involved two young female complainants of similar age; conduct of similar seriousness, touching the complainants inappropriately on their clothing; and occurred in similar circumstances, namely where the plaintiff took the opportunity to pursue his sexual interest in the complainants, over whom he had certain authority, by taking advantage of finding himself alone with them. Contrary to the case pressed for the plaintiff, that the age of the complainants is an element of the offences with which he has been charged, is not a reason for not considering the complainants’ ages, in determining the questions which his Honour here had to resolve as to the application for separate trials.

4. [92]

   The plaintiff had a particular relationship with each complainant, which enabled him to exercise certain authority over them. In the case of his niece, it was in his own statement that he said he had exercised the role of a parent in relation to her discipline in the past and that was why he touched her on the occasion in question. That evidence was admitted without objection and was thus something on which the Director was entitled to rely in the case advanced and a matter which his Honour had to consider, taking the evidence at its highest. The conclusion which his Honour reached was open on the evidence and was relevant to the view that he plainly came to, that the necessary similarity in the character of the two alleged offences was present.

5. [93]

   It has not been established that the interests of justice required that these two summary charges be heard separately. In the result it follows that while leave to appeal must be granted, the appeal must be dismissed.

Orders

1. [94]

   For the reasons given, I order that: