Jones v R

1. [1]

   GLEESON JA: I agree with Bellew J.

2. [2]

   SCHMIDT J: I agree with Bellew J.

3. [3]

   BELLEW J: MAJ (“the applicant”) seeks leave, pursuant to s. 5F of the Criminal Appeal Act 1912, to appeal against orders made by his Honour Judge Blackmore SC in the District Court:

BACKGROUND

1. [4]

   The applicant has pleaded not guilty to ten counts of aggravated indecent assault, each being an offence contrary to s. 61M(2) of the Crimes Act 1900.

2. [5]

   The three victims of the alleged offending, to whom I shall refer as JA, DA and DMA, are brothers. At the time of the alleged offending the applicant was in a relationship with TS, the mother of the victims. The applicant is not the father of any of the victims, although he and TS had a daughter, from their relationship to whom I shall refer as T.

3. [6]

   In 2012, when the allegations against the applicant were first raised, TS was in a relationship with a person to whom I shall refer as W, and who is apparently a police officer.

4. [7]

   The counts in the Indictment presented against the applicant may be summarised as follows:

5. [8]

   On 31 January 2014, the Crown issued three tendency notices pursuant to s. 97 of the Evidence Act 1995 NSW (“the Act”). Paragraph 2 of the first notice was in the following terms:

6. [9]

   Paragraph 2 of the second notice was in the following terms:

7. [10]

   Paragraph 2 of the third notice was in the following terms:

The Crown case

1. [11]

   When the matter came before the primary judge on 18 February 2014, the Crown outlined the case against the applicant as follows (T6 L40-49):

2. [12]

   In relation to the three tendency notices, the Crown said (T7 L9-23):

3. [13]

   In response to an inquiry from the primary judge about the circumstances in which the complaints first emerged, the Crown said (T7 L44 - T8 L11):

4. [14]

   It was the Crown’s position before the primary judge that the evidence of each of the three victims was admissible as tendency evidence and that accordingly, the trial of the ten counts contained in the Indictment should proceed together. That was opposed by counsel for the applicant on the basis that (inter alia):

5. [15]

   The applicant also initially raised an issue as to whether reasonable notice had been given by the Crown of its intention to rely upon tendency evidence as required by s. 97(1)(a) of the Act. However, counsel appearing for the applicant before the primary judge expressly abandoned any reliance upon that matter (at T6 L18-19).

6. [16]

   A separate issue was raised before the primary judge concerning the validity of the tendency notices. In essence, it was submitted by counsel for the applicant that the form in which the notices had been drafted did not signal an intention to adduce tendency evidence from one victim in support of a charge involving a different victim. The Crown explained (commencing at T13 L11) that this was not the way in which the notices were to be construed, following which counsel for the applicant indicated (at T14 L3-5 and again at T15 L12-14) that he was content to proceed on that basis.

7. [17]

   At the commencement of the proceedings before the primary judge, the Crown tendered a number of documents, including the statements of each of the three victims as well as the statement of TS. At that point, counsel then appearing for the applicant indicated that he did not wish to adduce any evidence and did not propose to cross-examine any of the victims. However, following an exchange with the primary judge, counsel revised that position and indicated that did wish to cross-examine them.

The evidence of TS

1. [18]

   TS made a statement to police on 18 December 2012 which was before the primary judge and which was also before this Court on the hearing of the application for leave to appeal. TS did not give oral evidence before the primary judge.

2. [19]

   In paragraphs (40) and following of her statement, TS said that following her separation from the applicant, she came to an arrangement whereby the applicant would have fortnightly access to T. She stated that over a period of time she became concerned about the deterioration in T’s behaviour, and had developed a particular concern that such deterioration may have been linked to T’s treatment by the applicant.

3. [20]

   At paras. (47) and following of her statement TS recounted a telephone call that she received in late 2012 from the applicant’s then partner, who expressed concern about the behaviour of both T and the applicant. TS then said the following at paras. (48)-(49):

The evidence of JA

1. [21]

   JA provided a statement to the police on 12 December 2012. Having set out the allegations of sexual assault by the applicant, he said the following at para (26):

2. [22]

   JA gave oral evidence before the primary judge. He said (commencing at T6 L1) that it was after his mother had expressed her concerns about T that he disclosed what had occurred between himself and the applicant. He said (T6 L50 – T7 L4) that he was “pretty sure” that when he did so, the other two victims were also present. That account is consistent with the statement of TS. It is also generally consistent with the accounts of DA and DMA which are discussed below.

3. [23]

   JA agreed (T8 L5-10) that he decided to make a statement to police “after talking to mum and (W) and then (DA)”. He was adamant (T8 L14-15) that although he had learned from DA that he (DA) was also sexually abused by the applicant, he did not tell DA the same thing about himself. He could not remember the details of the conversation that he had with DA in that regard (T8 L46-49).

4. [24]

   In cross-examination, JA denied (commencing at T10 L25) that the allegations against the applicant had been discussed “as a family”. He said (T10 L38-44) that after disclosing the applicant’s alleged behaviour to TS, an appointment had been made for him to attend Campbelltown Police Station to make a statement. He agreed (T10 L49 – T11 L8) that W had reassured him about the process of taking the statement, but stated that he did not speak to DA about it (T11 L14-18). It was not suggested to him that he had discussed, with W, any aspect of the allegations prior to making his statement.

5. [25]

   JA said (T11 L30-34) that after he made a statement to the police he was given a copy of it which he took home. He said (T11 L36) that although he told TS that he had made a statement, he did not show it to her and did not tell her where he was going to keep it (T11 L48-49).

6. [26]

   JA agreed (T12 L4 and following) that DA and DMA had also made statements to police but said that he was not sure of where these statements were kept. He said he had not been shown the statements and was only “guessing” that DA and DMA had made them (T12 L36-37). No suggestion was put to JA that any part of his statement had been tailored having regard to the contents of statements made by DA and/or DMA.

7. [27]

   It was not suggested to JA that his evidence was concocted or contaminated, nor was it suggested to him that his complaint against the applicant was motivated by what TS had said about T. His evidence as to discussions having taken place was limited to his reference (at T8 L14-15) to the fact that he had learned from DA that he had been allegedly sexually assaulted by the applicant. However, JA stated unequivocally that he did not tell DA the same thing about himself. This issue was not further pursued in cross-examination.

The evidence of DA

1. [28]

   DA also made a statement on 12 December 2012. Having set out the allegations of sexual assault against the applicant, he said the following at para (13):

2. [29]

   That account of the circumstances in which the allegation emerged was consistent with that of TS, as well as with those of JA and DMA.

3. [30]

   DA also gave evidence before the primary judge. When cross-examined he agreed (commencing at T16 L30) that TS had spoken of her concerns about T at a family dinner, and in particular had expressed a concern that the deterioration in T’s behaviour may be linked to the applicant. DA also agreed that TS had spoken of the suggestion that B (the applicant’s son from another relationship) was also the subject of sexual interference by the applicant. He agreed that it was following this that JA had said (in his presence as well as that of DMA) that the applicant had interfered with him (T18 L7-17).

4. [31]

   DA agreed (T18 L7-8) that he had heard what JA had said on that occasion. It was not suggested to him that he had ever spoken with JA about the allegations, be it before or after they were raised. He denied speaking with DMA about the matter (T21 L3-5). He said that he did not think that any aspect of the allegations was discussed between the time at which they were first raised and the date on which he made his statement to the police (T20 L28-41). It was not put to DA that his motivation in making the allegation against the applicant arose from what was said by either of his brothers, or TS.

The evidence of DMA

1. [32]

   DMA made a statement to the police on 18 December 2012. Having recounted the allegations of sexual assault by the applicant, he said the following at paragraph (16):

2. [33]

   Once again, the account is generally consistent with that of TS, save for the fact that DMA said that he told TS that the applicant had touched him. This is contrary to the statement of TS, who said that when she asked DMA if he had been touched, he put his head down and looked away. DMA’s account is generally consistent with that of JA and DA.

3. [34]

   DMA also gave evidence before the primary judge. He said (commencing at T26 L45) that he was present with TS and his two brothers in early December 2012 at which time TS had expressed concerns about the applicant’s behaviour towards T. He agreed (T28 L44-45) that he was present when JA made allegations against the applicant, and that TS had then asked DA whether he had experienced similar offending (T29 L1-19).

4. [35]

   DMA said (T11 L30-31) that TS had then asked him if the applicant had assaulted him in a similar way. He said that he told her that he had done so. He also said (T20 L4-6) that he had later spoken to W about the matter in the presence of DA. However there was no evidence as to the extent of any such discussions, either with W or with DA. It was not suggested to DMA that those discussions had any bearing upon what he later told police.

5. [36]

   DMA agreed (T31 L1-3) that a decision was made “as a family” to report the matter to police. However he denied (T31 L5-8) that this decision followed “a series of family discussions” or “(his) parents talking …. about the allegations”. It was not put to DMA that he discussed any allegation with either of his brothers. It was also not put to him that his decision to disclose the applicant’s alleged behaviour was motivated, in any way, by what his mother had said about T, nor by what his brothers had said in his presence.

THE FINDINGS OF THE PRIMARY JUDGE

1. [37]

   The primary judge found that the evidence relied upon by the Crown was admissible as tendency evidence, and that the counts in the Indictment should not be separated. I have set out those findings in full when dealing with the specific grounds of appeal. In summary, in respect of the factual question of whether there was evidence of concoction or contamination, the primary judge found that:

2. [38]

   The primary judge also found that:

THE GROUNDS OF APPEAL

1. [39]

   Before dealing with the grounds of appeal, it is necessary to say something about the issues raised by those grounds, and the approach which was taken by the Court at the hearing of the application for leave to appeal.

2. [40]

   The grounds of appeal relied upon by the applicant raised three primary issues, namely whether the primary judge erred in:

3. [41]

   A further issue (“the fourth issue”) which was raised in the written submissions, but which was not referred to in oral argument, was that the notices did not amount to reasonable notice in writing as required by s. 97(1)(a) of the Act, and that they were otherwise invalid because of a failure to indicate that an intention to adduce tendency evidence from one victim in support of a charge against a different victim. As set out in [15] and [16] above, when these matters were raised before the primary judge counsel then appearing for the applicant effectively abandoned any reliance upon them and indicated, on more than one occasion, a preparedness to proceed on that basis. In light of counsel’s clearly stated position before the primary judge, leave should be refused in respect of this issue.

4. [42]

   As to the first three issues, the Crown’s position, in general terms, was that the finding of the primary judge that there was no concoction or contamination in the evidence of the three victims was one which was open to him. The Crown further submitted that the primary judge did not err in declining to follow and apply Hoch and that the preferred approach to the issue, consistent with that followed by the primary judge, was that formulated by Basten JA in BJS v R [2011] NSWCCA 239 (“BJS No. 1”) at [26] and [27], and applied by Hoeben CJ at CL in BJS v R [2013] NSWCCA 123 (“BJS No. 2”) at [65]-[66] . The Crown further submitted that the primary judge was correct to decide that the decision of this Court in Shamouil prevented him from having regard to issues of concoction or contamination when determining the probative value of the evidence, because those matters went only to reliability and credibility.

5. [43]

   The first issue raised by the applicant is a purely factual one. However, the second and third issues highlight, to some degree, differing approaches to the question of how an allegation of concoction or contamination might bear upon the admissibility of tendency evidence, and the assessment of its probative value.

6. [44]

   Ultimately, the Court heard argument on all three issues. It is appropriate that leave be granted in respect of each of them. If the first is resolved against the applicant, the second and third will not require determination.

The findings of the primary judge

1. [45]

   The primary judge extensively summarised the evidence of each of the three victims commencing at p. 2 of his reasons. Having done so he said (at p. 13):

2. [46]

   He then said (at 17-18):

Submissions of the parties

1. [47]

   Senior counsel for the applicant submitted that his Honour had erred in concluding that there was no evidence of concoction or contamination of the evidence of the three victims, and argued that such a conclusion was not reasonably open on the evidence.

2. [48]

   In advancing this submission senior counsel submitted, in particular, that the primary judge had failed to:

3. [49]

   The Crown pointed to the fact that the primary judge had extensively summarised the evidence of the three victims. Leaving aside the consistency in the respective accounts of the alleged offending, the Crown submitted that the circumstances in which the allegations were made tended wholly against a conclusion that they were concocted or contaminated. The Crown pointed, in particular, to the spontaneity of JA’s account, which was immediately followed by those of DA and DMA. It was submitted that such circumstances tended wholly against a conclusion that the allegations were concocted or contaminated.

4. [50]

   The Crown also relied on the fact that there was no evidence of any discussions between the three victims before that time, nor was there any evidence of discussions having taken place between them in the period between the time at which the allegations first emerged, and the time at which they made their statements.

The findings of the primary judge

1. [51]

   The primary judge found the following (at 14-15):

Submissions of the parties

1. [52]

   As is evident from the findings of the primary judge, the principal submission advanced by counsel then appearing for the applicant was that that if the evidence in question was reasonably capable of explanation on the basis of concoction, it should be excluded as tendency evidence. That submission was based upon the decision in Hoch.

2. [53]

   Before this Court, senior counsel for the applicant (who did not appear before the primary judge) sought to maintain that general position. Whilst he appeared to accept that difficulties arise when it is sought to apply decisions based upon common law principles to determinations under the Act, he submitted that the principle in Hoch had been adopted by this Court in BP and FB, and that the primary judge had erred in not following those decisions.

3. [54]

   In response, the Crown emphasised that the determination of any question arising under the Act was to be made according to the terms of the relevant provisions, and not by the application of common law principles which had been developed prior to their introduction. In this regard the Crown relied, in particular, upon recent observations by Basten JA in Saoud v R [2014[ NSWCCA 136 at [38]-[40]. The Crown submitted that these observations confirmed the proposition that common law principles had no application, and can indeed be distracting, to the consideration of issues arising under the Act.

4. [55]

   The Crown submitted that in these circumstances, the primary judge had not erred in declining to apply the principle in Hoch. It was submitted that although there were decisions of this Court which followed Hoch there had, more recently, been departures from it, notably by Basten JA in BJS No 1 at [26] and [27] and subsequently by Hoeben CJ at CL in BJS No. 2 at [65]-[66]. It was submitted that their Honours’ respective observations were to be taken as reflecting the proper approach to the question of the continuing applicability of the decision in Hoch to the admissibility of tendency and coincidence evidence under the Act.

The findings of the primary judge

1. [56]

   Having referred to the decisions in Shamouil and R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363, the primary judge found the following (at 10-11 of his reasons):

2. [57]

   His Honour then referred to decisions in DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 and Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 before continuing (at p. 11):

3. [58]

   His Honour then concluded (at p. 12):

Submissions of the parties

1. [59]

   Senior counsel for the applicant submitted that the decision in Shamouil did not preclude consideration of concoction and contamination when determining the probative value of the evidence. It was submitted that the decision in Shamouil established a general rule, the application of which was subject to identified exceptions. Senior counsel submitted that one such identified exception arose where evidence was contaminated or concocted. In support of these submissions senior counsel relied upon observations made by members of the Court in XY and in DSJ v R; NS v R [2012] NSWCCA 9; (2012) 84 NSWLR 758 which, it was submitted, represented a “relaxation” of the reasoning in Shamouil.

2. [60]

   The Crown submitted that there was no basis, in any of the authorities, for the conclusion that the principles in Shamouil were to be relaxed. In respect of the reliance by senior counsel for the applicant upon the decision of this Court in DSJ, the Crown pointed out that the issues in that case did not bear upon matters of credibility and reliability. A similar submission was made by the Crown in terms of the reliance placed upon the decision in XY. In these circumstances, the Crown submitted that questions of concoction and contamination were relevant only to assessments of reliability and credibility, and thus irrelevant to any assessment of the probative value of tendency evidence.

THE STATUTORY PROVISIONS

1. [61]

   For present purposes, the Act contains two particular provisions which are relevant, namely ss. 97 and 101. Section 97 is in the following terms:

2. [62]

   Section 101 imposes further restrictions on the admissibility of tendency evidence relied upon by the prosecution and is in the following terms:

CONSIDERATION

1. [63]

   For the reasons more fully set out below, I have reached the conclusion that there was no error in respect of the first issue, and that the conclusion reached by the primary judge that there was no evidence of contamination or concoction was well open to him. In those circumstances, it is not necessary to determine the second and third issues. However, as the court heard argument in relation to them, it is appropriate to make some observations about the questions that they raise.

The second issue

1. [64]

   In Hoch the High Court considered the admissibility of similar fact evidence, in circumstances where the question of concoction of that evidence was raised. The plurality (Mason CJ, Wilson and Gaudron JJ) made reference at (296) to the decision of Lord Wilberforce in Director of Public Prosecutions v Boardman [1975] AC 421 at 444 before saying (at 296):

2. [65]

   Brennan and Dawson JJ said (at 302):

3. [66]

   The effect of the decision of the plurality in Hoch was that at common law, the possibility of similar fact evidence being concocted rendered the evidence inadmissible. Hoch was decided prior to the commencement of the Act which refers, not to “similar fact” evidence, but to evidence of tendency and coincidence.

4. [67]

   In R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 this Court (Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ) concluded (at [74]) that Part 3.6 of the Act, within which the provisions regarding tendency and coincidence evidence are contained, reflected an intention on the part of the Parliament to lay down a set of principles covering the field, to the exclusion of common law principles which were previously applicable. The correctness of that approach was recently reiterated in Saoud where Basten JA (with whom Fullerton and RA Hulme JJ agreed) said at [38]-[40]:

5. [68]

   There have been decisions of this Court in which Hoch has been applied to considerations of the probative value of tendency evidence for the purposes of the Act. In BP Hodgson JA (with whom Price and Fullerton JJ agreed) said (at [110]-[111]):

6. [69]

   The effect of his Honour’s conclusion was that if there is a real, as opposed to speculative chance of concoction, the evidence will not have the necessary probative value and will be inadmissible.

7. [70]

   The issue arose again before this Court in FB. Whealy JA (with whom Buddin and Harrison JJ agreed), having acknowledged the decision of this Court in Ellis, said (at [35]):

8. [71]

   The subsequent decision of this Court (Basten JA, RS Hulme and Hall JJ) in BJS No. 1 concerned an appeal against an interlocutory decision to refuse to grant separate trials in respect of counts of sexual offending which were referable to separate complainants. Basten JA, with whom the other members of the Court agreed, said (commencing at [23]):

9. [72]

   RS Hulme J said (at [42]):

10. [73]

    The issue was raised again before this Court (Hoeben CJ at CL, Davies and Adamson JJ) in BJS No. 2, which was the Court’s determination of an appeal by BJS against the convictions for multiple counts of sexual offending at a trial which followed the decision in BJS No. 1. The reliance of the appellant in that case upon the judgment of Hodgson JA in BP led to the following observations by Hoeben CJ at CL (with whom the other members of the Court agreed) at [65]-[66]:

11. [74]

    The primary judge did not refer to BJS No. 1 in his reasons. He did refer to BJS No. 2 in the passage set out in [51] above, although the terms in which he did so suggest that he thought that it was supportive of the position taken by the applicant. As is evident from the passages of the judgment of Hoeben CJ at CL which are set out above (they being passages to which his Honour did not refer) the decision in fact supports the conclusion that the primary judge reached.

12. [75]

    In my view, the reliance placed by the applicant in the present case upon Hoch and those cases which followed it was (as Hoeben CJ at CL described it in BJS No. 2) problematic. Such an approach tends to overlook the decisions in Ellis and Saoud. As Bell JA (as her Honour then was) stated in AE v R [2008] NSWCCA 52 at [44]:

The third issue

1. [76]

   The primary judge concluded that questions of concoction and contamination were relevant only to issues of credibility and reliability. Having reached this conclusion, the primary judge found that the decision of this Court in Shamouil prohibited any consideration being given to questions of concoction and contamination.

2. [77]

   The essence of the submissions advanced by senior counsel for the applicant was that in cases decided since Shamouil (notably DSJ and XY) there had been something of a relaxation in the application of the relevant principles, such that the possibility of concoction or contamination was a relevant consideration when assessing the probative value of tendency evidence.

3. [78]

   In Shamouil this Court (Spigelman CJ, Simpson and Adams JJ) considered whether issues of credibility and reliability were relevant to the determination of probative value for the purposes of (inter alia) s. 97(1)(b). Spigelman CJ (with whom the other members of the Court agreed) said (commencing at [60]):

4. [79]

   In DSJ this Court (Bathurst CJ, Allsop P, Whealy JA, McClellan CJ at CL and McCallum J) considered an appeal against a decision dismissing an application that a number of charges alleging insider trading be tried separately. In allowing the appeal and referring the matter back to the primary judge, Whealy JA (with whom the other members of the Court agreed) said (at [56]):

5. [80]

   His Honour went on to say (at [79] and following):

6. [81]

   Bathurst CJ said (at [8]-[10]):

7. [82]

   Allsop P observed (at [11]):

8. [83]

   Subsequently in XY this Court (Basten JA, Hoeben CJ at CL, Simpson, Blanch and Price JJA) further considered (inter alia) the decision in Shamouil. In that case Basten JA (with whom Simpson J agreed) said (commencing at [66]):

9. [84]

   Hoeben CJ at CL said (at [86]-[89]):

10. [85]

    In the present case, the primary judge found that the possibility of concoction or contamination of the evidence was a matter which went only to issues of credibility and reliability. He concluded, in effect, that in those circumstances the decision in Shamouil precluded him from having regard to any issue of credibility and reliability in an assessment of the probative value of the evidence.

11. [86]

    It must be emphasised that in the course of his judgment in Shamouil, Spigelman CJ made reference to the fact that the relevant authorities were in favour of a restrictive approach to the circumstances in which issues of reliability and credibility might be taken into account in determining the probative value of evidence. He did not describe that approach as one which prohibited the consideration of those issues when determining that question. In describing the approach as restrictive, his Honour recognised that there may be cases in which issues of credibility or reliability may be relevant to that determination.

12. [87]

    The effect of the conclusion reached by the primary judge in the present case was that the decision in Shamouil prohibited, under any circumstances, consideration of issues of credibility. That overstated the effect of the decision in Shamouil, although it does not alter the view I have ultimately reached as to the disposition of the present application.

13. [88]

    Those parts of the judgments in DSJ and XY set out above support the conclusion that in assessing probative value of tendency evidence for the purposes of ss. 97 and 101, it is no part of the function of the Court to assess, and make its own findings as to, the weight of the evidence, or to determine the likely acceptance or rejection of the evidence by a jury. However, they also support the conclusion that in assessing such probative value the Court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence.

14. [89]

    Whether that may extend, in a given case, to allowing a Court to take into account concoction and contamination is a separate question entirely, the answer to which will depend largely upon the evidence. The evidence in DSJ and XY did not involve any issue of credibility and reliability. Accordingly, the Court was not required, in either case, to determine the question.

15. [90]

    It is conceivable that there may be cases in which evidence of concoction and contamination gives rise to competing inferences. It may be that in such a case, those inferences are relevant to a determination of the probative value of the evidence. However, the evidence in the present case does not give rise to such inferences. For the reasons set out below, his Honour’s conclusion that there was no evidence of concoction or contamination was one which was well open to him. In those circumstances, the third issue raised by senior counsel for the applicant based upon the judgments in XY and DSJ does not require determination.

The first issue

1. [91]

   In my view his Honour’s finding that there was an absence of evidence of concoction or contamination was one which was well open to him. I have reached that view for several reasons.

2. [92]

   Firstly, the submissions made on behalf of the applicant that the primary judge failed to properly analyse the evidence, and that his reasons were inadequate, cannot be accepted. His Honour, commencing at page 2 of his reasons, comprehensively summarised the evidence of each of the three complainants, including their cross-examination.

3. [93]

   There are a number of factors which may bear upon a determination of whether evidence has been concocted, or is contaminated. One is the relationship between the complainants. Another is the opportunity for concoction. Another is whether there is a specific factor or factors which might act as motivation to concoct evidence. In the present case, there was obviously evidence of a relationship between that of the three alleged victims and, in turn, a relationship between each of them and the applicant. However, the mere existence of such relationships does not, of itself, support a finding of concoction or contamination. The evidence in the present case, as a whole, runs entirely contrary to such findings.

4. [94]

   His Honour noted (at page 3 of his reasons) that it had not been specifically put to JA that he had concocted his story. He further noted that no reason had been suggested to JA which might have gone some way towards establishing some motive for any such concoction. Those observations were entirely correct. Moreover, although his Honour did not do so, it would have been open to him to extend such observations to the evidence of the remaining two witnesses.

5. [95]

   Counsel who appeared for the applicant before the primary judge did not put to any of the victims, specifically or otherwise, that their evidence was either concocted or contaminated. Moreover, counsel did not put to any of the victims that there was any opportunity for them to concoct their evidence, nor did he put to any of them any factor(s) which might have provided some motivation to do so.

6. [96]

   The evidence in the present case established a spontaneous complaint by JA. That was followed by complaints by DA and DMA. Although those latter complaints were made following questions being put to each of DA and DMA by TS, those questions were open ended. They did not solicit, much less suggest, a particular response. There was no evidence that any discussions had taken place between the three victims prior to that time. There was no evidence of any discussions having taken place between them in the period which intervened between the making of the allegations and the making of their statements. There was also no evidence of anything arising from the discussions which took place between the victims and W which suggested concoction or contamination.

7. [97]

   It follows that I am not satisfied that any factual error was made by the primary judge.

ORDERS

1. [98]

   I propose the following orders:

   1. (1)

      Leave to appeal on the fourth issue is refused.

   2. (2)

      Leave to appeal on each of the first, second and third issues is granted.

   3. (3)

      The appeal dismissed.