BM v R

1. [1]

   BATHURST CJ: The applicant, BM, has sought leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against an interlocutory order of McLoughlin DCJ (the trial judge). By that order, the trial judge dismissed the applicant’s motion seeking orders that charges, involving sexual misconduct in relation to three child complainants on a joint indictment, be tried separately. That joint trial application turned upon the admissibility of tendency evidence. The primary issues on this appeal are whether the trial judge erred in finding that the evidence had significant probative value as there was a risk of concoction or contamination as between the complainants (per s 97 Evidence Act 1995 (NSW)), and whether the trial judge erred in finding the probative value outweighs any prejudice to the applicant (per s 101 of the Evidence Act). For the reasons that follow, leave to appeal should be denied.

Nature of the application

1. [2]

   The joint indictment alleges 15 counts of sexual misconduct on the part of the applicant in relation to three child complainants, each of whom are part of the applicant’s extended family. The counts on the indictment were as follows:

   1. (1)

      Commit aggravated indecent assault on child under 10 years of age (7 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (humping backside through clothing).

   2. (2)

      Commit aggravated indecent assault on child under 10 years of age (7 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (touching backside and vagina).

   3. (3)

      Commit aggravated act of indecency (child under 10 years of age) (7 years) contrary to s 61O(2) of the Crimes Act 1900 (NSW) (masturbating).

   4. (4)

      Commit aggravated act of indecency (child under 10 years of age) (7 years) contrary to s 61O(2) of the Crimes Act 1900 (NSW) (exposing penis and masturbating).

   5. (5)

      Aggravated indecent assault on child under 16 years of age (8 or 9 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (touching vagina on outside of clothing).

   6. (6)

      Aggravated indecent assault on child under 16 years of age (8 or 9 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (causing complainant to touch penis).

   7. (7)

      Aggravated indecent assault on child under 16 years of age (8 or 9 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (touching vagina on outside of clothing).

   8. (8)

      Commit aggravated act of indecency (child under 10 years of age) (6 or 7 years) contrary to s 61O(2) of the Crimes Act 1900 (NSW) (touching own penis).

   9. (9)

      Commit act of indecency (child under 16 years of age) (11 or 12 years) contrary to s 61N(1) of the Crimes Act 1900 (NSW) (touching own penis).

   10. (10)

       Aggravated indecent assault on child under 16 years of age (11 or 12 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (touching breasts and backside).

   11. (11)

       Aggravated indecent assault on child under 16 years of age (11 or 12 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (causing complainant to touch penis).

   12. (12)

       Aggravated indecent assault on child under 16 years of age (12 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (causing complainant to touch penis).

   13. (13)

       Aggravated indecent assault on child under 16 years of age (12 years) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (touching complainant’s leg and thigh).

   14. (14)

       Commit act of indecency on child under 16 years of age (12 years) contrary to s 61N(1) of the Crimes Act 1900 (NSW) (touching own penis).

   15. (15)

       Sexual intercourse without consent with child under 16 years of age (12 years) contrary to s 61J(1) of the Crimes Act 1900 (NSW) (placing finger inside complainant’s vagina).

2. [3]

   Counts 1-4 relate to the complainant PH, who is the granddaughter of the applicant’s sister. Counts 5-7 relate to the complainant KH, who is the stepdaughter of the applicant’s nephew. Counts 8-15 relate to the complainant LMM, who is also the granddaughter of the applicant’s sister. The applicant pleaded not guilty on each count.

3. [4]

   The Crown served a tendency notice in the matter. The tendencies sought to be proved are for the applicant to: (a) have a particular state of mind, being to have a sexual interest in young females, and (b) act in a particular way, being to indecently assault and commit acts of indecency with or towards the complainants. The Crown contended that the evidence of each of the three complainants should be admissible in the trial in relation to all counts on the indictment.

4. [5]

   The applicant objected to the tendency evidence and filed a notice of motion seeking separate trials for the counts relating to different complainants. At the hearing of the motion, each of the complainants was called to give evidence and was cross-examined. The trial judge ruled that all 15 counts on the indictment be heard together in a joint trial, and the evidence of each complainant be admissible as tendency evidence in that trial. Tendency evidence was also ruled admissible in relation to an earlier incident. That incident related to evidence of the applicant’s (admitted) sexual misconduct with his stepdaughter in Queensland in 1996. The applicant conceded in this appeal that this ruling is not an interlocutory order as it does not affect the separate trial application and does not seek to appeal it.

5. [6]

   The applicant seeks leave to appeal on the following four grounds:

   1. (1)

      The trial judge erred in refusing the application for separate trials of the counts relating to each of the three complainants.

   2. (2)

      The trial judge erred in ruling that the evidence of each of the three complainants is admissible as tendency evidence.

   3. (3)

      The trial judge erred in finding that: (i) there is no reasonable possibility that the complainants had concocted their complaints and; (ii) that there is no reasonable possibility that each of the complainants’ complaints were contaminated by the other complainants.

   4. (4)

      The trial judge erred in finding that there is no unfair prejudice to the applicant arising from a joint trial.

6. [7]

   It was accepted on the appeal that in order for the applicant to succeed it was necessary to establish error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (“House v The King”): see DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [78] per Allsop P (“DAO v R”); DSJ v R; NS v R [2014] NSWCCA 77 at [61] per Gleeson JA, with whom Hidden J agreed (“DSJ v R”). Thus it must be shown that the trial judge, in the exercise of his discretion, actined on a wrong principle; allowed extraneous or irrelevant matters to guide or affect him; mistook the relevant facts; failed to take into account some material consideration; or that the result is unreasonable or plainly unjust such that the Court may infer a failure to properly exercise the discretion.

Leave to appeal is required

1. [8]

   Pursuant to s 5F(3)(a) of the Criminal Appeal Act, the applicant requires leave to appeal against the interlocutory order of the trial judge: DAO at [2], [76], [125]; DSJ v R at [4]. The applicant submits that leave should be granted as the evidentiary ruling and the consequent order for joint trials, if in error, would lead to a successful conviction appeal and an order for retrials. The Crown opposes a grant of leave.

2. [9]

   The principles relevant to a grant of leave in a case involving a motion for separate trials are as set out in DSJ v R by Gleeson JA (Hidden J agreeing) at [4]-[11]:

3. [10]

   Before considering the question of leave to appeal, it is therefore necessary to set out the background of the present application and the proposed grounds of appeal.

Factual background

1. [11]

   The Crown case is as follows. Each of the complainants is part of the applicant’s extended family. PH was born in December 1997, and LMM was born in January 2003. Both PH and LMM lived with PM at a house in Kempsey for a period of time. PM is the applicant’s biological niece. Between October 2009 and October 2011 the applicant resided at the house with PH and LMM. The complainant KH was born in October 2001. Her mother is RH. KH visited the house in 2010 or 2011.

2. [12]

   PH, in her statement to police, alleged that when she was 7 years old, in 2005, the applicant called her into his bedroom to play a video game. He closed the door, took off his clothes, laid her down (clothed) on her front on the mattress and lay on top of her, “humping” her “backside” (Count 1). He then groped her bottom and vagina with his hands (Count 2). He then stood up and masturbated himself while looking at her (Count 3). A few days later, the applicant called her while she was playing in the yard. She looked up and saw him standing in the hallway masturbating himself (Count 4).

3. [13]

   KH, in her statement to police, alleged that when she was 8 or 9 years old, in 2010 or 2011, she was visiting the house. The applicant was also there and she asked if she could play on his computer. As she was doing so, the applicant put his hand beneath her shorts and touched her vagina on the outside of her underwear (Count 5). He then exposed himself and asked her to touch his penis, which she did until he said she could leave (Count 6). On another occasion the applicant touched her vagina under her clothes, as she was watching TV with her cousin (Count 7).

4. [14]

   LMM, in her statement to police, alleged that when she was 6 or 7 years of age the applicant called her and KH to play on his computer, while he stood behind the closed bedroom door and played with his penis (Count 8). On another occasion before her 12th birthday the applicant came into her bedroom when she was asleep, stood behind the door and touched his penis (Count 9), touched her on the breasts and backside (Count 10) and made her touch his penis (Count 11). In September or October 2015, LMM was in the spare room painting. The applicant came into the room, shut the door, grabbed her left hand and put it near his penis (Count 12), put his hand on her leg and rubbed her left inner thigh (Count 13) and rubbed his penis while looking at her (Count 14). The following day while LMM was playing the PlayStation he put his finger inside her vagina (inside her underpants) (Count 15).

Background of complaints

1. [15]

   The evidence as to how the complaints unfolded is as follows. In October 2015, when she was 14 years of age, KH spoke to her mother RH about another incident. RH asked KH if anyone else had done anything to her. KH responded that “Dad’s uncle” had. RH suggested “[BM]” and KH agreed and stated that he would get her to touch him and go into his room to play the computer. She stated that she had seen the same thing happen to LMM and that she wanted to report the matter to police but would speak to LMM first. KH and RH travelled to Kempsey and met with PM. KH told PM that she was having flashbacks about the applicant doing things to her and LMM.

2. [16]

   RH, PM and KH then travelled to Taree, picked up LMM (who at the time was 12 years of age), and went to a park. RH had told LMM by this point that KH had been having “flashbacks” about the applicant.

3. [17]

   LMM and KH then spoke alone at the park. LMM gave evidence that KH said she was having flashbacks about bad things happening when LMM was present, that KH didn’t mention the applicant but LMM “caught onto it” that she was talking about him, and that LMM said “it also happened to me”. KH’s evidence about this conversation was that KH asked LMM three times if the applicant had done things to her, LMM first answered “I don’t know”, then that she didn’t want to talk about it, but the third time answered yes, and told her that the applicant used to watch her from the door when she went into his room to play the computer.

4. [18]

   LMM then (while still at the park) told RH and PM that the applicant had “been rude” to her and KH. They all then travelled to RH and KH’s home in Ballina, and stayed there. On 24 October 2015 they attended the police station and KH and LMM were questioned together in a room. Early in November, both KH and LMM were interviewed separately by police and made the complaints giving rise to the counts on the indictment.

5. [19]

   Later in November, RH rang PH (who at the time was 17 years of age) and told her that the applicant had done things to KH and LMM and asked if he had done things to her. PH replied that he had, and told PM that he had done wrong to her “like he did to LMM and KH”. In December 2015 PH spoke to RH at a family gathering about reporting her complaint to police, and saw KH at that time. She made her decision to complain to police because KH and LMM had. RH arranged for PH to attend Kempsey Police station in January and took her there.

Concoction or contamination

1. [20]

   The applicant submits, and submitted before the trial judge, that the evidence of the manner in which the complaints unfolded gives rise to an inference and strong possibility that the complainants had detailed discussions with each other, and with RH and PM about the applicant prior to making complaints to the police. The applicant also submitted that each of the complainants has a strong motive to lie, because the applicant had told PM that he would report her to the Department of Community Services (DoCS) to have the children in her care (including LMM) removed. It is necessary to consider the contentions of the applicant and the Crown as to the inferences open in relation to the way the complaints unfolded.

2. [21]

   The applicant submitted that there was evidence to suggest that PH may have engaged in detailed discussions with PM, RH, KH and LMM about the allegations and about the sexual misconduct of the applicant with his stepdaughter in Queensland. The applicant pointed to the evidence of PH that she was “not sure” if she had spoken to RH at the family gathering in Kempsey but she thought that she went home before they had a chance to talk. PH also gave evidence that she had overheard PM talking about the applicant’s misconduct with his stepdaughter in Queensland. He also pointed to the fact that PH had initially denied in her evidence that she had spoken to PM in December 2015 about what the applicant had done, but then agreed that she had spoken to PM about it saying “[the applicant] did wrong to me like he did to LMM and KH”.

3. [22]

   The Crown pointed to the fact that PH gave evidence that when she told RH over the telephone that the applicant had “done stuff to me as well” she did not tell RH the details of what the applicant had done to her, and prior to this did not have any discussions with KH or LMM about the alleged assaults. While PH did state she had overheard PM telling someone the applicant had done stuff to a child in Queensland, she had never met anyone from Queensland connected with the applicant. It also pointed to her evidence that before making her statement to police she had not been told what KH and LMM had said, nor did she tell KH or LMM to put anything in their statements. The Crown also pointed to the fact that PH said she was not aware of the applicant threatening to report PM for failing to take proper care of LMM and the other children in her care.

4. [23]

   The applicant pointed to the fact that prior to LMM’s disclosure at the park, she [KH] stated she was sure that the applicant had engaged in misconduct with LMM despite never having seen it or been told about it. He also pointed to the fact that the first complaint to RH was expressed as the applicant making “us” touch him on the penis, and that she further stated “I think he’s done it to [LMM]”. The applicant also pointed to the fact that in KH’s interview with police in November, she stated that LMM had told her that the applicant made her [LMM] touch him, touched her over her clothes and would close the door when she went into the room, and that these things happened at the house.

5. [24]

   The Crown pointed to the fact that KH gave evidence that at the park in Taree, KH and LMM went for a walk and LMM told her that the applicant used to watch her [LMM] from the door to her room and when she would go into his room to play the computer he would close the door. The Crown also pointed to her evidence that KH did not tell LMM any detail about what the applicant had done to her. KH also agreed in cross-examination that the details she gave in her police interview about what the applicant had done to LMM had come from that conversation at the park. KH gave evidence that she had never been told by LMM that LMM was worried that the applicant was going to make a report to DoCS, or that she would be taken out of PM’s care. She denied that her allegations were lies for the purpose of protecting LMM from being taken out of the care of PM.

6. [25]

   The applicant pointed to the fact that RH had told LMM before the park meeting that KH was having flashbacks about the applicant. LMM also gave evidence that PM’s mother told her that the applicant had been in gaol for sexually assaulting his stepdaughter, and that she stated that PM’s mother had said to her that it wasn’t only KH and PH that he had done things to. She also gave evidence that she knew that the applicant had done things to KH because PM had told her when she was younger, and further that KH had told her “everything that happened” but she had no specific memory of that now. LMM also stated in her police interview that she could not remember the applicant putting his hand down her pants on her 7th birthday, but she knows it happened because KH had been having flashbacks about it and remembers it. The applicant also pointed to the fact that in LMM’s initial evidence on the voir dire she denied that the applicant had told PM in LMM’s presence that he would report PM to the authorities, but then later accepted hearing that the applicant was going to ring DoCS during an argument between PM and the applicant about who was going to look after their Nan and the house and kids, and that this made her scared she would be taken away from PM. It should be noted that in cross-examination, LMM was asked whether the applicant said “I’m going to report you to the authorities”, and maintained again that “He never said that he was going to report her to the authorities”. In re-examination when questioned about why she was worried she might be taken away from PM, she stated that “he said that he was going to ring DoCS”, and in the next question maintained that while he didn’t say he would report her to “the authorities”, he did say he would ring “DoCS”.

7. [26]

   The Crown pointed to the fact that LMM had met the applicant’s stepdaughter but never spoke with her about the misconduct in Queensland. She gave evidence that she did not make up what she told the detectives based on what KH had said. In cross-examination she agreed that when KH spoke about “flashbacks” in the past LMM understood she was talking about the applicant but no further detail was discussed. LMM accepted hearing that the applicant was going to ring DoCS during an argument between PM and the applicant about who was going to look after their Nan and the house and kids, and that this made her scared she would be taken away from PM. However, she denied making a false complaint because she was worried about the applicant reporting PM to DoCS.

The judgment below

1. [27]

   After reviewing the relevant authorities and the evidence as described above, the trial judge concluded that the motion should be dismissed. His Honour’s conclusions as to the admissibility of the evidence pursuant to ss 97 and 101 and the separate trials application were as follows:

Submissions

1. [28]

   The applicant submitted that the trial judge failed to acknowledge that a competing inference to be drawn from the complainants’ evidence was the real risk of contamination or concoction. The applicant submitted that the finding that “the Crown has excluded the reasonable possibility that there has been any concoction by the complainants … or there is a reasonable possibility that their evidence is contaminated” (see [27] above) was not available on the evidence.

2. [29]

   The applicant submitted that the trial judge failed to properly consider the test to be applied in s 101(2) and did not set out the factors which support admission of the evidence against prejudice to the applicant. The applicant submitted that the finding that no unfair prejudice flows to the applicant from the cross-admissibility was not open on the evidence.

3. [30]

   The applicant submitted that a proper assessment of the prejudice to him should have involved an assessment of the totality of the evidence and whether a direction could overcome this prejudice and that this was not done. The applicant further submitted that after ruling on the admissibility of the tendency evidence, the trial judge failed to identify whether any prejudice flowed to him if the trials were not separated and failed to identify any directions that may cure such prejudice.

4. [31]

   After referring to the evidence set out at [20]-[26] above, the applicant submitted that a fair assessment of the evidence inevitably raises a strong possibility of concoction or contamination, sufficient to deprive the complainants’ tendency evidence of sufficient probative value. The applicant submitted that the prejudicial effect is likely to be substantial because the jury is likely to engage in an impermissible course of reasoning that the applicant must be guilty because three complainants have made similar complaints. The applicant further submitted that the probative value of PH, KH and LMM’s evidence was lessened by the fact that the Crown has other uncontested evidence (see [5] above) to show the tendency alleged.

5. [32]

   The Crown submitted that the evidence sought to be adduced clearly has significant probative value, and if accepted, is capable of being of importance in supporting an inference of guilt of the applicant on the particular counts charged. The Crown submitted that despite the correct statements of legal principle appearing throughout the judgment below, the trial judge’s finding in terms that the Crown had “excluded the reasonable possibility” of concoction or contamination was unduly favourable to the applicant, as it is not necessary for the Crown to do so in accordance with the authorities, citing Jones v R [2014] NSWCCA 280 at [90] and GM v R [2016] NSWCCA 78 at [111] (see [47]-[57] below). However, the Crown submitted that inherent in this finding is necessarily a finding that there was no evidence of concoction or contamination that would give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value (which it submitted was the correct test).

6. [33]

   The Crown pointed to the fact that there was no evidence that PH was aware of the accounts of KH and LMM, nor vice-versa, other than PH being aware that there were complaints of sexual misconduct. The Crown further pointed to the fact that each of the complainants expressly denied that she had fabricated her evidence. The Crown noted that the “strong motive to lie” suggested by the applicant was implausible where only LMM gave evidence she was aware of the threat to PM, and denied it motivated her to make the complaint. The Crown submitted that this invited the Court to consider that the trial judge ought to have rejected the evidence of LMM and the other complainants that their accounts were truthful and not concocted, contrary to the approach set out by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [52] (“IMM v The Queen”).

7. [34]

   The Crown further submitted that the evidence of KH and LMM concerning how each other came to disclose their offences was to the effect that their exposure to the details of one another’s accounts was very limited, and for the trial judge to have made a finding that they did have detailed discussions with one another contrary to their evidence would be impermissible.

8. [35]

   In relation to the contention that the evidence should not have been admitted pursuant to s 101, the Crown submitted that there were a number of common features of the offending conduct in each of the complainant’s accounts. The Crown submitted that the trial judge expressly considered that exclusion pursuant to s 101 was not warranted, pointing to the last paragraph of his honour’s judgment set out at [27] above. The Crown submitted there was no error in his Honour’s determination of this issue.

Consideration

1. [36]

   As a starting point it is necessary to turn to ss 97 and 101 of the Evidence Act, which have changed the traditional common law approach to the question of tendency evidence and the effect on it of the risk of concoction or contamination.

2. [37]

   Section 97 provides:

3. [38]

   Section 101 provides:

4. [39]

   Under the dictionary to the Act, “probative value” is defined:

5. [40]

   In IMM v The Queen, the High Court considered the interpretation of s 97 of the Evidence Act. The plurality in that case stated that an assessment of the probative value of the evidence looks to the extent of relevance of that evidence: at [43]-[45]. It was emphasised that it is not the task of the trial judge in assessing the extent of relevance to consider questions of credibility or reliability. The words “if it were accepted” in s 97 deny any such consideration. Rather, the only question is whether the evidence has the “capability, rationally, to affect findings of fact”: at [39]. The possible use to which the evidence might be put, which is to say how it might be used, must be taken at its highest: at [43]-[45]. However, there may be “a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury”: at [39]. In such a case “its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance”: at [39]. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as "significant": at [44].

6. [41]

   Evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject of the charge or charges: Hughes v R [2015] NSWCCA 330 at [160]; Hughes v The Queen [2017] HCA 20 at [16]; see also Elomar v R [2014] NSWCCA 303 at [359].

7. [42]

   In Hughes v The Queen [2017] HCA 20 (delivered after the trial judge’s determination in the present case), the High Court considered the scheme established by ss 97 and 101 of the Evidence Act. The plurality stated in relation to s 97, at [16]:

8. [43]

   The approach to be taken in determining whether evidence has significant probative value was summarised by the plurality at [41] as follows:

9. [44]

   The plurality then noted the additional requirements imposed by s 101 in criminal proceedings, where tendency evidence is sought to be adduced about the accused by the prosecution, at [17]:

10. [45]

    The approach required in criminal proceedings was summarised at [18]:

11. [46]

    The High Court also considered the relevance of the common law tests that there be an “underlying unity” or “pattern of conduct” established before tendency evidence could have significant probative value. In relation to that issue, the plurality held (at [40]) that the test posed by s 97(1)(b) is as stated in R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [125], namely that “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”.

12. [47]

    The term “concoction” suggests a deliberate fabrication of the evidence. The term “contamination”, in contrast, may involve an unconscious process of suggestion being adopted: McIntosh v R [2015] NSWCCA 184 at [46].

13. [48]

    In Jones v R (2014) 246 A Crim R 425; [2014] NSWCCA 280 (“Jones v R”), Bellew J (Gleeson JA and Schmidt J agreeing) considered that the primary judge had gone too far in holding that questions of concoction and contamination related to the reliability and credibility of the evidence and could therefore not be taken into account at all in determining the probative value of the evidence. Bellew J stated (at [76], [87]-[90]):

14. [49]

    The issue also arose in McIntosh v R [2015] NSWCCA 184. Basten JA concluded at [47]:

15. [50]

    However, his Honour further observed at [49] that:

16. [51]

    In Hughes v R [2015] NSWCCA 330, Beazley P, Schmidt and Button JJ stated at [201]-[204]:

17. [52]

    In GM v R [2016] NSWCCA 78, Hoeben CJ at CL (with whom Hall and Button JJ agreed) reviewed the authorities set out above at [47]-[51] dealing with the question of where in the process described above in relation to ss 97 and 101, the risk of concoction or contamination should be dealt with, and how evidence of that risk should be treated. Hoeben CJ at CL noted (at [96]) that while there was no occasion for the plurality in IMM v The Queen to consider the issue, some limited guidance could be taken from the following comments of the plurality at [59]:

18. [53]

    Hoeben CJ at CL concluded that the possibility of concoction or contamination is a relevant consideration in determining whether evidence has significant probative value under s 97. Hoeben CJ at CL agreed with the approach taken by R A Hulme J in DJW v R [2015] NSWCCA 164 at [43] that it is an error to determine the issue of concoction or contamination separately from the issue of whether the evidence has significant probative value, stating at [99]-[101]:

19. [54]

    Hoeben CJ at CL then approved the test as stated in Jones v R (at [88]) at [107]:

20. [55]

    Hoeben CJ at CL summarised the relevant test at [111]:

21. [56]

    Button J, however, made the following comments at [129]-[134]:

22. [57]

    The issue did not arise for consideration by the High Court in Hughes v The Queen [2017] HCA 20.

23. [58]

    Both the applicant and the Crown were in general agreement as to the relevant authorities and it was not in dispute that the primary judge correctly considered those authorities, subject to one matter. This was that the applicant submitted the statement of Hoeben CJ at CL in GM v R in relation to whether the tendency evidence was rendered “inherently implausible” by a competing inference was obiter dicta, and the relevant question is whether there are “competing inferences which deprive the evidence of significant probative value”.

24. [59]

    Counsel for the Crown at the hearing also suggested that the language of “risk” was apt to confuse, and rather the task for the judge is to consider whether there is evidence of concoction or contamination giving rise to competing inferences, adopting the language of Bellew J in Jones v R at [90] (extracted at [48] above). She submitted that by doing so, the Court is then looking at the evidence that is in fact there, rather than doubting the truth of the tendency evidence or making a finding that a risk exists despite there being no evidence of it. In her submission, the task of the judge is therefore not to evaluate the likelihood of concoction or contamination but to consider the cogency of any evidence that there was in fact contamination or concoction. It remains difficult to see how a trial judge can determine the “cogency” of any evidence of concoction or contamination without assessing the credibility and reliability of the tendency evidence in a manner contrary to the approach sanctioned in IMM v The Queen.

25. [60]

    Nevertheless, I respectfully agree with the conclusion of Button J in GM v R that it would not be appropriate for this Court to disregard the approach taken by the Court of Criminal Appeal over the last 10 years, in circumstances where the plurality in IMM v The Queen expressly reserved the question of the role that asserted concoction could play with regard to the test contained in s 101 of the Evidence Act. In any event, the principles to be applied are not in dispute between the parties, subject to the submission of the applicant in relation to GM v R (see above at [58]). In relation to that submission, it is clear from the judgment of Hoeben CJ at CL that his Honour was simply, consistently with the authority of IMM v The Queen, pointing out that the task of the trial judge is not to consider credibility or reliability but whether the evidence, taken at its highest is “simply unconvincing”.

26. [61]

    With these authorities in mind, it is necessary to consider whether any of the stated grounds of appeal have been made out. The task of this court is to determine whether the trial judge erred in the exercise of his discretion in accordance with the principles articulated in House v The King.

27. [62]

    In my opinion, the trial judge did not err in ruling that the evidence of each of the three complainants was admissible as tendency evidence in the trial, and therefore there was no error in refusing the application for separate trials. It should be noted that applicant does not assert any error in the trial judge’s reasoning concerning the capability of the evidence to establish the relevant tendencies. Rather, it is submitted that the evidence gives rise to such a strong possibility of concoction or contamination that the evidence is deprived of probative value.

28. [63]

    The trial judge found that the Crown had excluded the reasonable possibility that there has been any concoction by the complainants or tendency witnesses, and excluded the reasonable possibility their evidence is contaminated. In doing so, his Honour adopted an approach which was favourable to the applicant, as it is not necessary for the Crown do so: see Hughes v R [2015] NSWCCA 330 at [204]; Jones v R at [90]; GM v R at [111].

29. [64]

    He did so on the basis that the three complainants had spoken together principally for the purpose of getting each other’s support to make statements to police, and found that there was no evidence from any of the complainants of a suggestion from one to another of the evidence that they may give. The trial judge also rejected the proposed motive to lie, being the concern about a report to DoCS, stating that while there was some evidence from LMM to the effect that she was concerned about being removed from PM’s care, there was no real basis for concoction.

30. [65]

    There is nothing on the evidence, in the statements to police or in the evidence given on the voir dire before the trial judge to suggest that this conclusion was not open to the trial judge in the House v The King sense. Significantly, PH gave evidence that she had never spoken with LMM or KH about the applicant or what he had done, and that she was not made aware of the details of those complaints through RH, but rather decided to complain when she became aware of the bare fact that LMM and KH had made complaints to police. Further, each of the complainants KH and LMM denied having any detailed discussions with each other about their complaints. Their evidence was to the effect that they did not speak to each other about the details of their allegations. Absent an approach that assessed the credibility of that evidence, impermissible under IMM v The Queen, there is virtually nothing to give rise to a competing inference sufficient to deprive the evidence of significant probative value.

31. [66]

    Similarly, there is nothing on the evidence which supports the applicant’s suggested motive of concoction sufficient to give rise to a competing inference depriving the evidence of significant probative value. Each of the three complainants expressly denied that she had fabricated her evidence. Only LMM was aware of the threat to PM in relation to DoCS, and expressly denied that it motivated her to make her complaint. Each of PH and KH denied knowing that the applicant had made a threat to report PM to DoCS. In the circumstances, there is no evidence giving rise to a competing inference sufficient to warrant exclusion pursuant to s 97. The trial judge did not err in holding that the tendency evidence was admissible.

32. [67]

    The submission that the probative value was lessened because the Crown had other evidence to establish the relevant tendency should be rejected. As was made clear in Hughes v The Queen [2017] HCA 20 at [61], tendency evidence is not considered in isolation but “having regard to other evidence adduced or to be adduced”: see Evidence Act s 97(1).

33. [68]

    In relation to s 101, the trial judge expressly held that the significant probative value of the evidence substantially outweighed any prejudice to the applicant from the cross-admissibility of the tendency evidence in the trial. Contrary to the submissions made by the applicant, the trial judge expressly considered that any risk of unfair prejudice could be accommodated by the giving of appropriate directions, evident in his quoting from the passage in BC v R [2015] NSWCCA 327 (see above at [27]).

34. [69]

    None of the grounds of appeal has been made out. The trial judge did not err in refusing the application for separate trials of the counts relating to each of the three complainants. In these circumstances, leave to appeal should be denied.

35. [70]

    MCCALLUM J: I agree with the Chief Justice.

36. [71]

    BELLEW J: I agree with Bathurst CJ.