FEDERAL COURT OF AUSTRALIA W v The Queen [2001] FCA 1648 CRIMINAL LAW – appeal against conviction after jury trial – whether appellant denied right to trial by judge alone. CRIMINAL LAW – appeal against conviction – appellant found not guilty on some counts – whether verdicts of guilty inconsistent with verdicts of not guilty – whether miscarriage of justice where evidence admissible to prove offences of which found not guilty not admissible to prove offences of which found guilty. EVIDENCE – appeal against conviction on several counts – admissibility of evidence – whether evidence admissible on certain counts also admissible on other counts – "cross admissibility" – whether trial judge should have ordered separate trials where no "cross admissibility" – Evidence Act 1995 – tendency evidence under s 97 – coincidence rule under s 98 – similar fact evidence – whether evidence was of significant probative value – whether probative value substantially outweighed risk of prejudice – whether common law principles apply – directions to jury. Seat of Government Act 1908 (Cth), s 4 Criminal Procedure Act 1986 (NSW), ss 30, 31, 32, 33 Criminal Procedure Regulation 1987 (NSW) Jervis Bay Territory Acceptance Act 1915 (Cth), ss 4, 4A, 4B, 4C, 4D ACT Self-Government (Consequential Provisions) Act 1988 (Cth), Sch 5 Crimes Act 1900 (ACT), ss 76, 92K, 365(2), 370 Crimes (Amendment) Ordinance (No 5) 1985 (ACT) Supreme Court Act 1933 (ACT), ss 7, 32, 68, 68A, 68B, 68C Magistrates Court Act 1930 (ACT), ss 92, 94 Evidence Act 1995 (Cth), ss 97, 98, 101, 137 Queensland v J L Holdings Pty Ltd (1996) 141 ALR 353, cited MacKenzie v The Queen (1996) 190 CLR 348, discussed R v Kirkman (1987) 44 SASR 591, referred to King v The Queen (1986) 161 CLR 423, cited Alister v The Queen (1984) 154 CLR 404, cited Pfennig v The Queen (1994-95) 182 CLR 461, discussed Hoch v The Queen (1988) 165 CLR 292, discussed Shepherd v The Queen (1990) 170 CLR 573, cited R v Locke (unreported, New South Wales Supreme Court, 25 March 1997), discussed Foley v R (unreported, NSW Court of Criminal Appeal, 5 June 1997), discussed Garrett (1988) 40 A Crim R 213, discussed R v Perry (1993) 29 NSWLR 589, discussed R v Coles (1993) 31 NSWLR 550, discussed R v Birlut (1995) 39 NSWLR 1, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited Cheng v The Queen (2000) 74 ALJR 1482, cited Johnson (unreported, NSW CCA, 23 July 1990), cited De Jesus (1986) 68 ALR 1, cited Sutton v The Queen (1984) 152 CLR 528, cited KRM v The Queen (2001) 75 ALJR 550, cited Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51, referred to R v OGD (No 2) (2000) 50 NSWLR 433, cited Chamberlain v The Queen [No 2] (1984) 153 CLR 521, referred to R v Tran (2000) 180 ALR 62, cited Gipp v The Queen (1998) 194 CLR 106, cited Conway v The Queen (2000) 98 FCR 204, cited Jones v The Queen (1997) 191 CLR 439, distinguished Commonwealth Evidence Law (2nd ed), Bellamy and Meibusch Evidence (Interim), Australian Law Reform Commission, Report No. 26, 1985 Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions (2001) 75 ALJ 190 W v THE QUEEN A 65 of 2000 MILES, WHITLAM and MADGWICK JJ 23 NOVEMBER 2001 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 65 of 2000 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: W APPELLANT AND: THE QUEEN RESPONDENT JUDGES: MILES, WHITLAM and MADGWICK JJ DATE OF ORDER: 23 NOVEMBER 2001 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The verdicts and convictions on the third, sixth, eighth and ninth counts in the indictment be set aside. 3. There be a new trial of the charges in those counts. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 65 of 2000 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: W APPELLANT AND: THE QUEEN RESPONDENT JUDGES: MILES, WHITLAM and MADGWICK JJ DATE: 23 NOVEMBER 2001 PLACE: CANBERRA REASONS FOR JUDGMENT MILES J: 1 W appeals from his conviction in the Supreme Court of the Australian Capital Territory on 10 November 2000 following a trial by jury. 2 The appellant stood trial on an indictment in the following terms: "The COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT W between 1 January 1988 and 31 December 1988 in the Jervis Bay Territory committed an act of indecency upon another person namely SA who was then of the age of 10 years but under the age of 16 years. SECOND AND FURTHER THAT W between COUNT 1 December 1987 and 31 December 1988 in the Jervis Bay Territory committed an act of indecency upon another person namely SA who was then of the age of 10 years but under the age of 16 years. THIRD AND FURTHER THAT W between COUNT 1 January 1988 and 31 December 1989 in the Jervis Bay Territory committed an act of indecency in the presence of another person namely SA who was then above the age of 10 years but under the age of 16 years, namely 11 years. FOURTH AND FURTHER THAT W between COUNT 1 January 1988 and 14 February 1988 in the Jervis Bay Territory committed an act of indecency upon another person namely MM who was then above the age of 10 years but under the age of 16 years, namely 12 years. FIFTH AND FURTHER THAT W between COUNT 1 January 1988 and 14 February 1988 in the Jervis Bay Territory committed an act of indecency upon another person namely MM who was then above the age of 10 years but under the age of 16 years, namely 12 years. SIXTH AND FURTHER THAT W between COUNT 1 May 1988 and 30 June 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely MM who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976. SEVENTH AND FURTHER THAT W between COUNT 1 June 1988 and 31 July 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person namely MM who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976. EIGHTH AND FURTHER THAT W between COUNT 1 June 1988 and 31 July 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person namely MM who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976. NINTH AND FURTHER THAT W between COUNT 1 March 1984 and 30 April 1984 in the Jervis Bay Territory assaulted a female, namely DA who was then under the age of sixteen years and at the time of such assault committed an act of indecency upon her." 3 The appellant was found guilty and convicted on counts three, six, eight and nine. He was found not guilty on counts one, two, four and five. The jury was unable to agree on count seven and was discharged from returning a verdict on that count. 4 In summary, the appellant was convicted of four offences of a sexual nature committed on three complainants on or above the age of 10 years but under the age of 16 years. The appellant was sentenced as follows: COUNT THREE Act of indecency in the presence of SA – six months imprisonment. COUNT SIX Act of indecency upon MM – twelve months imprisonment concurrent with sentence on count three. COUNT EIGHT Act of indecency upon MM – five years imprisonment cumulative upon sentences on counts three and six. COUNT NINE Indecent assault upon DA – two years imprisonment cumulative upon sentences on counts three, six and eight. 5 His Honour fixed a non-parole period of five years. The effective head sentence of eight years imprisonment and the non-parole period were both ordered to commence on 21 September 2000. SUMMARY OF PROSECUTION CASE 6 The appellant was a resident of Wreck Bay in the Jervis Bay Territory where he ran the general store. The complainants MM and SA are sisters born on 3 June 1976 and 31 January 1978. Their mother is JA. DA is a distant relative, born on 6 November 1970. JA left Wreck Bay in about 1970 following a separation from her husband. The appellant is married to her former husband's sister. The two girls stayed with the appellant and his wife from time to time. All three girls worked in the general store and it was during such employment that the incidents complained of occurred. Count 1 SA, her sister and two cousins, DL and LR, who were daughters of the appellant, went to Pommey's Beach with the appellant to camp for the night. The four girls were swimming naked and just on dusk playing hide and go seek. SA ran up the beach away from the other girls when the appellant grabbed her, pinning her to the ground, and touched her on the chest and the crutch area. Count 2 SA did not recall whether it was the same day as indicated in Count 1 but the four girls and the appellant were diving from Summercloud Bay boat ramp towards Shelley's Beach. The other three girls dived under an area known as the Ledge. SA was cold and climbed on the appellant's back. He put his hands behind him, pushed aside her shorts and inserted his finger into her vagina saying "Jeez it's warm in there." Count 3 SA was working in the appellant's shop and one afternoon after it closed she was cleaning up and clearing the till. The appellant was at the rear of the shop and started a projector showing a movie of women having sex with dogs and horses. The appellant had his shorts around his knees and exposed his erect penis asking SA whether she wanted to be "fucked like a dog". Count 4 MM went swimming with her sister, two cousins and the appellant. She was wearing shorts and a T-shirt. They swam from the boat ramp towards Bullock's Foot around Shelly's Point when the appellant grabbed her by both ankles and pulled her backwards onto his erect penis. He said "Have a look at this" and had his penis exposed from the leg of his shorts. She saw her sister SA get out of the water shaking and upset. Count 5 Later that night MM went camping to Pommey's Beach with her sister, her two cousins and the appellant. On dusk they were swimming and the girls were naked. MM got out of the water and went up the beach where the appellant had a towel around himself. He wrapped the towel around MM also by pulling her backwards towards himself. She felt his erect penis between her upper thighs. Count 6 In May/June following the incident in Count 5 MM was working in the appellant's shop when the appellant used a projector at the back of the shop to show a film of people having sex with animals. The appellant asked her whether she had seen movies such as those he was showing and she asked him whether his wife knew he had them. The appellant replied that every man watched them and that so long as his wife did not find them it was all right. The appellant took MM's hand and placed it on his exposed, erect penis. Counts 7 & 8 Two or three weeks after the incident in Count 6 MM went to the appellant's house some time after 2.30 pm to get the keys to the shop to re-open it. The appellant invited her inside and he wheeled a TV and video set from the lounge room into his bedroom and asked MM if she had ever seen what was on the TV. She went into the bedroom and knelt at the foot of the bed in front of the TV and saw people having sex with animals. The appellant knelt behind her and placed his hand on her back preventing her from rising. He was masturbating. As she went to get up the appellant placed his finger inside her vagina and then into her anus. Count 9 At a time when she was 13, DA, who was able to fix the time as she was having her first period, was working in the appellant's shop. Late in the afternoon she was cooking a hamburger for a customer who was waiting outside the shop. The appellant approached her and rubbed her shoulders. He then slid his hands down her back from behind and put his hands inside her shorts and bikini bottom and she felt his hand on the tampon string. SUMMARY OF DEFENCE CASE 7 The appellant denied through cross-examination of each victim that the events amounting to the charges contained in each count on the indictment took place. His two daughters gave evidence that they were present at Pommey's Beach and at the boat ramp on occasions with the appellant and the complainants and that they observed nothing to suggest any misconduct by the appellant. GROUNDS OF APPEAL 8 The amended grounds of appeal were: "1. The learned trial judge erred in law in refusing the appellant the right of election to trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT), or alternatively in refusing to vacate the order made on 3 July 2000 listing the matter for trial. 2. The learned trial judge erred in law in ordering joinder of the counts in the indictment in that it will unfairly prejudice the appellant, and further or in the alternative his Honour inadequately directed the jury with respect to the limited use they could make of the evidence admissible on one count or counts, in relation to other counts, in that he did not adequately instruct them that:- · they were required to give separate consideration to each count, on the evidence solely relating to that count; · they should ask themselves separately as to each count whether it was made out beyond reasonable doubt; · they were not to use the evidence on one count as relevant or admissible on any other count; · there was a need to take into account an acquittal on the remaining counts. 3. The verdict was unsafe and unsatisfactory on the grounds that there was no corroboration and that the jury returned inconsistent verdicts in respect of several counts, or alternatively on the ground that the respective verdicts were inconsistent with the verdicts of not guilty. 4. The sentences of imprisonment and the respective non-parole periods were individually or in their accumulative effect manifestly excessive." 9 A further alternative ground of appeal was that His Honour erred in not directing the jury as to the use and manner of use of the evidence "cross admissible" in relation to other counts. 10 The appeal against sentence was abandoned at the hearing of the appeal. A further and separate "appeal" against what was identified as an "interlocutory judgment" before trial, by which the appellant was denied trial by judge alone, was not pressed. In fact it merged with the first ground of appeal as set out above. JERVIS BAY LAW 11 The offences all took place in the Jervis Bay Territory. 12 By the Seat of Government Act 1908 (Cth) it was provided that the Federal Capital should have access to the sea (s 4). By the Jervis Bay Territory Acceptance Act 1915 (Cth) ("Jervis Bay Territory Acceptance Act") New South Wales surrendered and the Commonwealth acquired the area defined by the boundaries set out in the Schedule, known as the Jervis Bay Territory. Section 4 of the Jervis Bay Territory Acceptance Act provided: "4(1) Upon the commencement of this Act, the territory set out in the agreement and surrendered by the State to the Commonwealth shall be and is hereby accepted by the Commonwealth as a territory of the Commonwealth. (2) The territory so accepted shall be annexed to and be deemed to form part of the Territory acquired by the Commonwealth for the Seat of Government, to the intent that all laws ordinances and regulations (whether made before or after the commencement of this Act), which are from time to time in force in the Territory for the Seat of Government shall so far as applicable apply to and be in force in the territory so accepted. (3) Sections six to nine (both inclusive) of the Seat of Government Acceptance Act 1909 and the whole of the Seat of Government (Administration) Act 1910 except sections nine and ten shall apply to the territory as if it formed part of the Territory for the Seat of Government." With the accession of self-government by the Australian Capital Territory on 11 May 1989 s 4 of the Jervis Bay Territory Acceptance Act was amended by Schedule 5 of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth). Subsections 4(2) and (3) of the Jervis Bay Territory Acceptance Act were omitted and the following sections 4A, 4B 4C and 4D inserted: "4A. (1) Subject to this Act, the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory. (2) Subsection (1) extends to: (a) sections 6 and 7 of the Seat of Government Acceptance Act 1909; and (b) the whole of the Seat of Government (Administration) Act 1910 except sections 9 and 12 of that Act; but does not extend to any other Act or provision of an Act. 4B.(1) Subject to subsection (2), where, by a law of the Australian Capital Territory in force in the Territory because of section 4A, a power or function is vested in a person or authority (not being a court), that power or function is, in relation to the Territory, vested in, and may be exercised or performed by, that person or authority. (2) The Governor-General may direct that a power or function vested in a person or authority (not being a court) by a law of the Australian Capital Territory in force in the Territory because of section 4A shall, in relation to the Territory, be vested in, and may be exercised or performed by, such other person or authority as the Governor-General specifies. 4C. A law in force in the Territory because of section 4A may be amended or repealed by an Ordinance or by a law made under an Ordinance. 4D. (1) The Supreme Court of the Australian Capital Territory has jurisdiction in and in relation to the Territory, and the Australian Capital Territory Supreme Court Act 1933 and the practice and procedure of that court for the time being in force apply in the Territory as if the Territory formed part of the Australian Capital Territory. (2) For the purposes of subsection (1), a reference in the Australian Capital Territory Supreme Court Act 1933 to an Ordinance or enactment is a reference to an Ordinance or enactment, as the case may be, in force under this Act." statutory offences: indecent assault on a female and act of indecency 13 At the time of the commission of the offence alleged in the ninth count, s 76 of the Crimes Act 1900 (ACT) (the "Crimes Act")(as amended in its application to the ACT by Ordinances of the ACT) provided as follows: "76. Indecent assault A person who assaults a female and at the time of, or immediately before or after, the assault commits an act of indecency upon or in the presence of that female is liable to imprisonment for three years, or, if the female is under the age of sixteen years, to imprisonment for five years." 14 Section 76 was repealed by the Crimes (Amendment) Ordinance (No. 5) 1985 (ACT) which commenced on 28 November 1985. At the same time s 92K was inserted into the Crimes Act. It provides where relevant as follows: "92K Acts of indecency with young persons (1) A person who commits an act of indecency upon, or in the presence of, another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 12 years. (2) A person who commits an act of indecency upon, or in the presence of, another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years." 15 Thus the appellant was convicted of three offences under s 92K and one offence under s 76 as those offences were provided for at the time of their commission by the appellant. Refusal to permit appellant to elect for trial by judge alone 16 Sections 68A and 68B of the Supreme Court Act 1933 (ACT) (the "Supreme Court Act") were inserted by the Supreme Court (Amendment) Act 1993. They provide as follows: "68A Trial by jury in criminal proceedings Criminal proceedings shall be tried by a jury, except as otherwise provided by this Part. 68B Trial by judge alone in criminal proceedings (1) An accused person in criminal proceedings shall be tried by a judge alone if – (a) the accused person elects in writing to undergo such a trial; and (b) the accused person produces a certificate signed by a legal practitioner stating that – (i) he or she has advised the accused in relation to the election; and (ii) the accused person has made the election freely; and (c) the election is made before the court first allocates a date for the person's trial; and (d) where there is more than 1 accused person in the proceedings- (i) each other accused person also elects to be tried by the judge alone; and (ii) each accused person's election is made in respect of all offences with which he or she is charged. (2) An accused person who elects to be tried by a judge alone may, at any time before he or she is arraigned, elect to be tried by a jury. (3) If an accused person makes and then withdraws an election, he or she shall not make another election." At the same time, a definition of "criminal proceedings" was inserted into s 2, namely, "proceedings in the Court for the prosecution of a person on indictment". 17 The appellant sought before the trial to elect for trial by judge alone, but his application in this respect failed. The situation came about in the following way. 18 On 4 June 1997 the Deputy Registrar of the Supreme Court issued a Notice to Practitioners in the following terms: "NOTICE TO PRACTITIONERS CRIMINAL JURISDICTION – PROCEDURE ON COMMITTAL FROM THE MAGISTRATES COURT – OPTION FOR TRIAL BY JUDGE ALONE A revised system of managing criminal proceedings in respect of trials for offences under Territory legislation to enable an accused person to make an election under s 68B of the Supreme Court Act 1933 to be tried by a Judge alone is being introduced. 1. The accused will be given a Notice of Right to Elect for Trial by Judge Alone (s 68B Supreme Court Act 1933) by the Magistrates Court on committal (Attachment "A"). 2. Within eight weeks after a person has been committed for trial, four weeks if the person is held in custody, the DPP shall prepare, file and serve a draft indictment. 3. The matter will be listed at 9.30 am on a Tuesday no earlier than seven days after the draft indictment has been filed. If no draft indictment is filed within the times referred to in 2 above, a date for a directions hearing may be set by the Court. 4. At the first directions hearing, the future conduct of the trial will be considered, including whether the accused will, or might, elect to be tried by Judge alone. 5. When the accused has made his/her election the matter will be placed in the callover list and a date for trial will be allocated at a callover. 6. When the accused has elected to be tried by a Judge alone, the accused will be required to attend for arraignment on a date not less than three weeks prior to the trial date. If the accused adheres to his/her election, the arraignment will proceed and the further hearing of the matter will commence on the allocated trial date without a jury. If the accused decides to vacate the previous election the Sheriff will proceed to summon a panel of jurors for the trial to commence on the allocated date. Sgd J E CIRCOSTA Deputy Registrar 4 June 1997 ANNEXURE "A" NOTICE OF RIGHT TO ELECT FOR TRIAL BY JUDGE ALONE Section 68B Supreme Court Act 1933 If you have been committed to the Supreme Court for trial in respect of an offence against the law of the Australian Capital Territory, you have the right to elect to be tried by a jury or by a judge alone. You will be tried by a jury unless you elect in writing to be tried by judge alone. You should seek legal advice before you make any election. You will be given a notice to attend at the Supreme Court for a directions hearing after you have received a draft indictment from the DPP. When you attend at this time, the future conduct of your trial will be considered and you will be asked whether you will elect to be tried by Judge alone. This election is not available in respect of a trial for an offence against the law of the Commonwealth." 19 On 16 June 2000 a Magistrate committed the appellant for trial on 17 charges alleged by way of information. They included the offences charged in the amended indictment. 20 The appellant was represented in the committal proceedings by Mr Michael O'Keeffe, a solicitor instructed by the Aboriginal Legal Service. It is common ground that the appellant did not receive a copy of the Notice of Right to Elect for Trial by Judge Alone, being attachment "A" to the Notice to Practitioners of 4 June 1977. 21 The terms of the order committing the appellant for trial were not available in the appeal. Assuming that they were in accordance with s 92 of the Magistrates Court Act 1930 (ACT), the Magistrate would have read to the appellant the offences for which he was committed, given him the usual warning and questioned him as to whether he wished to say anything in answer to the charges. The Magistrate would have asked the appellant if he decided to give evidence or call any witnesses. Whether or not the appellant gave evidence or called witnesses, the Magistrate would have proceeded under s 94 which prescribes the following procedure: "When all the evidence for the prosecution and the defence has been taken - (a) … (b) it shall commit him or her to take his or her trial for the offence before the Supreme Court and in the meantime either shall by warrant commit him or her to jail, a lockup or a remand centre, to be there safely kept until the sittings of the Court before which he or she is to be tried, or until he or she is delivered by due course of law or admitted to bail in accordance with the Bail Act 1992." 22 The appellant was released on bail immediately by order of the Magistrate. The written bail undertaking shows the appellant's address as at Wreck Bay and records his agreement to forfeit $2,000 in the event of failing to appear. The terms of bail included an undertaking to appear at "the next sitting of the ACT Supreme Court [blank] day of [blank] at 10.00 am" and certain other conditions. One of the bail conditions meant that the appellant could not reside in Wreck Bay. The bail undertaking was not a model of clarity. 23 On 30 June 2000 the Commonwealth Director of Public Prosecutions ("the DPP") wrote to Mr O'Keeffe advising him that the forthcoming trial of the appellant was listed in the Supreme Court callover on Monday 3 July 2000 at 9.30 am and that it was anticipated that the trial would be listed for the fortnight commencing 18 September 2000. On the same day Mr O'Keeffe sent a letter to the appellant at an address at Huskisson relaying the information from the DPP and asking the appellant to ring his office. 24 On 3 July 2000 the Supreme Court conducted a callover of outstanding criminal matters, a regular procedure in the Supreme Court. The callover was conducted by Higgins J. The appellant did not appear. Mr O'Keeffe informed his Honour that he had been acting in the committal proceedings on the instructions of the Aboriginal Legal Service and that arrangements for further representation were still in train. Mr O'Keeffe intimated that there would almost certainly be an application for separate trials in relation to some of the charges on which the appellant had been committed for trial. His Honour indicated that directions hearings would also be desirable and that the prosecution would need to settle a draft indictment for the purpose of the question of separate trials. Mr O'Keeffe further intimated that there could be a problem if the trial date were fixed without ascertaining whether the date was suitable to the appellant. His Honour said that if there was such a problem an urgent directions application could be made to vacate the trial date or for any other appropriate purpose. His Honour then fixed the trial to commence on 18 September 2000 and noted that the trial was expected to continue until 26 September 2000. 25 The matter next came before the Supreme Court on 16 August 2000. The purpose of the listing is unclear. The presiding Judge, Higgins J, considered that the case was listed for pre-trial directions, also a procedure which is usual in the Supreme Court after a trial date has been fixed. Mr Lalor, counsel for the DPP, said that he had been informed that the matter was listed for argument about severing the indictment. Mr Lalor handed up a "draft" indictment for that purpose. Mr Sabharwal, appearing for the appellant, said that the attitude of the appellant as to severing the indictment would depend on whether he was able to exercise his option to elect for trial by judge alone. Mr Lalor indicated that he opposed the ordering of separate trials in respect of the several complainants and further indicated that the prosecution did not concede that the appellant had the right to election for trial by judge alone since the trial date had already been fixed. Mr Sabharwal asked his Honour to vacate the trial date on the ground that it had been fixed prematurely in that his client had been denied the opportunity of considering his right to election, which right the Practice Direction of 4 June 1997 was designed to protect. 26 On 28 August 2000 his Honour ruled that, as a date for trial had been fixed, the appellant no longer had the right to trial by judge alone on the counts in the draft indictment. A voir dire hearing was held at Jervis Bay and as a consequence on 15 September 2000 his Honour also ruled that certain counts in the draft indictment be severed. The trial proceeded on an indictment presented on 18 September 2000 to which the appellant pleaded not guilty. It contained the nine counts set out at the beginning of these reasons. ELECTION FOR TRIAL BY JUDGE ALONE 27 I am not able to agree that the appellant was denied the lawful exercise of a right to trial by judge alone. The submissions on behalf of the appellant have force only if it is assumed that ss 68A and 68B of the Supreme Court Act were passed for the purpose of conferring on an accused person a right (fundamental or otherwise) to choose between jury trial and trial by judge alone. What those sections do, in accordance with the ordinary meaning of the words, is to require that the Supreme Court conduct criminal trials by jury, except as otherwise provided. It is otherwise provided that the Supreme Court conduct a trial by judge alone where certain conditions are met. An opportunity is given to a person committed for trial (or in respect of whom an information is filed under s 68(2) of the Supreme Court Act), exercisable according to those circumstances, to waive trial by jury (which, it may be accepted, is not guaranteed by s 80 of the Constitution in respect of trials for offences against the laws of a Territory) by electing in writing to submit to a trial by judge alone. Absent those circumstances the opportunity simply does not arise. One of the necessary circumstances is that the election be made before the Court first allocates a date for the person's trial. In my view, s 68B cannot be read to deprive the Supreme Court of the necessary power, according to its administrative processes, of allocating dates for trial and otherwise arranging the time of the Supreme Court for the disposition of its workload, or to limit that power. There may be cases in which the allocation of a date for trial occurs as part of a series of circumstances which constitutes a denial of a fair hearing to the accused. For instance, a trial might be fixed so soon after committal that the accused does not have a reasonable opportunity to prepare the case for trial, or the trial might be fixed for a date on which the attendance of witnesses for the accused cannot be secured. If in such cases the trial date is not vacated, or the hearing is not adjourned, a conviction following the trial might be regarded as a miscarriage of justice. However, that will result essentially, not from the fixing of the date for trial, but from a failure to vacate the date or the failure to adjourn, viewed in all the circumstances. Fixing a trial date without ascertaining from the person facing trial whether he or she elects for trial by judge alone does not of itself mean that the trial which follows is unfair. The fact that the Supreme Court through its procedures set out in the Practice Direction has attempted to maximise the opportunity given to the person facing trial to consider electing for trial by judge alone does not affect the reality that there is nothing essentially unfair about trial by jury. 28 There is another practical factor. Although it has been stated in the plainest terms that justice must not give way to case management: Queensland v J L Holdings Pty Ltd (1996) 141 ALR 353 at 357, there is a view (which I support) that to defer the fixing of a date for trial until the parties have acknowledged that they are completely ready is a very inefficient way of the Court's discharge of the duty to ensure the expeditious and efficient dispatch of its workload (see s 7 and s 32, Supreme Court Act). Principle suggests and experience confirms that the more effective way is to allocate, at an early stage, after committal, a date for trial, by which it is reasonably expected that the parties will be ready, and then to manage the case by pre-trial procedures in order to ensure that the parties are ready for hearing by the allocated date. If by or on the allocated date it is considered by the Court that justice would not be served by proceeding on that date, the date may be vacated, or the hearing may commence and proceed to a stage where it is adjourned, again depending on the circumstances. These seem to me to be elementary principles in the administration of justice. Far from denying justice they facilitate access to justice for all. The power to allocate a date for trial is so much the inherent business of a court to manage the dispatch of its workload that it is not to be interfered with except by clear statutory intention (as for instance in the establishment of the Listing Directorate in New South Wales). Such an intention is not exhibited by ss 68A and 68B of the Supreme Court Act. 29 I do not see the question of the denial by the Supreme Court of a trial by judge alone as giving rise to an issue of an unsafe or unsatisfactory verdict or a miscarriage of justice. The issue is one of statutory construction. The appellant did not elect for trial by judge alone before the date of trial was first allocated. In accordance with ss 68A and 68B he was tried by a jury instead of a judge. That in itself could not be a miscarriage of justice. 30 In the light of the above it is not necessary to express an opinion on the survival or extinction, in the Territory, of the old remedy of venire de novo, by which a court of appropriate jurisdiction might authorise the issue of a writ requiring the Sheriff to summon a new lot of jurors when, for some fundamental but formal defect, there has not in law been a trial at all. INCONSISTENT VERDICTS 31 It was submitted for the appellant that the findings that he was not guilty of the offences charged on counts one, two, four and five (together with the jury's failure to agree on count seven) were inconsistent with the findings of guilt on the counts on which he was convicted. The inconsistency was submitted to be a factual inconsistency between the verdicts of acquittal and the verdicts of not guilty. The principles relating to factual inconsistency between jury verdicts are part of the body of law relating to unsafe and unsatisfactory convictions. Unless the inconsistency is such as to cause an appellate court to conclude that a verdict of guilty is unsafe or unsatisfactory (or, in other words, that there has been a miscarriage of justice) the appellate court may not set aside the conviction. The principles were gathered recently by the High Court in MacKenzie v The Queen (1996) 190 CLR 348. Gaudron, Gummow and Kirby JJ (with whom Dawson and McHugh JJ agreed on the point) stated at 365: "The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory." 32 Their Honours continued at 365: "If the result of [a series of verdicts] is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory." 33 Their Honours then set out over three pages a number of general propositions which may be summarised as follows (footnotes excluded): (i) There is a distinction between legal inconsistency and factual inconsistency. (ii) Apparent factual inconsistency is inevitable where co-offenders are tried separately and may be no more than the result of different evidence or different views taken by different juries. (iii) Where the inconsistency arises from verdicts on different counts on the indictment the test is logic and reasonableness. (Emphasis added.) (iv) Having regard to the respect which the law assigns to juries, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their task as required, that conclusion will generally be accepted. Their Honours approved the "practical and sensible remarks" of King CJ in R v Kirkman (1987) 44 SASR 591 at 593 which end with the following: "Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty." (v) In a "residue of cases" the different verdicts represent an unacceptable affront to logic and common sense, such that the inconsistency rises to the point that the appellate court considers that intervention is required to prevent a possible injustice, and in such cases the relevant conviction will be set aside. (vi) The obligation to establish inconsistency of verdicts rests upon whosoever makes the submission. But once an appellate court is persuaded that a verdict cannot stand, it must set aside the conviction. On the other hand (statute apart) the appellate court may not disturb the acquittal. Whether the appellate court enters a verdict of acquittal in place of the conviction set aside or orders a new trial depends on the circumstances of the case. 34 In MacKenzie v The Queen all Justices of the High Court held that the verdicts were not so inconsistent to render the conviction unsafe and unsatisfactory for that reason alone. However, the conviction was set aside on a separate ground, namely that there had been a miscarriage of justice as a result of inadequate direction to the jury. 35 In the present appeal it was not suggested that there was some inconsistency between the case that was left to the jury and the way in which the Crown had conducted the case, as for instance in King v The Queen (1986) 161 CLR 423 and in Alister v The Queen (1984) 154 CLR 404. Further, since the submissions on behalf of the appellant on this ground did not descend to particularity, it is not necessary to refer to the whole of the evidence. 36 In general terms, it was submitted that, having regard to the findings of not guilty on counts one, two, four and five, the jury must have treated the evidence of SA and MM as generally unreliable. However, this is to state the position too broadly. Clearly, the jury considered the evidence of those two witnesses insufficiently reliable to sustain a finding of guilt on counts one, two, four and five. Neither was able to fix accurately or even reasonably approximately the dates of the incidents at Pommey's Beach. The events of the evening as recounted by SA in relation to count one were very similar to those recounted by MM in relation to count five, although neither saw the other being assaulted. Similarly, the events of the day or evening when the girls were diving off the boat ramp as described by SA in relation to count two and by MM in relation to count four were very similar. Although MM claimed to have seen SA come out of the water shaking and upset, neither witness observed the assault on the other or observed any conduct of the appellant consistent with an assault in the water on the other. MM said that the assault at Pommey's Beach was on the evening of the same day as that of the assault in the water. SA was unable to remember. 37 The two daughters of the appellant gave evidence in the defence case. DL was 22 years old when she gave evidence and recalled camping at Pommey's Beach once when she was in early high school. LR recalled being at Pommey's Beach when she was about nine or ten. They both recalled taking their clothes off and swimming in the water that night and later sitting and talking around the camp fire. Otherwise they noticed nothing unusual and nothing consistent with an assault on either of the complainants by the appellant. 38 However, in relation to counts three, six, seven and eight where it was alleged that the offences had occurred in the appellant's shop or house, the situation was quite different. On neither version of the complainants did anything occur in the presence of the other or anyone else. The possibility of joint concoction was not put to the jury on behalf of the appellant or suggested to either of the witnesses in cross-examination and it was not submitted on the appeal that his Honour should have raised that matter with the jury. Moreover, the evidence on these counts wore a striking common feature. Each complainant said that the offence committed on her occurred when the appellant set up a projector in the shop, or a TV and video in the house, began to show pornographic movies and exposed his erect penis. That evidence, if not concocted by the two girls together, was capable of being accepted by the jury as not having been fabricated or imagined by each girl independently. Whereas the jury were prepared to entertain a doubt about events on the beach and in the water they did not entertain doubts as to the allegations about what happened in the shop and at the house. Nor was the jury obliged to entertain such a doubt. The verdicts were capable of being sustained on a rational basis. 39 Moreover, the evidence in relation to the ninth count contained a further item lacking in the evidence on the other counts. The complainant claimed to be able to remember with some precision the date on which the offence occurred although it was some 16 years previously. She had what the jury were entitled to accept as an acceptable basis for having such a recollection. The appellant, according to the complainant, invited her, within a very short space of time after the alleged assault, to return and watch some X-rated movies with him. Moreover, despite the absence of any allegation about pornographic movies, the complainant described a method of approach on the part of the appellant which was similar to that alleged in relation to the other offences in the shop. 40 Something was sought to be made, in this context, of the apparent inconsistency and the failure to agree on count seven (causing digital penetration of the vagina) as compared with the conviction on count eight concerning the immediately following alleged digital penetration of the anus. The evidence was, however, that the complainant did not include in her statement to the police the assertion which she made in evidence that the appellant made her vagina bleed. There was no such inconsistency in relation to the count eight evidence. If it matters, this could very well explain a lack of agreement on count seven. 41 There was no inconsistency between the verdicts of guilty and the verdicts of acquittal. JOINDER OF COUNTS AND CROSS ADMISSIBILITY 42 After hearing evidence on the voir dire Higgins J gave a lengthy and considered decision on the question of joinder on 14 September 2000. It is not clear on the material in the appeal exactly what the appellant's counsel asked for in relation to the proposed 18 counts involving seven complainants. It appears that they were set out in the document variously described in the transcript as a "draft" or "original" indictment. The exact nature of that document is not clear. It was not available in the appeal. Be that as it may, the trial judge ruled that nine of the proposed counts should be "severed" and that the remaining nine be joined in the same indictment. His Honour's reasons may be summarised thus: (a) The evidence as to the several swimming incidents was cross-admissible, that is, as to each incident in relation to every other, as part of the "res gestae"; (b) The evidence as to the several pornographic material incidents was cross-admissible, as to each incident in relation to every other, as "similar fact" evidence; (c) Evidence of (a) and (b) was also cross-admissible, that is, the evidence of (a) was admissible to prove (b) and the evidence of (b) was admissible to prove (a). 43 I agree with the submissions on behalf of the appellant that (a) and (b) were not cross-admissible on a "res gestae" basis or on a strikingly similar fact basis. The Evidence Act 1995 (Cth) (the Evidence Act) does not propound either basis as a test for admissibility. 44 Nevertheless, in my view, (a) was relevant to (b) and vice versa. The fact, if proved that the appellant engaged in the sexual abuse of two young girls in his employ by touching them inappropriately and by exposing his penis on some occasions, affected the likelihood or otherwise of the hypothesis that he showed them (and a third) pornographic material on video or film on other occasions, and conversely. Therefore the evidence as a whole passes the first and most important test of admissibility and the various elements of that evidence are "cross-admissible". 45 Higgins J considered that the evidence as to (a) and (b) as a whole was tendency evidence under s 97 of the Evidence Act and that to be admissible it had to pass the stringent test of significant probative value imposed by s 101. It appears that his Honour also considered that the evidence as to (a) and (b) as a whole was subject to the coincidence rule imposed by s 98 and hence subject also to the significant probative value test imposed by s 101. 46 However, I think it is necessary to say that the evidence as to the swimming incidents and as to the pornographic materials evidence taken as a whole was not tendered by the prosecution as tendency evidence under s 97. No tendency notice was given. On the other hand it has to be borne in mind that the relevance of the swimming incidents to each other and of the pornographic material incidents to each other, and the evidence of both series of incidents taken as a whole, lay in the very improbability (as the jury might see it) of the incidents occurring coincidentally. If the various incidents were "related events" under s 98, it followed that the coincidence rule imposed by s 98 applied, and a coincidence notice should have been given (it was not). 47 In either event, whether under s 97 or s 98, the test of significant probative value under s 101 would have remained the same. His Honour took the view that the significant probative test was an aggregation of the "no reasonable hypothesis" test which his Honour thought was made necessary as a result of the decision of the High Court in Pfennig v The Queen (1994-95) 182 CLR 461 and, in the circumstances, the further test of "no possibility of concoction" which his Honour considered was necessary as a result of the High Court decision in Hoch v The Queen (1988) 165 CLR 292. 48 It may be desirable to elaborate a little here. McHugh J stated in Pfennig at 529 that if the evidence does no more than to prove a mere propensity or tendency to commit crime of the kind in question, it will never have sufficient probative value to make it admissible. However, with respect, there may be cases in which the probative value does have that character. Evidence which shows nothing more than propensity might conceivably go to rebut a positive assertion by the accused of previous good character. Another example might be evidence of the possession by an accused of materials depicting children in pornographic acts where the accused is charged with a sexual offence against a child (an example which is close to the situation in the present case). Indeed it seems to me that sometimes evidence of what at common law is called "strikingly similar facts" may prove no more than tendency, and thus raise considerable risk of unfair prejudice. However such evidence is commonly admitted because of the "striking" nature of the similarity, which is what is said to give the evidence strong probative value. 49 On the other hand, evidence which goes to negate coincidence may be of considerable probative value and involve little risk of unfair prejudice. McHugh J acknowledged at 529 that evidence which is relevant on other than tendency basis might also go to show tendency, and concluded that evidence of that nature does not have to reach such a high standard of probative value as that which goes only to show tendency or propensity. (The terms seem to be used interchangeably in cases confined to the common law.) Although his Honour was speaking of the position at common law it seems to me that the Evidence Act requires a similar approach. Evidence which shows tendency but which is not tendered for that purpose may be relevant because it tends to negate coincidence and may be tendered for the latter purpose only. In that case it will fall outside s 97. It will not be tendency evidence for the purposes of the Evidence Act, because although it is evidence which has the effect of showing tendency, it is not tendered for that purpose but for the purpose of negating coincidence. 50 If evidence of "related events" is tendered for the purpose of negating coincidence, the high standard set by s 101 must nevertheless be applied. If the evidence negating coincidence is also capable of showing tendency, then the jury must be warned that they must not treat it as evidence of tendency and must not indulge in reasoning based on tendency. 51 McHugh J in Pfennig at 528 pointed out that there is an incongruity between weighing up probative value, which goes to proof of an issue, against prejudicial effect, which goes to the fairness of a trial, and that what a trial judge is required to do is to make a value judgment and not a mathematical calculation, so that the tendency evidence will be allowed only if "fair minded people think that the public interest in adducing all the relevant evidence of guilt must have priority over the risk of an unfair trial". 52 In my view, it is inevitable that the nature of such a value judgment means that different judicial minds will differ in the making, and reasonably so. In the present case it is consistent with the reasoning of the trial judge that he considered that the evidence of the swimming incidents made it more likely that the alleged pornographic materials incidents were not simply a coincidence and, or alternatively, that evidence of the pornographic materials incidents made it more likely that the alleged swimming incidents were likewise not simply a coincidence. If that is how his Honour approached it, I would agree with him, allowing that others might reasonably disagree. The important thing is that in making such a judgment his Honour has not been shown to be in error. 53 Returning to the application of Pfennig and Hoch, my view is that the decision in neither case governs completely a question of admissibility of evidence which is subject to the Evidence Act. There is nothing in the Evidence Act that says that for the purpose of deciding pursuant to s 101 whether probative value substantially outweighs likely prejudice, the trial judge must be convinced beyond reasonable doubt as a matter of fact that, if the challenged evidence is accepted, there is no reasonable hypothesis consistent with innocence. The dissenting judgment of McHugh J in Pfennig at 530-532 provides strong reasons for not reading that implication into the Evidence Act. Furthermore, whilst it is true that tendency evidence under s 97, and evidence subject to the coincidence rule under s 98 is circumstantial evidence, it is now well established that not every item in the circumstantial evidence chain which goes to prove guilt must itself be proved beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573. It would be strange if a judge was required to find a fact established beyond reasonable doubt for the purpose of admissibility when the jury might take the same fact into consideration for the purpose of guilt even when it had not been proved to that standard. 54 Nor, in my view, is there anything in the Evidence Act that provides for what is believed to be the effect of the decision in Hoch, namely that where several complainants make accusation of separate offences of a sexual nature against the same accused, their evidence is not admissible unless the trial judge is satisfied beyond reasonable doubt that there is no possibility of concoction on the part of the complainants. 55 I would add that this gloss that appears to have been placed on Hoch leads in practice to a presumption that complaints by several complainants are presumed to be concocted unless the trial judge is convinced beyond reasonable doubt, as a matter of fact, that the evidence, if accepted, proves the accused guilty. It would be surprising if the common law had developed to give rise to such a startling proposition. It is certain that there is no such provision in the Evidence Act. 56 As in my view the evidence was not tendered as tendency evidence and was not evidence of "related events" it follows, that his Honour set too high a barrier for the cross-admissibility of the evidence of the swimming incidents and the pornographic material incidents. However, his Honour having found that the evidence overcame that barrier, the appellant cannot be heard to complain that his Honour fell into appellable error. Further, having seen and heard the witnesses on the voir dire his Honour found that their evidence was clear and compelling. There was therefore a firm basis for his Honour's ruling that the probative effect of the evidence substantially outweighed the danger of likely prejudicial effect. I do not see any basis on which it is appropriate for this Court to interfere with that ruling. 57 I should acknowledge that my own view appears to conflict with two decisions in New South Wales. 58 In R v Locke (unreported, New South Wales Supreme Court, 25 March 1997), Hunt CJ at CL said at 12 that, even where evidence has significant probative value, it still has to pass the test posed by s 101 of substantially outweighing the prejudicial effect it would have on the accused. That, according to Hunt CJ at CL, was the exercise discussed by the High Court in Pfennig in which it was said that, in considering the admissibility of coincidence evidence (and not just the exercise of discretion to exclude), the trial judge must ask whether there is a rational (meaning "reasonable") view of the similar fact evidence which is consistent with innocence, and that only if there is no such view available can a conclusion safely be reached that the probative force of the evidence outweighs its prejudicial effect. Such a high test of admissibility was required, because the prejudicial effect of tendency evidence (sic) is that "the ordinary person naturally thinks that a person who has an established propensity whenever a particular opportunity arises will therefore have yielded to that propensity in the circumstances of the particular case," a principle which Hunt CJ at CL took to be laid down by the High Court in Pfennig at CLR 482-3 and 528. So expressed, the principle appears to attribute to the individual trial judge a fact-finding capacity naturally lacking in a group of twelve ordinary persons, again a principle which is at odds with the long held assumptions and values of the criminal justice system. 59 In Foley v R (unreported, NSW Court of Criminal Appeal, 5 June 1997) evidence of other acts of a sexual nature were tendered at trial in order to prove "guilty passion" directed towards the complainant. On appeal the point was taken that the evidence was tendency evidence under s 97. Stein JA said that under s 101 "tendency evidence (if that is what the evidence was in this case) cannot be used unless its probative value substantially outweighs any prejudicial effect: see Pfennig v R and unless there is no rational or reasonable view of the tendency evidence which is consistent with the innocence of the accused: see R v Locke." (emphasis added). 60 In my respectful opinion it should be observed that s 101 does not provide the double test as suggested by Stein JA in Foley and that Hunt CJ at CL did not hold to that effect in Locke. For my own reading of what was said in Pfennig, that case was concerned with similar fact evidence at common law (which for the purpose of the case appears to have been equated with "propensity" evidence at common law). The omission from the Evidence Act of any reference to similar facts as a basis of admissibility of tendency evidence under s 97 and s 101 suggests that this area of the common law was intended to be avoided. Moreover, the coincidence rule section, s 98, does not govern the admissibility of all evidence which tends to negate coincidence. The section applies only to evidence of "related events" which the prosecution seeks to rely upon to prove a relevant fact. "Related events" according to s 98(2) must be "substantially and relevantly similar" and the circumstances in which they occurred must be "substantially similar". Otherwise such events are not caught by s 98. The view of the textwriters eg. Bellamy and Meibusch, Commonwealth Evidence Law (2nd ed) par 98.1 supported by the Report of the Australian Law Reform Commission (ALRC 26, pars 810 – 816) is that Part 3.6 which includes s 97 and s 98 is directed at similar fact evidence as it was regarded before the Evidence Act. Since the concept of similar fact evidence in criminal cases derived essentially from the perceived danger of juries viewing it as proof of tendency, which is dealt with under s 97 not s 98, the view is not very helpful. Moreover, as Bellamy and Meibusch observe at par 98.8, s 98 does not require that evidence adduced for coincidence reasoning purposes be evidence of similar facts (or evidence of "related events") for the purpose of admissibility. If it is not, s 98 does not apply. In the present case the trial judge appears to have considered that the swimming incidents and the pornographic materials incidents were "related events" and thus had to satisfy s 101. The possibility that they might not be "related events" as defined by s 98(2) and therefore outside the restrictions of s 101 does not appear to have been considered. The less strict requirements of s 137 would have applied. 61 Since it appears that Higgins J applied too stringent a test for allowing the evidence as to the swimming incidents on the one hand and the pornographic materials incidents on the other hand as cross-admissible, it is likely that the application of the less stringent test under s 137 would have led to the same result. In any event his Honour went on to express himself in the language of s 101. After applying the finding that the evidence satisfied both the no reasonable hypothesis test of Pfennig and the rebuttal of the presumption of concoction of Hoch, his Honour said that there was nothing in the complaints or in their terms, even granted the considerable delay, that would support the view that the evidence was lacking in significant probative value. Clearly his Honour was of the further view that the significant probative value substantially outweighed the likely prejudice. It is sometimes overlooked that the greater the probative weight the greater the prejudice, in a sense. What is in issue is not prejudice in the general sense, but unfair prejudice. No potential unfairness is demonstrated, in my view, which was not to be dealt with in directions. In this respect it must be remembered that his Honour had the advantage of seeing and hearing the complainants give evidence over an extensive voir dire hearing and again in the trial. The assessment of probative value, as distinct from relevance, is, at least sometimes, better left to the judge who sees and hears the witnesses. His Honour's view as to the persuasiveness of the prosecution case and the probative value of the evidence of the three complainants in support of it deserves respect of a positive and not token kind. Whilst there may be a substantial retreat at the present time from the once generally held view that a judge or magistrate who sees and hears witnesses always has an advantage over an appeal court, this is surely a case in which the advantage cannot be denied. 62 Further, the directions to the jury had to include a general direction that it was for the jury to decide whether they accepted or rejected any part of the evidence, and a particular direction that they could use evidence of the swimming incidents for the purpose of proving the pornographic materials incidents and vice versa only if they found that evidence acceptable. In my view, the directions were sufficient on both aspects. Further, the jury's verdicts indicate that the jury did not accept, to the certainty necessary to establish guilt, the evidence of the swimming incidents. In coming to that conclusion consistently with the directions, they would have had to have considered the evidence of the pornographic materials incidents. It is impossible to know what weight they put on the evidence of the latter for the purpose of proving the former but that is of no practical significance because they returned a verdict of not guilty on the former. The possibility that they used the evidence of the swimming incidents in some unacceptable way to support a finding of guilt on the pornographic materials incidents is so remote as to be of no significance. I repeat that not every fact of which evidence is given has to be proved beyond reasonable doubt. The theoretical possibility of the evidence of the swimming incidents being used as some illegitimate but undiscovered way to support the verdict of guilty on the pornographic materials incidents does not lead to a conclusion, as I see it, that the accused was denied a fair trial or a fair chance of acquittal or that the verdicts were somehow unsafe or unsatisfactory. 63 I would dismiss the appeal. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. Associate: Dated: 23 November 2001 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 65 of 2000 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: W APPELLANT AND: THE QUEEN RESPONDENT JUDGES: MILES, WHITLAM and MADGWICK JJ DATE: 23 NOVEMBER 2001 PLACE: CANBERRA REASONS FOR JUDGMENT Whitlam j: 64 The background to this appeal is set out in Miles J's reasons for judgment. However, as I have reached the view that the appellant was entitled to be tried by a judge alone, it is necessary for my purposes to record a little more of the relevant history in the court below touching on this issue and to note certain other provisions of the Supreme Court Act 1933 (ACT). 65 Notwithstanding the ruling given by Higgins J on 28 August 2000 that the appellant did not "now have … the right to elect for trial by judge alone", the appellant purported to make such an election. On the morning of 18 September 2000 the appellant filed in the Supreme Court Registry a notice electing to undergo such a trial. The notice contained a certificate signed by Mr O'Keeffe that he had "provided advice to the accused concerning his election for trial by judge alone or before a jury" and, below that certificate, a signed statement by the appellant that he had "freely made this election". Later that morning when the Court sat and the indictment was presented by the DPP, a copy of that notice was handed up to Higgins J. His Honour observed that the election was "too late" and that "it does not specify the matters in respect of which the accused elects for trial by judge alone". The matter was then stood over to 2.15 pm in the afternoon, at which time the appellant was arraigned on the indictment which had been presented that morning. He entered not guilty pleas to all counts, and Higgins J empanelled a jury for his trial. 66 Part 7 (ss 68-68C) of the Supreme Court Act is headed "Trial on Indictment". The prosecution of indictable offences is dealt with in s 68, which provides: "(1) Subject to subsection (2), an indictable offence triable before the court shall be prosecuted by information in the name of the Attorney-General or of such other person as the Attorney-General, by instrument in writing, appoints for the purposes of this subsection. (2) The Attorney-General may file an information under subsection (1) without examination or commitment for trial of the accused person. (3) Upon an information being filed without examination or commitment for trial, the court may- (a) cause a summons to be issued to the accused person to appear at the time and place specified in the summons and there to answer the charge specified in the information; or (b) issue a warrant for the arrest of the accused person and hold him or her in custody or admit him or her to bail. (4) Where a person has been committed for trial upon a charge for an indictable offence triable before the court, the information against the person may include, either in substitution for, or in addition to, a count charging the offence for which the person was committed, a count founded on a fact or evidence disclosed in the course of the committal proceedings. (5) Subsection (4) does not authorise the inclusion of more than 1 count in the same information unless those counts are such as may lawfully be joined in a single information. (6) Where a person is under commitment upon a charge of an indictable offence triable before the court, the Attorney-General, or such other person as the Attorney-General, by instrument, appoints for the purposes of this subsection, may decline to proceed further in the prosecution and, if the accused person is in custody, may, by warrant, direct the discharge of the accused person from custody, and the accused person shall be discharged accordingly." 67 Sections 68A and 68B are reproduced above in Miles J's reasons. The expression "criminal proceedings" used in those sections is important. It is defined in s 2 of that Act as follows: "criminal proceedings means proceedings in the court for the prosecution of a person on indictment." That definition was also inserted by the Supreme Court (Amendment) Act 1993. 68 It is common ground that the DPP was authorized to prosecute in the Supreme Court the offences which were the subject of the indictment. Section 68 makes it clear that such a prosecution is instituted by filing an "information" which has the status of an indictment. Until such a document is filed, it cannot be said that there are "proceedings in the court for the prosecution of a person on indictment". (Emphasis supplied.) A person may be under commitment upon a charge of an indictable offence, but that is not the same thing as being indicted. In respect of such a person, s 68(6) sanctions the use of the word "prosecution", but the phrase "prosecution on indictment" is not applicable to proceedings involving such a person at that stage. Sections 68A and 68B only come into play once an indictment is filed. Prior to that time an accused person cannot know the offences upon which he or she is to be arraigned. 69 A person under commitment may be "an accused person" under s 68(6), but he or she will not be an "accused person in criminal proceedings" within the meaning of s 68B(1) until an indictment has been filed. It cannot be imagined that the legislature would ever have intended such a person could be expected to make an election before it is known whether there is more than one accused and what are the charges. The requirements of subpars (b)(i) and (ii) could be rendered a meaningless charade. So too, the very object of s 68B, namely, to permit an election as to mode of trial as of right where there is only one accused person, would, in my view, be defeated if par (c) of s 68B(1) were construed so as to permit allocation of a date for trial before an indictment is filed. 70 The Supreme Court's power to allocate a date for trial is thus constrained. On 3 July 2000 Higgins J was not authorized to allocate a date for the purposes of s 68B(1)(c), and he erred in doing so. Had his Honour adverted to the possibility of an election for trial by judge alone, it is unlikely that he would have made such an error in circumstances where the solicitor appearing at short notice made it clear he was not yet retained by the accused person. 71 The relevant power to allocate a date was only enlivened when the indictment was filed in court on the morning of 18 September 2000. The order of Higgins J then made, standing the matter over to 2.15pm that afternoon, may be accepted as the first allocation of a date for trial for the purposes of s 68B(1)(c). However, before that order was made, the appellant had made his election in writing and filed it in the Registry. Fortuitously he was able to do so because he knew the charges he would face as a result of his Honour's earlier ruling on 15 September 2000. 72 The DPP relied on three authorities in support of his contention that par (c) of s 68B(1) was not complied with in the present case. The first was the South Australian case of Garrett (1988) 40 A Crim R 213, in which the question arose whether the accused had elected to be tried by judge alone in accordance with rules of court made under the Juries Act 1927 (SA). Under those rules the time for the accused's election was fixed by reference to "his first arraignment on the charge which is the subject of the election". The Court of Criminal Appeal held that, where a person was arraigned on a fresh indictment which included charges on which he had been previously arraigned when they were contained in an earlier indictment that had not been tried, the occasion for election prescribed by the rules of court had passed. This holding throws no light on the true construction of s 68B(1)(c). 73 The two other cases, both from New South Wales, are also of no direct assistance on the interpretation of that provision. R v Perry (1993) 29 NSWLR 589 and R v Coles (1993) 31 NSWLR 550 concerned the construction of s 32(4) of the Criminal Procedure Act 1986 (NSW), which required an election for trial by judge alone to "be made before the date fixed for the person's trial". What is of interest, however, is how a trial date came to be fixed under Part 3 of that Act, which was headed "Listing". A public servant, the Criminal Listing Director, was given the function, subject to the regulations, of making arrangements for the listing of "criminal proceedings". That expression was defined for the purposes of Part 3 to cover "proceedings relating to the trial of a person before the Supreme Court or District Court". (Emphasis supplied.) The Criminal Procedure Regulation 1987 (NSW) contained in its own Part 3, also headed "Listing", a strict statutory regime for the provision of a draft of the indictment proposed to be presented in the proceedings. A trial date was not fixed until a draft indictment had been forwarded to an accused person. Part 9 (ss 30-33) of the Criminal Procedure Act was headed "Trial by Jury on Indictment". Like ss 68A and 68B in the present case, ss 31 and 32 of that Act applied to "criminal proceedings", which expression was defined for the purposes of Part 9 by s 30(1) as "proceedings for the prosecution of persons on indictment". It may be noted that this definition is generic as the use of the plural "persons" indicates. On the other hand, the definition in s 2 of the Supreme Court Act, with which this case is concerned, is specific to proceedings "in the court" for the prosecution of "a person". In New South Wales the safeguards were provided by a specific statutory regime for the fixing of trial dates. In the ACT the effect of s 68 of the Supreme Court Act is, in my opinion, that an indictment must be filed before criminal proceedings are on foot so as to permit the first allocation of a trial date. A contrary construction of s 68B(1)(c) would be potentially productive of great unfairness and injustice. 74 The election made by the appellant in the present case was valid and effective. There is no need for his election to specify that it is made in respect of all the counts in the indictment. Section 68B(1)(d) only applies where there is more than one accused. That is not this case. Moreover, where it is applicable, subpar (ii) operates of its own force if each accused person makes an election. So far as another detail of the notice of election is concerned, it is true that Mr O'Keeffe's certificate does not state the matter specified in subpar (b)(ii) of s 68B(1), but the appellant himself made a signed statement to that effect below his solicitor's certificate on the very notice of election. This discrepancy is not fatal: R v Birlut (1995) 39 NSWLR 1 per Kirby J at 5-8 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391. 75 It follows that, when he was arraigned on the afternoon of 18 September 2000 and entered his plea, the appellant was entitled to be tried by a judge alone. In those circumstances his trial by jury means that the trial process "miscarried" just as surely as if a trial on indictment of offences against Commonwealth law was not held in accordance with the command in s 80 of the Constitution: Cheng v The Queen (2000) 74 ALJR 1482 at 1487-1488. The mode of trial involves "a question of jurisdiction": Coles per Wood J at 551. In this case the jury had no jurisdiction and the trial was a nullity. It is therefore unnecessary to consider whether an error in the conduct of the proceeding caused a substantial miscarriage of justice. The convictions must accordingly be quashed. 76 The Notice to Practitioners dated 4 June 1997 (which has since been superseded) was an obviously sensible way of seeking to give an accused person the opportunity to make an election under s 68B(1) of the Supreme Court Act. However, if paragraph 5 of the Notice can be read as permitting a date for trial to be allocated before an indictment is filed, it was wrong. In my opinion, s 68B confers a "right" to elect trial by jury. (That is how King CJ described the effect of the equivalent provision in Garrett at 219-220.) When the legislature creates such a right, it cannot be infringed by the administrative arrangements made within a court for the listing of cases. Nonetheless, the prosecuting authorities and the Supreme Court's Registry staff should be able to adjust existing arrangements for provisional listing of trials so as to bring them into line with the statutory requirement that an indictment be filed before a trial date is allocated. 77 It follows from the opinion I have reached that I do not find it necessary to deal with the difficult questions posed by the other grounds of appeal on the joinder of charges and admissibility of evidence. The DPP did not ask for a venire de novo order if the appellant succeeded on his s 68B point. Nonetheless, in the unusual circumstances of this case, I agree with Madgwick J that it is appropriate to order a new trial of the charges in respect of which the jury returned guilty verdicts. I certify that paragraphs 64 to 77 are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 23 November 2001 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 65 of 2000 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: W APPELLANT AND: THE QUEEN RESPONDENT JUDGES: MILES, WHITLAM and MADGWICK JJ DATE: 23 NOVEMBER 2001 PLACE: CANBERRA REASONS FOR JUDGMENT MADGWICK J: Right to elect trial by judge alone and supposed inconsistency 78 I agree with Whitlam J's conclusion, and his reasons for it, that the appellant had a statutory right to make an election to be tried by a judge without a jury. The Supreme Court was not free to take listing steps that would stultify any reasonable opportunity for the appellant to exercise that right. This Court should, on that account, order a new trial. 79 I agree with Miles J that the verdicts were not inconsistent. Joinder of counts (i) Preliminary 80 Having regard to the appellant's acquittal on the swimming/beach counts at the hands of a jury, even one without "jurisdiction" as Whitlam J put it, there can be no question of evidence being given on his retrial which would tend to impugn his innocence of the counts of which he has been acquitted. Accordingly, it is tempting not to enter the difficult realm of the asserted impropriety of joinder of the counts which were tried together and the cross-admissibility of evidence, upon which such joinder depended. However, it cannot be safely assumed that this appeal will necessarily end here in the way that Whitlam J and I propose. It is possible that the question of joinder might resurface as a practically important issue, should the DPP seek to appeal. Secondly, Miles J has given detailed reasons on these matters with which, I regret to say, I do not agree. Finally, the matters are of general importance and, as the difference between the various approaches of the learned trial judge, Miles J and myself attests, by no means easy. So I think it will likely be useful if I explain the conclusions I have come to and the reasons for those conclusions. (ii) The course of the matter before the trial judge 81 Although the indictment on which the appellant was tried contained nine counts, involving three complainants, the indictment originally presented had contained 18 counts, involving more counts concerning two of those complainants and other counts concerning a further four complainants. This evidently created some difficulty for his Honour in differentiating and appreciating possible, complex interrelationships between the various charges. 82 At the pre-trial examination of the complainants before Higgins J on the voir dire, the DPP's justification for joinder of the counts was that the evidence in support of the counts exhibited striking similarity. The prosecutor pointed to the following: · each complainant was related to the appellant; · each complainant raised at least one allegation that she had been subjected to an act of indecency in the appellant's shop; · each had been alone in the shop with the appellant when such act occurred; · pornographic material was shown (or offered to be shown) to the three relevant complainants; · all complainants were under the age of 14 years; and · manual touching either of the complainants by the appellant or by them of the appellant at his behest was involved. 83 His Honour, correctly in my view, observed that, apart from the counts as to which the evidence featured allegations of untoward video or movie images, the evidence of other offences did not: "exhibit anything more than a tendency on the part of the accused to commit acts of indecency on or in the presence of girls aged between 8 and 14 years." His Honour noted that to prove such allegations would be "relevant" within the meaning of the Evidence Act 1995 (Cth)to each of the other allegations: it would make each other allegation "the more capable of acceptance". But s 97 (the "tendency rule") and s 98 (the "coincidence rule") of the Evidence Act would render such evidence inadmissible unless the evidence alone or in the context of other evidence had "significant probative value". 84 His Honour continued: "Thus it is not enough to join together matters alleged by several complainants to show that the circumstances alleged by each – or at least those joined together – are strikingly similar. Acts committed against one complainant may be joined to show relationship or guilty passion. But even similar acts alleged against the same complainant must be relevant to the proof of some other fact or issue at the trial. Thus to summarise, there may be two purposes of such evidence. First to prove the occurrence of the event in question, and to do that it is only if the other occasion event is strikingly similar. Or second, to give direct evidence of the accused's conduct towards the other victim. And that does arise in this case in at least two instances. But it is not to be admitted to prove propensity to commit acts of that kind or to invite coincidence reasoning. The difficulty conceptually is that the first of those propositions can only be proved where the inference is indirect, that is A did X to me, so it is more likely that A did X to B by tendency and coincidence reasoning. The Evidence Act provisions permit both kinds of evidence, for present purposes, only if the particular evidence relied upon has significant probative value." His Honour went on to accept that the Evidence Act test of significant probative value was "clearly intended to embrace the rules explained by the High Court in Pfennig [(1995) 182 CLR 461] and Hoch [(1988) 165 CLR 292]". 85 His Honour appears to have concluded that the allegations of movies/videos of animal sex (and in one case "x-rated") were "strikingly similar". It seems likely, although it is not entirely clear, that his Honour had the same view of the "remaining" counts. Evidence on another count concerning MM would be admissible, his Honour said, as "an application of the res gestae rule". 86 His Honour negatived any reasonable hypothesis of a possibility of joint concoction of any of the allegations and considered that the evidence as to the counts thus considered was not "otherwise lacking in significant probative value". 87 The learned trial judge then considered s 137 of the Evidence Act which requires the rejection, in a criminal proceeding, of any evidence "if its probative value is outweighed by the danger of unfair prejudice to the defendant", and shortly concluded that it was not, because the "prejudicial effect is much more capable of being excluded by direction". (iii) Interpolation: s 137 and s 101 88 Section 137, however would only have been relevant to the extent that s 97 and s 98 did not apply, because s 101 provides: "(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 89 It is to be noticed that the s 101 test is much more stringent than that in s 137. Under s 101 the probative value must "substantially outweigh any prejudicial effect it may have", that is, any risk of a prejudicial effect. Under s 137 there must be an actual "danger" of prejudice to the defendant and it is that danger that must outweigh the probative value (nothing turns on the absence of the word "unfair" in s 101: it is clear that the section is concerned with unfair prejudice). Experience under the common law background to the two sections furnishes ample reason for the distinction. 90 Technically, therefore, it can be seen that, on the view the learned trial judge took, he appears to have applied a mistaken test of admissibility. However, given the way that his Honour dealt with the matter, little turns on that alone. (iv) The resolution of the joinder issues at first instance 91 The application of his Honour's decision required the re-checking of the voir dire transcript. The next morning, on 15 September 2000 his Honour indicated finally which counts would be severed from the draft indictment. On the morning of 18 September 2000, the DPP formally presented in Court an indictment containing 18 counts in the form of the draft indictment. His Honour made an order severing nine counts in that indictment. The DPP then presented a fresh indictment containing the nine counts upon which the appellant was arraigned later in the afternoon of that same day. 92 In the result: · three counts (1 – 3) concerned SA; two (counts 1 and 2) involved swimming-related incidents and one (count 3) involved pornographic materials; · five counts (4 – 8) concerned MM; two (counts 4 and 5) involved swimming-related incidents and three (counts 6 – 8) involved pornographic materials; and · one count (count 9) concerned DA; it involved mention of an "X-rated" video. 93 None of the swimming-related counts featured any evidence concerning the display of pornographic materials. (v) Joinder dependant on cross-admissibility 94 Section 370 of the Crimes Act 1900 (ACT) provides: "In every case counts may be inserted in the same indictment, against the same person, for any number of distinct offences of the same kind, not exceeding 3, committed against the same person if no more than 6 months have elapsed between the first and last of those offences." 95 However, this section is not to be taken as limiting the Crown in cases that do not fall within its terms: Johnson (unreported, NSWCCA, 23/7/90). In general, counts may be joined in an indictment if they "form or are part of a series of offences of the same or a similar character" and, in addition, "some sufficient nexus exists between the counts": De Jesus (1986) 68 ALR 1. 96 Section 365(2) of the Crimes Act provides: "Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence by reason of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of such indictment." In a case such as this, if evidence on one count is inadmissible on others an application for separate trials should, at least ordinarily, be granted: Sutton v The Queen (1984) 152 CLR 528 at 531 and 541-2; De Jesus at 4-5, 12, 14 and 16; Hoch at 294; KRM v The Queen (2001) 75 ALJR 550 at 558, para 38. The real question here is whether the evidence on the various counts condemning each complainant was cross-admissible in relation to the counts concerning the other complainants. (vi) "Res gestae" 97 I take the learned trial judge's reference to a "res gestae" rule, to mean, in the context, an inextricable interlinking of events in a single transaction. However, such a basis did not, with respect, exist as to any of the two counts, either as to time or as to the nature of the events. To the extent that his Honour may have relied, in the circumstances of this case, on any such factor as adding anything to the weight of any evidence that was not caught by the relevance rule, this would have been erroneous. Having regard to the scheme of the Evidence Act it was not, as Miles J points out, necessary to look for admissibility in any such common law doctrine. (vii) Conclusions 98 In my view, the only way in which the evidence was cross-admissible as between the counts involving different complainants was if it fell within ss 97 or 98. An allegation that at some point A behaved indecently to X is, at least in circumstances such as the present, only relevant to a charge that A also behaved indecently to Y if the prosecution asserts that the evidence about X shows a tendency for A to behave indecently, or if the nature of the behaviour alleged by both X and Y indicates, by negativing likely coincidence, that the behaviour did occur. That is, the relevance depends upon tendency being proven or coincidence being negated. Section 97 and/or s 98 and s 101 are necessarily involved. Some light has been shed on the "significant probative value" test by Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at paras 72 to 75 and the authorities there mentioned. Weight and respect must be given to the learned trial judge's apparently contrary opinion, as is appropriate in a matter where quasi-discretionary judgments are involved: Jacara at 69. Nevertheless, in my opinion, the only evidence of acts against one complainant that might have been regarded as having "significant" probative value in relation to the allegations of another complainant, was that concerning the appellant's showing or offering to show two young girls pornographic videos or films depicting women engaging in sexual activities with animals. (I agree with his Honour, in this regard, that it might reasonably have been inferred that the "X-rated video" the appellant offered to show MM was of a like kind with those shown to the sisters). It is fair to say that this evidence was "strikingly similar", although I agree with Miles J that it is no longer necessary, or even necessarily appropriate, to apply the tests of the common law to such evidence. It is enough to say that it is very unlikely, unless the complainants concocted this evidence, that these events did not occur. That is to say, that evidence was either or both strong tendency evidence within the contemplation of s 97 or powerful coincidence evidence within the contemplation of s 98. 99 In my view, his Honour was correct to hold that, even so, the evidence must "hav[e] the quality that it is not reasonably explicable on the basis of concoction": Hoch at 297. That is not because, as a matter of continuation of the common law, Hoch would apply, but because the prospect of concoction could not stand with the notions that the evidence must have "significant" probative value under s 97 and/or s 98 and must "substantially" outweigh "any" prejudicial effect it "may" have, because of the terms of s 101: see R v OGD (No 2) (2000) 50 NSWLR 433. Nevertheless, there was satisfactory evidence that the complainants lacked a combination of "sufficient relationship to each other and … opportunity and motive for concoction" (emphasis added): OGD. Among other things, the sisters were not close to each other nor was either of them close to DA. 100 Finally, as to the pornographic images counts, in my opinion, the strength of this evidence should be regarded as "substantially outweigh[ing] any prejudicial effect it may have on the defendant". (As appears below, McHugh J in Pfenning exposed the inappositeness of the metaphor inherent in the notion of "outweighing"). 101 The Evidence Act in these areas deliberately eschewed the particular, mandatory or near-mandatory rules for the admission or rejection of tendency or coincidence evidence developed by the Australian common law. It would be wrong for the courts, as it were, to seek to re-establish those rules under cover of attempting to develop general guidelines to assist trial judges in the near discretionary judgments called for by ss 97, 98 and 101. It is, however, another and an unwarranted thing to say that trial judges cannot usefully recall the experience and need for caution that gave rise to those now-discarded rules of the common law: OGD. 102 In Pfennig at 528-31, McHugh J attempted a re-statement of the common law. His Honour did not carry a majority of the High Court with him. Nevertheless, in my respectful opinion, the experience and rational considerations that underlay the common law, however formulated, were clearly expounded by his Honour. There is a great deal to be said for now using McHugh J's approach as a basis for making the value judgments called for by s 97(1)(b), s 98(1)(b) and s 101, and by s 137, in the area of "similar fact" evidence, whether in its tendency, coincidence or other forms of relevance. Although his Honour's remarks must be taken not to represent the pre-existing common law, that now furnishes no obstacle to resorting to them for guidance. Accordingly, I venture to include the following lengthy quotation from his Honour's judgment: "…[U]pon what basis should [tendency] reasoning be admitted? Plainly, it cannot be admitted merely because it has probative or even strong probative value. The risk of an unfair trial through the use of [tendency] reasoning is too great to allow such a low threshold of admissibility. Consequently, this Court has insisted that as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect … Nevertheless, the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term "outweigh" suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. … In my view, evidence that discloses the criminal or discreditable [tendency] of the accused is admitted … because the interests of justice … require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced. If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. … Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. If the evidence does no more than prove a mere [tendency] to commit crimes of the kind in question, it will never have sufficient probative force to make it admissible. If it does have the required degree of probative force, it will be because it is relevant for a reason other than proof of [tendency] or because it colours one's perception of the other evidence to such an extent that it can be confidently inferred that the accused gave effect to the [tendency] on the occasion in question. Evidence of a striking similarity between the commission of the crime and the method used by the accused will frequently be sufficient to prove that inference. But striking similarity is not the exclusive test. The circumstantial force of the other evidence together with the [tendency] evidence may prove the inference. … For [tendency] evidence to be admissible, however, it will need to have "specific probative value in relation to the crime charged" … Even then, [tendency] evidence will not be admitted if the prejudicial value of the evidence makes it contrary to the interests of justice to admit it. If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal [tendency] may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused's guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal [tendency] is exceptional. Further, as Lord Cross pointed out in Boardman … while there remains a general rule against the admission of other acts of misconduct, "the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence". Thus, where the prosecution case depends entirely on [tendency] reasoning … the evidence will need to be very cogent to be admitted. When [tendency] reasoning is relied upon, the danger is high that the tribunal will convict simply because of the accused's [tendency] instead of using it as an evidentiary factor. Consequently, in such a case the evidence will need to be so cogent that, when related to the other evidence, there is no rational explanation of the prosecution case that is consistent with the innocence of the accused. However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable [tendency] of the accused, must always meet this high standard. In the relationship cases, for example, [tendency] reasoning may simply reinforce or explain other evidence that directly implicates the accused. In such cases, it would be contrary to both the practice of the criminal courts and the interests of justice to use the no rational explanation test as the condition of admissibility of such evidence. In other cases, particularly those where the evidence is admissible for a reason other than the accused's [tendency], the risk of prejudice may be so small that justice both to the accused and to the prosecution can be done by admitting evidence that is probative of guilt and warning the jury that they must not use the evidence in the way that is likely to create prejudice. It follows that in each case where evidence is tendered that discloses, directly or indirectly, the criminal [tendencies] of the accused, it is necessary to identify the nature of the risk, if any, to which the admission of the evidence gives rise. In similar fact cases, for example, evidence is often admitted for the reason that the association of the accused with so many similar deaths, injuries or losses, as the case may be, makes it highly improbable that there is any innocent explanation for the accused's involvement in the matter … In these cases, the [tendency] of the accused will usually only be established by the verdict. … Makin is the classic example. It was a case involving objective improbability reasoning, not [tendency] reasoning … The [tendency] of the accused to kill the babies was only established by the conclusion that it was probable to the point of certainty that so many babies including the baby the subject of the indictment could not have died by accident. Accordingly, they must have been murdered by the Makins. It was the verdict that established the accused's [tendency]. … The risk of prejudice in [such] true similar fact cases is not from [tendency] reasoning but from the fact, as Murphy J pointed out in Perry … that "(c)ommon assumptions about improbability of sequences are often wrong." A jury may wrongly give the similar fact evidence far more weight than it deserves. In other cases involving similar facts, however, the accused may have admitted the facts of a similar incident or the facts of a similar incident may clearly point to wrongdoing on the part of the accused in relation to that incident. In such cases, there is a risk that, instead of relying on probability reasoning, the jury will simply rely on the [tendency] of the accused as revealed by the incident that is admitted or proved. It follows that the nature of the prejudice and the degree of risk of an unfair trial will always depend on the facts of each case. It also follows that I am unable to agree … that evidence that discloses the criminal [tendency] of the accused cannot be admitted unless that evidence together with the other evidence denies any rational explanation of the accused's conduct that is consistent with his or her innocence. That rule will be generally applicable when the Crown is relying on the accused's criminal [tendency] because the risk of prejudice from [tendency] reasoning is so high. But in the relationship cases, for example, where evidence of [tendency] is relied on as confirmatory or explanatory of evidence implicating the accused, I do not think that such a high standard is either required or appropriate. Similarly, in cases where the accused's [tendency] is disclosed, but is not the basis of any reasoning process, a standard of proof lower than the no rational explanation standard may suffice for admission." 103 The evidence could well have an unfairly prejudicial effect on the defendant, and that should be squarely faced. However, the weight of the evidence is to my mind such that the injustice to the prosecution in not admitting it clearly outweighs the risk of injustice to the accused if it were admitted. The very high likelihood is that a tribunal of fact would be profoundly, but entirely rationally and appropriately, affected by the evidence. Against that, any risk of merely irrational affectation by the evidence was in truth slight. Alternatively, the evidence was simply of such a power that the interests of justice required its admission notwithstanding the risk of prejudice to the appellant. 104 However, such allegations affected only the third count and the sixth to ninth counts. If there were to be a joint trial of the charges involving such allegations, none of the swimming charges should in my opinion have been tried with them. The swimming counts as to any one or more complainants did not in my opinion have "significant" probative value in relation to any count concerning another complainant. They did not display any strong unifying theme such as truly "striking similarity". Nor did they show anything beyond a tendency to indecency with the young girls. The evidence of indecency with one girl would plainly tend to be unfairly prejudicial to the calm trial of a charge of indecency against another girl or girls, especially if, in the beach locales involved, there was some broad though unremarkable similarity in the events and circumstances alleged. Nor, in my opinion, could it be said that the probative value of the evidence "substantially outweighed" any prejudicial effect it may have on the defendant. The real question in that regard is whether the interests of justice required the admission of the evidence. In my view, those interests clearly did not so require. That is so whether the general exclusionary rule expressed in s 137 is considered or whether the more stringent approach required by s 101 in the cases of tendency (s 97) and coincidence (s 98) evidence is applied. None of the evidence on the swimming charges was, in my opinion, admissible in relation to the count concerning DA. Neither sister's swimming allegations were admissible to prove anything about the other sister's swimming-related or other allegations. 105 In my respectful opinion, the learned trial judge fell into error in permitting the counts to be tried together, as he did. The only counts concerning the three complainants that should have been tried together were those involving the pornographic video/film evidence. Although the counts concerning each complainant might have been tried together if there had been separate trials as to each complainant's allegation, the swimming/beach evidence as to one complainant was not admissible, on my understanding and application of ss 56, 97, 98, 101 and 137 of the Evidence Act in relation to the counts concerning any other complainant. (viii) A miscarriage of justice? 106 That, however, is not necessarily the end of the matter. In Chamberlain v The Queen [No 2] (1984) 153 CLR 521 it was held that, although the appellate powers of this court are not expressed in similar form to those conferred on State courts of criminal appeal, the court "has the power and duty [to intercede] where a miscarriage of justice has occurred …", per Gibbs CJ and Mason J at 532. See also R v Tran (2000) 180 ALR 62, 75 at paras 76 and 77. 107 Regrettably, I feel bound to conclude (after some vacillation on the matter) that, despite the obvious strength of the Crown case and the jury's equally obvious care and good sense in preferring to convict only where there was clear evidence with some degree of corroboration, this error cannot be treated as legally immaterial to the outcome. Despite the acquittals on the swimming related charges, the jury nevertheless may well have held the view that those charges or some of them were proven on the probabilities, but not beyond reasonable doubt. It is a real possibility, one that cannot be dismissed, that the jury consciously or unconsciously took such a probability into account, in assessing the remaining charges. No direction was given to the jury that might have prevented it from so reasoning, notwithstanding that such a warning was not sought. It is possible, for example, that because there was much evidence before the jury of extraneous sexual misconduct by the appellant with two of the three complainants when they were young girls, the jury may have subjected the evidence on one or more of the four counts that, in my opinion, could properly have been tried together, to a less rigorous scrutiny than might otherwise have been the case. I do not overlook that, in consequence of the appellant's election not to give evidence, there was no evidence to contradict the accounts given by the complainants, who, in his Honour's view, were persuasive witnesses, or that it is difficult not to feel that, despite all, "the jury got it right". Nevertheless, the chance that the appellant might have secured an acquittal on one or more of the counts of which he was convicted cannot, in my opinion, be dismissed as unreal even though such chance can fairly be said to be slight. It cannot be said that the appellant has not been deprived of a chance of acquittal that was fairly open to him. 108 The directions given by his Honour cannot be regarded, in my view, as having negatived a real chance that the jury impermissibly had regard to inadmissible material. The directions are further discussed below. 109 The appellant would accordingly, on this account, be entitled to a new trial on the charges of which he was convicted. Possible Misdirections 110 For like reasons as in the matter of joinder of counts, I consider that I should express my views. 111 His Honour relevantly told the jury that they needed to consider guilt separately and might find some counts proven but not others. He continued: "You may not draw a conclusion that the accused must be guilty of count A because another witness says that the accused was engaged in not dissimilar or roughly similar conduct with them … Now, the reason for that is because that would be to say, "Well, it would have to be a coincidence in order that two complaints could be made about similar types of misconduct. You may not reason that way, in other words, you cannot [say] that simply because there are 3 sets of accusations in this case, any one of them is more likely to be true. You have to look at each of them separately and decide whether you are satisfied or not satisfied on the evidence that that accusation is both true and has been accurately recounted. The other is propensity. Now, what that says is that because there are, say, 5 accusations in one case against the accused that therefore he has a propensity to behave in that particular type of way so it is therefore much more likely that he did it on another occasion. Using an analogy with, say, a thief that simply because a person has a record for theft makes it more likely that they have committed theft on a subsequent occasion. It doesn't because you still have to concentrate on whether they committed theft on that occasion as the occasion charged. So you cannot again use the mere fact that there are 9 separate accusations each alleging sexual misconduct to enable you to say, "Well, he must have a propensity to do that, therefore, he must be guilty of any particular one of them", you have to look at each of them." 112 However, these directions were, in my respectful opinion, not adequate to deal with the matter. 113 What the legally available evidence actually was in relation to each count should have been identified for the jury. In particular, the pornographic film/video evidence either was:- · of significant probative value and such that its probative value substantially outweighed its likely considerable prejudicial effect on the appellant, cf. Evidence Act s 98 and s 101, and therefore admissible as coincidence evidence to prove that the showing or offer to show such material occurred in a context of otherwise indecent behaviour; or · it was not admissible. His Honour evidently held the view, with which I agree, that it was so admissible. As such, it should have been identified as available evidence on each other count of which it was also a feature, and the limits of its usefulness explained. It appears, however, that the jury did not misapply this evidence and, as to it, the lack of a suitable direction did not issue in any material disadvantage, that is, any miscarriage of justice for the appellant. 114 The same cannot, however, be said of the evidence as to the swimming-related counts, even though the appellant was acquitted of them. In the first place, the jury should have been told in terms that the evidence as to each of the swimming-related counts, whether accepted by them in any degree or not, had no bearing on any of the counts relating to the other complainants. 115 Secondly, even in relation to the possible use of the swimming-related evidence of each of the Brown sisters in a consideration of the other count or counts relating to herself to show the appellant's "relationship" with her or "the essential background", questions of admissibility arose: see the various judgments in Gipp v The Queen (1998) 194 CLR 106 at 111-113, 132-3, 155-157, 166-169 and the provisions of the Evidence Act earlier discussed. and, perhaps, s 137. A partial resolution of the difficulties was essayed in Conway v The Queen (2000) 98 FCR 204 at 229 ff, esp. 232-4. See also G Flatman QC and Dr M Bagaric, Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions (2001) 75 ALJ 190. In my view, the resolution should be made having regard to the remarks of McHugh J in Pfennig, as I have explained. In any case, these questions needed to be resolved and their resolution reflected in appropriate directions. At the very least, it is clear that the jury should have been told, in relation to the non-swimming counts, that a swimming count as to the same complainant could only be taken into account as to possible guilt of another count if it had been proved beyond reasonable doubt. This was not done. 116 Thirdly, for the reasons given above as to why the swimming counts should not have been tried with the others, the matter cannot be treated as immaterial and not involving a miscarriage of justice. 117 Thus, while it is somewhat artificial to consider the matter as a discrete question, even if the counts were properly tried together there should nevertheless, on this score, be a new trial of those of which the appellant was convicted. 118 It was also submitted for the appellant that, in addition, the jury should have been directed that, if they acquitted on a count involving a given complainant, their acquittal must be regarded as weakening the complainant's credit as to the other counts. The submission was said to be founded on remarks made in Jones v The Queen (1997) 191 CLR 439, apparently at 453. This is, however, to misread Jones. That was not a case of supposed misdirection on this point. It was a case of "unsafe or unsatisfactory" verdicts. The point made by Gaudron, McHugh and Gummow JJ was that, in the circumstances of that case, it was difficult to see how an acquittal on one count could be regarded as consistent with conviction on others. There is no justification for any general requirement that any such direction as that suggested should be given, nor was there any need (or, indeed, any justification, as a matter of fact) for it in this case, if in any other particular case there might be. Proposed Disposition 119 The appeal should be upheld, the convictions should be quashed and the court should direct a new trial of the charges of which the appellant was convicted. I certify that paragraphs 78 to 119 are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 23 November 2001 Counsel for the appellant: Mr S W Tilmouth QC Solicitor for the appellant: Baxter & O'Keeffe Counsel for the respondent: Mr P S Hastings QC with Mr G C Lalor Solicitor for the respondent: Commonwealth Director of Public Prosecutions Dates of hearing: 17 May 2001 and 20 August 2001 Further written submissions received: 10 September 2001 Date of judgment: 23 November 2001