District Court New South Wales Medium Neutral Citation: R v S.I.M [2020] NSWDC 503 Hearing dates: 26 August 2020 Date of orders: 2 September 2020 Decision date: 02 September 2020 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [75] Catchwords: CRIME — Sexual offences — Sexual Intercourse without consent CRIMINAL PROCEDURE — Trial — Separate trial application Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: Sutton v The Queen (1984) 152 CLR 528 De Jesus v R [1986] HCA 65 R v Mostyn [2004] NSWCCA 97 O'Leary v R (1946) 73 CLR 566 R v Player [2000] NSWCCA 123 Adam v R [1999] NSWCCA 189 Harriman v R (1989) 167 CLR 590 TWL v R [2012] NSWCCA 57 LJW v R [2010] NSWCCA 114 DJS v R [2012] NSWCCA 9 KRM v The Queen 2001 HCA 11 R v Anna Zhang [2005] NSWCCA 437 Texts Cited: Nil Category: Principal judgment Parties: Regina (Crown) S.I.M (Accused) Representation: Counsel: Smith Crown Prosecutor Kluss Counsel for the accused, File Number(s): 2019/00083475 Publication restriction: Section 578A Crimes Act provides a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. Judgment Introduction 1. This is an application by an accused for separate trials. There are four charges on the indictment. Each is a charge of sexual intercourse without consent. In respect of Count 1 the complainant is X. In respect of counts 2, 3 and 4 the complainant is Y. The application seeks to have separate trials for Count 1 on the one hand and counts 2, 3 and 4 on the other. 2. The application was supported by an affidavit of the accused's solicitor. In addition to annexing the relevant statements of proposed Crown witnesses, some telephone records and a brief chronology as an aide memoir, the affidavit made two submissions. The first was that there should be a separate trial due to the principles stated in De Jesus v The Queen [1986] HCA 65 and Sutton v The Queen (1984) 152 CLR 528 by Justice Brennan and asserting that there was no similar fact evidence that would bode against the separation of trials. The second submission was that there was a reasonable possibility of concoction. 3. At the hearing counsel for the accused, Ms Kluss made further submissions which I address below. 4. The Crown's response to the application is to rely on section 29 of the Criminal Procedure Act and in particular subsection 1(b) and (c), that the offences arise out of the same set of circumstances and form part of a series of offences of the same or similar character. The Crown further submits, in line with s29(3), that there is no reason why in the interests of justice the offences ought be heard separately. The Crown argues that there are three bases justifying the cross admissibility of the evidence going to count one with the trial of counts 2, 3, and 4. Those three bases are said to be transaction evidence, coincidence evidence and tendency evidence. The Crown Case 1. In order to determine this application it is necessary to set out the Crown case. The Crown case statement sets out that the accused was 28 years old at the time of the alleged offences and at the time of the allegations had known the two complainants, X and Y, for eight years and four years respectively through his de facto partner. On 16 February these four were to attend a wedding and were to stay at X's home. They attended the wedding at about 2:30 PM then returned to X's home. The accused with others went to a tavern and drank beer. They then attended the reception of the wedding. Whilst there they consumed alcohol and cocaine. At about 1130 the four people mentioned together with two others, BL and SC walked towards X's home. X and Y consumed some MDMA on the way. They reached X's home and at midnight a LM arrived. Y felt sick prior to 3:30 AM and asked if she could stay the night which she did by sleeping on the lounge. X returned outside where others were still drinking and talking. SC left about this time. About 3:30 AM X went to bed and LM left, leaving only the accused and BL awake (as set out below, X may have been in bed by 3.30am, but did not go to sleep until sometime between approximately 3.40am and 3.50am). 2. Count 1 involving X is alleged to have occurred when the accused went into the bedroom of X. It is alleged the accused inserted his finger into her vagina whilst X was asleep. X rolled over and looked at the accused and his finger came out. He then left the room. 3. Count 2 is alleged to have occurred when the accused went to the lounge room where Y was lying in the foetal position with her backside facing away from the back of the lounge. There is no indication in the Crown case statement of how long after count one (if indeed it is after count one) this is alleged to have occurred. As I read the Crown case statement each of the counts appears to have been set out sequentially. It is alleged for count 2 that the accused inserted a finger into Y's vagina. Count three is that he then allegedly removed his finger and placed his penis into Y's vagina. Y was half asleep/half awake, pushed the accused and said "stop fuck off". The accused is said to have walked off. It is then alleged Y fell asleep and the accused returned to the lounge room and inserted a finger into her vagina. Y woke up and said "what are you doing fuck off" and the accused walked away. 4. The accused left with his partner early in the morning after having a swim and Y left about 8 AM. During that day it is alleged that the accused telephoned Y but did not speak to Y and sent her a text stating "can I give you a call later, I hope you didn't feel violated". 5. The above events allegedly occurred on Saturday 16 and Sunday, 17 February 2019. On Tuesday 19 February X and Y disclosed to each other the alleged sexual assaults. On 27 February they gave statements to police. This somewhat communal approach is what raises the concerns of the accused as to concoction. 6. On 15 March the accused was arrested and interviewed and denied any sexual assault. The statements 1. On 27 February 2019 X made a statement. She described her unit where she lives by herself. I note it includes an account of an event estimated to have occurred in 2010 - 2011 and which was not the subject of any submissions. It also includes criticisms of the accused seemingly unconnected to the evening in question. I am obviously aware of that paragraph but it does not seem to me to have a role to play in the current application. The statement then recounts events largely as per the Crown case statement. By the end of the reception X drank six bottles of beer by her own estimation and consumed some cocaine. Back at her place she drank two more beers. She says it was about 2:30 AM that she put Y on the couch and about 3 AM that she put the accused's partner in a bed in the inside spare room. She then got changed into her pyjamas and went to bed. The next thing she remembers was seeing the accused facing her. She states he was leaning over her and had a hand inside the back of her pyjama shorts and inside her undies and at least one finger inside her vagina. She rolled over so that his hand came out of her pants and his finger/s out of her vagina. He left the room. She does not know the time this happened and says it felt like between 4 and 5 o'clock. She then woke up about 6 AM and saw the accused staring at her on the left side of her bed. She told him to get out and she then slept till 10 AM. She told her employers the above on the Monday, other than the allegation of the accused's fingers being in her vagina. On the Tuesday she messaged Y asking if anything weird had happened to her. Later that day she got a call from Y who told her that the accused sat on the couch with her and had his hand down her pants and his fingers in her vagina. 2. X made a second statement on 10 April where she says that paragraphs 14 and 17 of her first statement are not correct. Rather than go to her room to sleep she had in fact had sex with LM. I note in the statement of LM of 19 March he says he cannot remember much and gives no statement as to having sex with X. The Crown argues this evidence of sex with LM is not admissible and I deal with this s293 issue below. 3. Y made her first statement on 27 February. In this statement she recounts waking up to the accused sitting on the couch telling him to "fuck off" whereupon he leaves and she goes back to sleep. She then wakes up and feels his fingers in her vagina. She says she received a text that day as set out above but says she deleted it. She speaks with X on 19 February and they both state that the accused put his fingers in their vaginas. In a second statement the same day Y says she washed all her clothes that day and also added that she took cocaine. In the third statement of Y made 13 March 2019 she said that on the first occasion the accused sat on the couch his finger was in her vagina and then on that first occasion he removed his finger and inserted his penis from behind her. 4. Y made a fourth statement on 14 October 2019 stating the accused's partner had asked her why the accused is texting her presumably relied on by the Crown as being a reference to the deleted message and also saying that she got a message from the accused on 14 March 2019 the same day the police had visited his home. 5. On 15 March the accused agreed to an electronically recorded interview and it appears he was the first to mention X having sex with LM. Relevantly his account of the evening, absent the alleged offending, is similar to the others, culminating in only he and BL sitting out the back. He says he sat up all night and went for an early morning swim "pretty much" when BL left. He acknowledges contacting Y on 17 February, saying it was to obtain drugs. 6. According to a statement by SC he went outside with Y at about 1:40 AM to talk and then left without re-entering the house. He returned at 3:30 AM and saw Y on the couch, could not wake her and so went home. On 1 March Y told him of the digital allegation but not the penile / vaginal allegation and in fact denied penile / vaginal sex when SC asked her. On 2 March X told him of the accused having his finger in her vagina. On 4 March Y told him of the penile / vaginal sex saying she was embarrassed before. Y also said at this time that the accused said they could do anal sex, something not in her police statement. 7. In the statement of BL dated 19 March he says he saw LM exit X's room but was unclear as to when. He said he spoke to the accused for about two hours and left about 4:30 AM. He noticed Y's bum showing as he left. He says the next day the accused told him that he saw Y's bum and touched her leg and she consented and they went all the way. 8. A chronology was handed up by the accused as an aide memoire. It refers to a statement of the accused's de facto partner, which was not in the materials handed up. 9. The timing of these allegations is not clear. The CCS and the statements have Y going to the lounge before X goes to bed. Y is said to have gone to the lounge before 3.30am, and X is said to have gone to bed at 3.30am (though there is also reference to 3am, see [11] above). The CCS reads as if the alleged offending occurred in the order they appear in the indictment, so that the alleged offending against X occurs first. I infer that the sexual activity of X with LM occurred before the alleged sexual assault, and would also note that for the purposes of this application, nothing turns on whether this occurred before or after the alleged sexual assault on X. On my reading of the first and third statements of X she was on her own in her bedroom after LM left by approximately between 3.40am and 3.50am. This would match up with par 18 of X's first statement of the event occurring on her estimation "felt like" between 4am and 5am. Y gives no indication by reference to any time of when the alleged offending involving her may have occurred. The competing arguments 1. Section 29(1) CPA permits more than one offence alleged to have been committed by the same accused to be heard together in 3 specified circumstances, 2 of which the Crown argues applies here. Section 29(3) provides that proceedings related to 2 or more offences may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. 2. The two circumstances relied upon by the Crown are that the offences arise out of the same set of circumstances and that the offences form or are part of a series of offences of the same or a similar character. The accused argues that the offences here are separate, and arise independently of each other. 3. The focus of the argument was largely but not entirely on the s29(3) provision. In broad terms the accused's argument can be said to be that the matters should be heard separately in the interests of justice because: 1. Due to the prejudicial effect of the jury hearing evidence of other sexual allegations, said to have occurred on the same night. 2. The evidence of one case is not admissible in the other (the two cases being count 1 on the one hand and counts 2, 3 and 4 on the other). This argument raises issues of transaction, or context, evidence, coincidence evidence and tendency evidence (that is, whether the evidence is "cross admissible"). The Crown also argues that the evidence of each complainant is relevant in the other case as going to the accused's state of mind. 3. It is part of the accused's case that the allegations have been concocted by the two complainants. The prejudicial effect 1. In Sutton v The Queen (1984) 152 CLR 528, at p541, Brennan J said: 5. When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them. As Lord Cross of Chelsea observed in Director of Public Prosecutions v. Boardman (1975) AC 421, at p 459 , so long as the general rule excluding similar fact evidence is maintained "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 by trying all the charges together". It would be misleading for a judge to require some further "special feature of the case" - the criterion adopted by Lord Pearson in Ludlow v. Metropolitan Police Commissioner (1971) AC, at p 41 - before giving a direction for separate trials. The purpose of provisions such as s. 278 is to avoid the technicalities and rigid rules of criminal pleading and procedure, but not to impair the administration of criminal justice. Irvine C.J. pointed out in R. v. Brent [1919] VicLawRp 6; (1919) VLR 46, at pp 52-53 with respect to the corresponding Victorian provision, that it did not "intend to introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged should not be affected by the evidence given in relation to another charge - certainly not the evidence given by another person in relation to another charge". The price of dispensing with the technicalities and rigid rules of criminal pleading and procedure is the imposition upon the trial judge of the onerous function of directing the course of proceedings to ensure that justice is properly administered. To that end he is given a discretion to order separate trials. Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials (cf. per Lord Hailsham of St. Marylebone in Boardman (1975) AC, at p 447 ; Novac (1976) 65 CrAppR 107, at p 111 ). (at p542) (bold added). 1. In De Jesus v R [1986] HCA 65, which like Sutton was a case of alleged sexual offending, Brennan J said: 2. Once it was conceded that the two sets of offences were part of a single series, it was for the judge in the exercise of his discretion to grant or refuse the application for separate trials. I have already stated my view in Sutton as to the way in which the exercise of that discretion should be approached (see pp.541-543) and it is unnecessary to repeat it. Suffice to say that when the admission of the evidence admissible on the charges joined in an indictment carries the risk of impermissible prejudice to the accused if the charges are tried together, separate trials should be ordered. There is no requirement that some further "special feature of the case" appear before separate trials are ordered. I agree with the Chief Justice that sexual cases are likely to arouse prejudice and that a direction to the jury is unlikely to give sufficient protection to an accused. Though I would not place sexual cases in a special category for the purpose of applying the general statement I made in Sutton, it would be an extremely rare case in which the difference in the view expressed by the Chief Justice and my view would result in a different exercise of discretion. (bold added) 1. The bolded passage above, from De Jesus, needs to be read as referring to evidence admissible on one but not another of the charges. So read, it is consistent with the passage of Sutton set out above. It is also consistent with the following passage in the judgment of Brennan J in Sutton at p545, with the bolded words showing that the position may well be different if the evidence in question is admissible in respect of both (or more) of the charges: 10. The first principle of general application is that in a criminal trial evidence of the commission of offences other than the offence charged is prima facie inadmissible against an accused person. The chief reason for the prima facie inadmissibility of evidence of an offence other than the offence charged is this: it is thought that the antipathy which evidence of another offence is apt to engender may unjustly erode the presumption of innocence which protects an accused person at his trial; i.e., the evidence of the other offence may be regarded by the jury as being more probative of guilt of the offence charged than it can fairly be thought to be. 1. The need to avoid prejudice of the type here raised by the accused is strongly recognised. 2. In Sutton the trial judge declined to direct a separate trial for certain offences alleged against the one accused. The basis for the decision, with which the South Australian Court of Appeal and the High Court agreed, was because evidence "implicating the accused in one set of offences was admissible in evidence upon his trial for the offences charged in the other counts on the indictment". This was because of the "striking similarity" between the different acts of the offending of the different charges. In other words, similar fact evidence, today considered in terms of coincidence evidence under s98, with the need also to consider sections 101, 135 and 137 as may needs be. 3. In my view it must follow that unless the Crown can show that the evidence of the offending against the two different complainants is admissible in each case, the trials should be separated. Is the evidence "cross admissible" Transaction evidence and "state of mind" 1. The first basis for admissibility argued by the Crown was that the evidence was "transactional". "Transaction evidence" is evidence that forms part of a relevant transaction and is relevant if without such evidence "the transaction of which [the fact in issue] formed an integral part could not be truly understood and isolated from it could only be presented as an unreal and not very intelligible event"; per McColl JA in R v Mostyn [2004] NSWCCA 97, citing O'Leary v R (1946) 73 CLR 566 at 577 per Dixon J. 2. The Crown submits that the evidence of each complainant would be significantly distorted by the exclusion of the other complainant's account; see [19] of the Crown's written submissions. 3. I have recounted in broad terms the evidence of the complainants above. The fact in issue in each case is the actual alleged events of sexual assault, and more specifically: whether one or more sexual assaults occurred; if so, who was the offender/s; and what was the state of mind of the offender/s. Beyond the evidence of the complainants as to the sexual assaults and the respective responses of the complainants to the alleged assaults, the evidence of each complainant is largely in conformity with the evidence of the other persons who accompanied them at various times during the evening. The evidence of X as to the alleged assault upon her does not form an integral part of the alleged assault upon Y, and similarly the evidence of Y as to the alleged offence upon X. The facts of both Mostyn and O'Leary give a good demonstration of what transaction evidence is, and why it is not the evidence of the complainants in respect of the offending alleged upon the other. Both were cases of violence. The transaction evidence concerned the behaviour of the accused before and / or after carrying out an alleged act of violence. The evidence of the conduct of the accused in both those cases allowed as transaction evidence was part of the overall conduct of the accused in committing the offending. At [135] of Mostyn McColl JA notes that the accused's conduct towards the police and his aggressive behaviour towards the complainant were close in time. It can be seen to be part of the "transaction" of the offence. 4. On our present facts, it seems clear that the offending alleged against X must have been within reasonable temporal proximity to the alleged offending against Y. As discussed above, the timing is not clear, and further to the above, I note [12]-[14] of the statement of BL which seems to be suggesting an opportunity for some of the offending to have occurred whilst he was on the back verandah. In my view, assuming temporal proximity, there is not the connection between the offending alleged against X and Y respectively of the same type or character as is evident in the cases of Mostyn and O'Leary. The same can be said of the cases of Adam v R [1999] NSWCCA 189, Harriman v R (1989) 167 CLR 590, and R v Player [2000] NSWCCA 123, as discussed by McColl JA in Mostyn. 5. Transaction evidence may be admissible to go to the state of mind of an accused, eg as in Player to prove malice. The Crown relied on [121]-[125] of Mostyn in this regard. Those paragraphs focus on Player and the need in that case to prove malice, so that the evidence of the accused being aggressive shortly after he had broken a shop front window was admissible to show his state of mind as at the time of the offending shortly before. The situation was similar in Adam where the charge was maliciously inflicting grievous bodily harm. 6. Notably, these examples of transaction evidence going to show a state of mind are examples of conduct relevantly connected to the offending sought to be proven. As discussed above, there is no such transaction connection between the two events of offending here. For this reason, I do not consider that should it be established that the state of mind of the accused when he first offended (whichever charge that may be) was that he knew the complainant was not consenting, provides evidence that on then allegedly offending against the other complainant, that he had that same state of mind. This in my view would amount to tendency evidence, the legitimacy of which I consider below. Nor does reliance on Harriman assist the Crown here; the types of matters transaction evidence may go to set out at [132] of Mostyn, whilst not exhaustive, are not present here. 7. The Crown also relied on TWL v R [2012] NSWCCA 57. The passage relied on was at [43]. That was a case of manslaughter where a joint criminal enterprise was alleged. The evidence of earlier statements by the accused in the time leading up to the fatal event to the effect of "Lets go after people and start fights" was considered relevant to establishing the state of mind of the accused necessary to make out the element of the offence. In my view this case is of minimal assistance to the Crown, as, like the earlier cases, what is being relied on is the state of mind necessary to make out the elements of the offence such as malice or joint criminal enterprise. 8. A case more favourable to the Crown argument is LJW v R [2010] NSWCCA 114. That was a case of sexual assault upon a child. The evidence in question was held not to be part of the res gestae as it was not "an inseparable feature of a unified sequence of events"; see at [45] citing O'Leary. However, the evidence was of conduct of the accused on the day of the offending acting in a way that supported an inference that the accused was "in a state of mind such that he had an interest in and a lack of inhibition from engaging in sexual activity in the presence of boys, and that there was a probability that this state of mind continued"; at [50]. Hodgson JA, at [51] expressed the opinion that this was not tendency reasoning. 9. There is a clear analogy to be drawn here between these facts and our present case. Evidence of committing sexual assault on one sleeping or semi sleeping female adult must surely exhibit the same kind of state of mind analogous to that in LJW, namely the state of mind such that the accused had an interest in and a lack of inhibition from engaging in sexual activity on sleeping or semi sleeping females. There is one distinction to be made from LJW, namely that the conduct being relied on to found the state of mind is offending conduct. In other words, this approach, on these facts, amounts to allowing evidence proving other criminal acts which is not admissible if it "does no more than prove that the accused has a general criminal disposition which makes it likely that he committed the offence with which he is charged". These words are from McHugh J at p627 of Harriman cited at [130] of Mostyn. There are of course exceptions to this, including transaction evidence already considered. On the evidence of the two complainants, all that is known about the state of mind of the accused is a preparedness to commit an offence, which for the foregoing reasons is not admissible in the case of the other alleged offence. The events concerning X do not evidence a state of mind or a transaction concerning Y, and the events concerning Y do not evidence a state of mind or a transaction concerning X. 10. I accept the submissions for the accused that the allegations concerning X and Y should be seen as two separate transactions. On a broad view, this is because the allegations concerning one of them are not an "inseparable feature" (LJW at [45]) of the other. 11. I also accept the submission of the accused on the issue of state of mind. Consistent with the above discussion, that was that evidence of state of mind is evidence that by its nature goes to the offence in question, not some other offence, albeit close in time. To do so would result in the error identified at [37] above. As was submitted in writing for the accused, to allow this evidence would impermissibly improve the cases in respect of each complainant where the evidence was not tendency or coincidence (as to which see below). Tendency evidence 1. At [51] of LJW, Hodgson JA made the point in respect of the asserted state of mind of the accused in that case that it was not tendency reasoning, but rather it was reasoning that, on this particular day, the appellant exhibited a certain state of mind (and, lest some consider this reasoning circuitous, with that state of mind being based on evidence of conduct other than other offending). Similarly in TWL, McFarlane JA said at [43], the evidence there relied on to establish the joint criminal enterprise was not evidence of tendency, but of a particular state of mind proximate to the time of the offending. 2. For the reasons outlined above, I have rejected the argument for cross admissibility based on establishing the state of mind, due to the existence of two separate complainants so that we are not dealing with the one transaction. It remains reasonable to say that the evidence relied on by the Crown as tendency, which was submitted to be a secondary position, even though not accepted as evidence of state of mind relevantly to the offences charged, still retains the character not of tendency evidence but of evidence of conduct at this particular time, subject of course to considering if there is some feature of the offending that links the two alleged offences together. 3. The Crown relied on a tendency notice asserting tendencies sought to be proved as: 1. His tendency to have a particular state of mind, namely to have a sexual interest in sleeping female acquaintances when his partner is in the premises; 2. His tendency to act in a particular way, namely to assault female acquaintances when they are asleep and other people are in the premises including his partner. 1. The notice then sets out "common links" between the alleged acts as including: 1. The accused knew both complainants; 2. The accused partner knew both complainants; 3. The acts occurred in the early hours of 17 February 2019 at the home of X; 4. Both complainants were asleep and woken by the acts of the accused; 5. The accused returned to where each complainant was sleeping a second time; 6. There were other people in the premises including the accused's partner; 7. Three of the four acts involved the accused digitally penetrating the vaginas of the complainants. 1. I do not find the tendency argument persuasive for a number of reasons. The tendency as to state of mind is arguably not much more than saying an adult male aged 28 may be sexually attracted to an adult woman. The tendency to act by assaulting such women is not a far remove from saying the accused has offended before. 2. The additional features of the tendencies sought to be proven, namely that the accused's partner was on the premises, is not so much a tendency on the part of the accused, but an incidental fact of the circumstances of this evening. The same can be said for the alleged 7 common links. The events need to be seen in the context of a group of acquaintances attending a social event, and staying at one of the acquaintances home. The common links are not so much particular characteristics of the offending of the type discussed at [58] of Bauer, but are the factual circumstances in which the alleged two separate offences occurred on this night. This is certainly so of the first, second, third and sixth matters listed above. The seventh matter is hardly a characteristic setting this kind of offending aside, and indeed, given that penile / vaginal intercourse occurred only with one complainant is a point of distinction, not commonality. Similarly with the fifth matter; on the second occasion concerning X no sexual assault took place, in contrast to the allegations concerning Y. 3. Section 97 requires the evidence to have significant probative value. For the foregoing reasons, my view is this is not satisfied. In addition to the concerns just noted, [58] of Bauer contains the same caution as noted above at [25] and [37], namely that without the necessary "feature" of the offending: "evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant". 1. Should that assessment be wrong, then in my view the evidence should still remain inadmissible by reason of s101, that the probative value of the evidence does not outweigh the danger of unfair prejudice, being the prejudice spoken of by Brennan J and set out at [23] and [24] above. Coincidence evidence 1. Section 98(1) is in the following terms: (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless-- (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note : One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. 1. The short point here is that at the same location, on the same evening, two adult women sleeping or semi asleep allege they were sexually assaulted. I note in this regard the submissions of the accused concerning concoction, however on that point I prefer the submissions of the Crown, and accept that it is established that matters of concoction of the type alleged in this case by the accused are matters for the jury; see Bauer at [69]-[70]. 2. The coincidence notice lists 6 matters of similarity, namely: 1. The acts occurred in the early hours of 17 September 2019 at the home of X; 2. Each complainant was asleep and awoken by the acts of the accused; 3. The accused returned a second time to each complainant; 4. Other people were in the premises including the accused's partner; 5. 3 of the 4 counts were of digital penetration; 6. The accused had known the complainants for years. 1. What the above is probative of is that it is alleged 4 sexual assaults occurred upon two females at one location on the same night. It is not expressly stated, but it is implicit or clearly assumed, that the similarities relied on include the purported identification of the accused as the offender, a matter made clear in the complainants' statements. 2. The question is in terms of s98, does the evidence of these similarities on its own or with other evidence (so the identification evidence, if it is not correctly considered a similarity would still be considered) have significant probative value in respect of one or more of the facts in issue (identified at [31] above)? 3. Section 98 was discussed by Whealy JA in DJS v R [2012] NSWCCA 9. In a discussion commencing at [62] his Honour largely accepts the approach to determine the admissibility of coincidence evidence set out by Simpson J in R v Zhang. The principles set out by Simpson J were broadly accepted by Whealy JA, with some allowance for changes to the legislation, and also making clear that Simpson J's formulation is focused on the evaluation to be performed by the trial judge. Those principles were: (i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value; (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act ); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury; (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly , to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted. 1. At [75] Whealy JA stated the approach is to decide the capacity of the evidence, by itself or having regard to other evidence of the kind mentioned in the section to be significant (that is, to be of importance or of consequence) in establishing the fact or facts in issue. 2. Does this evidence show it is improbable that the alleged assaults on X and Y were coincidence? The section expressly refers to "similarities in the events or the circumstances"; whilst it may be argued that the events could, with respect, be seen to be somewhat generic examples of sexual assault, the element of circumstances is what in my view renders the evidence to have significant probative value. That is, the two occurrences occur it would seem between 1.30am and 6am, and most probably in a narrower time frame, in the same unit, where the accused is identified by each of X and Y. The likelihood of coincidentally there being one or two other offenders is improbable, to the extent that the evidence of each of the complainants is probative in showing it is improbable that what occurred was coincidence. Whether this be then established beyond reasonable doubt is a matter for the jury. 3. A concern of admitting this evidence as coincidence evidence is that it brings with it the potential for prejudice referred to by Brennan J in Sutton and De Jesus. Yet those remarks of Brennan J were couched amongst the qualification that the evidence was not admissible to prove the "other" offence. The broad statements of principle do not prevent the joint trial where the evidence of the other alleged offence is admissible in the trial of the first offence. If it is admissible under s98, then the accused has the protection of section 101. If the "unfair prejudice" is considered not to be outweighed by the probative value then it still will not be admitted. 4. DSJ is an example of this. In short the facts of DSJ were of DSJ obtaining inside information, and he then was alleged to have procured NS to buy the shares, which is an offence, and then NS with possession of that information, bought the shares, which is an offence. There were ten "pairs" of offences on the indictment alleging this conduct. The Crown sought to rely on evidence of each count on the indictment as evidence in respect of each other count, as being coincidence evidence. It was alleged that each accused did the acts alleged and had the required state of mind on the basis that the similarity of the events was such that it was improbable that they occurred coincidentally. It was accepted that whether the trial was severed or not depended on whether this coincidence evidence was allowed. Ultimately the coincidence evidence was allowed. 5. Zhang is also an example of this. Zhang faced two drug charges said to have occurred on the one day. One was importing a drug (also referred to as attempted possession), and the other was possession of the drug. The imported charge relied on drugs (or an inert substitute) found at Zhang's premises. The possession charge related to a second quantity of drugs also found on her premises. The issue at trial ultimately was one of knowledge, and the Crown sought to rebut the idea that it was coincidence that the accused should have the two quantities of drug in her premises without her knowledge. The Crown sought to establish this by use of coincidence reasoning. 6. In Zhang Simpson J said in relation to section 29(3) the only rational basis for prohibiting a joint trial in the interests of justice, was if it was concluded that evidence of the appellant's guilt of one offence would not be admissible as what used to be called propensity evidence (that is, coincidence) in proof of her guilt of the other, or that irreparable prejudice would be caused to the appellant by the two charges being heard together. As to this matter, at [115] Simpson J referred to KRM v The Queen 2001 HCA 11 where the trial of the offender on a number of counts gave no cause for concern. This is a recognition of the likelihood of a joint trial proceeding where the coincidence evidence is admissible, albeit that the risk of prejudice is acknowledged. 7. This supports the argument for the Crown in the present case, that is, that evidence of one offence on the indictment can be coincidence evidence for another offence on the indictment, subject to s98 being satisfied. 8. At [55] of DSJ Whealy J said that s98 poses this simple question "whether the evidence being considered is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue". The trial judge assesses the capacity of the evidence to do this ("could"), not what the jury is likely to conclude. 9. Assessment of probative value for s98 (and 97, 101 or 137) does not depend on an assessment of its reliability or credibility; R v Shamouil [2004] NSWCCA 52 at [237]. The assessment is made on the basis of the jury accepting the evidence (whether they do or not is a matter for jury). This of course is consistent with the approach to concoction referred to above. 10. Whealy J continued at [71] to emphasise that it is the judge who evaluates the "capacity" of the evidence to rationally affect the probability of the existence of a fact in issue ("could"), and it is for the jury to determine the "actual probative value" of the evidence. So the judge is to ask "whether a hypothetical jury would be likely to find the evidence of importance or of consequence in coming to a conclusion about the matters in issue in the trial". At [72] he says the judge takes the evidence at its highest and determines if it has the capacity to be of importance or consequence in establishing the fact in issue, either on its own or with other evidence. The judge does not evaluate the actual weight of the evidence nor make a prediction as to the weight the jury may give it. 11. Much of DSJ concerned arguments as to the coincidence evidence being capable of being explained in a way inconsistent with guilt. In this regard Whealy J at [79] said that to have regard to such a view it must be a real possibility, not fanciful, and be a broad possibility capable of being stated in general terms and the possibility must substantially alter the judge's view as to the otherwise significant capacity of the evidence to establish the facts in issue. But in doing this the judge cannot assess the actual weight of the evidence. Here, the height of this argument for the accused is to note that at least one other male was present until about 4.30am in the home of X, being BL. There is also the element of certain males coming and going in a way that was not transparent; eg, LM is thought to have left at about 3am, but in fact remained with X; and SC left but says he later returned, at a time when he says Y was asleep on the lounge, whereupon he left again. I note the excessive use of alcohol and cocaine by most if not all of those present at X's home, and the use of MDMA by X and Y, which allows for the possibility of lowered inhibitions, and impaired memory of events. 12. In my view the alternate possibilities are not such as to render inadmissible the coincidence evidence. These possibilities do not remove the possibility of a jury accepting the Crown case supported by the coincidence evidence. For the alternate theory argument to succeed it would need to be based on evidence more strongly showing the unlikelihood of the coincidence evidence being capable of establishing, or aiding the establishment, of guilt. 13. As is evident from the reference by Whealy J to the judgment of Simpson J in Zhang, her reasoning was found correct. At [142] of Zhang Simpson J put the process of assessing the admissibility of what is said to be coincidence evidence as follows, by reference to the facts in that case: 1. What are the two or more events upon which the DPP sought to rely as related events (or facts and circumstances, as set out in notice). 2. Are those facts and circumstances capable of giving rise to an inference that the appellant had attempted to possess the drugs in the container, and had in fact possessed the drugs in her premises? 3. Do these events have relevant similarities? 1. Applying this here, the two or more events are the sexual assaults and, to quote s98, "the circumstances in which they occurred". I have set out the six matters set out in the coincidence notice at [50] above, and in my view the most significant features are: 1. The two alleged assaults occurred in the early hours of 17 February 2019 at the home of X, so that there is proximity of both time and location; 2. The identification by both complainants of the accused, in which regard I note my comment at [51] above; 3. Each of the complainants allegedly lying asleep (as stated in the notice; at least one may have been semi asleep) at the time the alleged offending begins and were woken by the actions of the accused. 1. In my view these events are relevantly similar and self evidently so. 2. Section 101 must be considered. Does the probative value substantially outweigh any unfair prejudice? In my view the answer to this is yes. I come to this conclusion based on the significant probative value of the coincidence evidence, which I consider high, or put another way, comfortably satisfies s98. The gravity of the prejudice is also clearly considered significant being in mind the judgment of Brennan J in Sutton. Yet it is clear from other authorities that this prejudice is an acceptable consequence where the evidence is otherwise admissible, a conclusion reached, at least in this case, Zhang and DSJ, after considering s101 and therefore unfair prejudice, and see also Sutton and KRM. Put more succinctly, Sutton demonstrates the need to guard against prejudice of evidence of other offending when considering some other offence. It also allowed for the admission of such evidence, because that evidence went to the proof of the other offence. Sutton predates s101. The reasoning here is really firstly that Sutton does not prevent evidence of other offending in such circumstances. And secondly, under s101, the concern of unfair prejudice is a factor that must be considered before the evidence can be admitted. The above authorities demonstrate that prejudice feared from evidence of other offending is commonly present where that evidence is otherwise admissible. The more comfortably that s98 is satisfied the less likely s101 will prevent the admission of the evidence, though each case of course turns on its own facts. Conclusion on the separate trial application 1. I accept the facts of this case place it within the type of case referred to in section 29(1)(b) and (c). The consideration of s29(3) involved considering the admissibility of the evidence of one alleged offence in the trial of the other alleged offence. Having found the evidence to be admissible as coincidence evidence, the result in my opinion is it is not in the interests of justice for count 1 to be heard separately from counts 2, 3 and 4. Section 293 application 1. Contained in the second statement of X is evidence of X taking part in sexual activity, specifically consensual sex with LM on the evening of the alleged sexual assault upon X by the accused. By reason of section 293(3) CPA this evidence is inadmissible. The accused argues that the evidence is admissible by reason of s293(4)(a). 2. Section 293 is relevantly in the following terms: 293 ADMISSIBILITY OF EVIDENCE RELATING TO SEXUAL EXPERIENCE (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies-- (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply-- (a) if the evidence-- (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, ………… and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (bold added). ………… (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. 1. The activity in question here occurred at about 3am on the night/morning of the alleged offending. That was the time that X went to her bedroom. The offending is alleged to have occurred in the bedroom. It follows the offending allegedly occurred after 3am, and I infer, and there was no submission to suggest otherwise, and it does not appear to be in dispute, after the sex activity with LM. As noted above, this would seem to have ended at about 3.50am. The facts suggest the accused went for a swim before later leaving the premises at about 6.30am. The time in which the alleged offending occurred involving X would therefore seem likely to be between 3.50am and 6.30am and, if it is found the accused did go for a swim, the time period would likely narrow to end at the time that swim occurred. In my view the sexual activity takes place at or about the time of the commission of the alleged offence, so that subs (4)(a)(i) is satisfied. I also consider subs (4)(a)(ii) is satisfied. Part of the argument for the Crown canvassed above as to coincidence evidence, accepted by me, was of the improbability of the sexual assaults upon the two complainants both occurring on the one night, in the one premises, which has about it the distinct flavour of a connected set of circumstances, albeit not the one transaction in terms of transaction evidence. That is, the sexual activity with LM occurs in the same premises, on the same evening, after the same party, with some of the same people present, as it is alleged that the offending occurred. 2. It remains to consider the afterword of subs 4, highlighted above. The Crown says this evidence does not go to any fact in issue. As identified above, the facts in issue are, at least, a. did any assault occur; b. if so who was the offender (and see [31] above). The accused's point on this issue seemed to mainly go to identity, though the concoction argument is also generally relevant, particularly where there is this significant omission from X's police statement, and it will be for the jury to assess how it impacts on X's credibility. The submission was made that this was a night in which there were various comings and goings to the premises, and that the identification was made in a dark room with ambient light. It is also the case that the alleged offending, and the sexual activity with LM occurred close in time. As set out above, the maximum time difference is about 2 hours, but it could have been significantly shorter than this. An alternative theory of the accused is that LM came back, and it was he who was in the bedroom. Given he only a short time before had consensual sex with X this may appear on one view unlikely, but that is a matter for the jury. My view is the evidence does have sufficient probative value on the issue of who the offender was, that is "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". I also consider it a valid fact for cross examination as to credit in this case, and thus relevant to a fact in issue, namely whether the sexual assault occurred. Accordingly the adducing of evidence of the sexual activity between X and LM will be allowed. Whether that occur in chief and cross examination, or only in cross examination, will be a matter for the parties to determine. Orders 1. I make the following orders: 1. The accused's application for count 1 to be heard separately to counts 2, 3 and 4 is dismissed. 2. The evidence of count 1 is admissible in the trial of counts 2, 3 and 4 as "coincidence evidence" and not as tendency evidence. 3. The evidence of counts 2, 3 and 4 is admissible in the trial of count 1 as "coincidence evidence" and not as tendency evidence. 4. Pursuant to s293(4), section 293(3) does not apply so that evidence may be adduced by either party as to the sexual activity between X and LM on the evening of 16 / 17 February 2019. For the avoidance of doubt that evidence will be admitted, subject to any further application, in both trials given the issue of concoction raised by the accused. ********** Amendments 18 December 2020 - 18/12/2020 - Amended Case Title 10 February 2021 - 10/02/2021 - Further anonymisation of offenders name in parties field. 12 February 2021 - 12/02/2021 - Further anonymisation of names at para 15 and 16 of the judgement. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021