Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Leighton v R [2015] NSWCCA 156 Hearing dates: 27 April 2015 Date of orders: 24 June 2015 Decision date: 24 June 2015 Before: Hoeben CJ at CL at [1] Adams J at [2] Wilson J at [8] Decision: Orders: Leave to appeal on grounds 7, 9, 10, and 12 is refused. The appeal is dismissed. Answers to the Questions Posed by the Primary Judge: 1. No. 2. Yes. 3. Yes. Catchwords: CRIMINAL LAW – appeal – s5F Criminal Appeal Act 1912 – decision to admit tendency and coincidence evidence – relevance – probative value – expert evidence relating to effects of Nitrous oxide – whether denial of procedural fairness – whether proper consideration of possibility of contamination Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: DSJ v R [2012] NSWCCA 9 Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 House v the King (1936) 55 CLR 499 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 Pfennig v The Queen [1995] HCA 7; 182 CLR 461 R v BWM (1997) 91 A Crim R 260 R v Davis [2004] NSWCCA 298 R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 R v Le [2000] NSWCCA 49 Regina v Folbigg [2005] NSWCCA 23; 152 A Crim R 35 TS v R [2014] NSWCCA 174 Versi v R [2013] NSWCCA 206 Category: Principal judgment Parties: Rodger Garry Leighton (Appellant) Regina (Respondent) Representation: Counsel: Mr. A. Miller (Appellant) Mr. Neil Adams (Respondent Crown) Solicitors: Macedone Legal (Appellant) Solicitor for Public Prosecutions (Respondent Crown) File Number(s): 2012/00282749 Publication restriction: Restriction lifted 26/7/2017. Thereafter, s.578A of the Crimes Act 1900 prohibits the identification of the complainants in these proceedings. A non-publication order is in force prohibiting the identification of any "tendency" or "coincidence" witness Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 05 December 2014 Before: Woods QC DCJ File Number(s): 2012/00282749 Judgment 1. HOEBEN CJ at CL: I agree with Wilson J. 2. ADAMS J: I have had the advantage of reading the judgment of Wilson J in draft, with which I generally agree. I wish, however, to make some additional remarks. As her Honour mentions, the occasions relied on by the prosecution as tendency and coincidence evidence occurred over a period of about ten years. The alleged indecent or sexual assaults (for convenience referred to as "assaults") occurred on every occasion when the appellant administered nitrous oxide (N2O) to the complainants, sometimes on a number of occasions. On the many occasions when N2O was not administered, no alleged assaults occurred. As Wilson J's summary of the allegations shows, the patients involved numbered 19 and the allegations commenced in 1967 and then every year from 1971 (or possibly 1972) to 1982 (or possibly 1984). Taken as a whole, the evidence (if true) demonstrates that, when he administered N2O to females, he had a tendency to sexually interfere with them, one way or another. It is obvious that, during this period, the appellant would in all likelihood have had many other female patients to whom it appears likely he administered N2O but it is not known whether he assaulted them or not. However, it is not necessary to establish, when attempting to prove tendency, that the impugned conduct in question (here, the assaults) occurred on every occasion when the opportunity (here, the sedative effects of N2O) arose. It is a question of fact and degree, depending on the evidence in each case, whether the alleged tendency is capable of being sufficiently probative to overcome the potentially unfair prejudicial effect of proving some similar bad behaviour. More precisely, the learned trial judge in substance concluded that the probative weight of the evidence was capable of rationally affecting the probability that, when the complainants were affected by N2O administered by the appellant, their experience of and recollections about his sexual conduct towards them were nevertheless genuine and reliable rather than imagined or confabulated. I respectfully agree with Wilson J that this conclusion was open to his Honour; in my opinion, moreover, it was plainly correct. 3. It will be seen that I have somewhat simplified the prosecution's description of the tendency sought to be proved, which is to my mind unnecessarily complicated. Of course, the other facts mentioned: that the appellant was a dentist; that he had female patients; that he ensured he was alone with some (the complainants); and that he administered N2O to them are relevant facts. To my mind the critical "tendency" is that, in those circumstances, he "touched them in a sexual manner". 4. Whether the proposed evidence is "coincidence" evidence is, I think, a rather different question. It is whether the jury could find that the similar complaints made by the various ex-patients proposed to be called cannot be explained by mere coincidence and the inference that the conduct of which they complained in fact happened; or, at least, the number and similar character of the complaints is such as to significantly affect the determination of a fact in issue, namely, whether the evidence of the complainants involved in the charges is truthful and reliable in respect of the appellant's sexual conduct. This approach requires attention to be paid to the circumstances in which the complaints were first made. Many of the complainants came forward because of media publicity about the appellant's charges but, of those, many had made complaints (for example, to family members) well before any publicity. It is reasonable to infer that the complainants had no other links which might give rise to the possibility of joint concoction. Once this possible explanation for the multiplicity of similar complaints is dismissed, the remaining inference available (indeed, inevitable) is that the complainant's evidence about the relevant events is truthful and reliable and, hence, that they in fact occurred. 5. I discussed the meaning of "events" in s 98 of the Evidence Act 1995 (NSW) in Versi v R [2013] NSWCCA 206 at [126]-[135]; cf Basten JA at [11]-[17]. Perhaps the simplest way of putting the point is that stated in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 482 (Mason CJ, Deane and Dawson JJ): "The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred." 1. The context in which the admissibility of the other complaints was decided is the proposed evidence of the impact of N2O induced sedation on the reliability of the complainant's evidence of sexual touching. Even if it were not for this issue, my view would be that the impugned evidence is admissible for the reasons that I have mentioned. However, its probative weight is capable of even greater significance when the suggested N2O effect is in issue, for obvious reasons. The proposed evidence is therefore admissible as "coincidence evidence". 2. There remains what seems to me to be an important logical point which I mention for completeness, although it was not raised as an issue. If it be accepted that there is a reasonable possibility that N2O sedation can lead to imagined sexual interference of the type charged, then even if one could be satisfied, looking at the charges as a whole, that they cannot be explained by that phenomenon, nevertheless, in respect of one of them it might be so explained and thus necessarily require acquittal. On this hypothesis, it might not be possible to identify the particular charges which would not be open to be explained it that way, with the result that the appellant must be acquitted of all (cf Regina v Folbigg [2005] NSWCCA 23; 152 A Crim R 35). I hasten to point out, however, that this significantly oversimplifies the evidence to be adduced in respect of each incident (as helpfully summarised by Wilson J), which would need to be considered as well and emphasises the vital importance of identifying, in respect of each charge, the evidence relevant to that charge and the need to consider each charge separately. 3. WILSON J: This is an appeal brought pursuant to s.5F(3)(a) and (3)(b) of the Criminal Appeal Act 1912 against an interlocutory judgment and consequent orders made on 5 December 2015 by his Honour Judge Woods QC DCJ sitting in the District Court of New South Wales. 4. Section 5F relevantly provides: "5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) [……..] (2) […..…] (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." 1. Having made the orders of 5 December 2014 his Honour granted a certificate to the appellant pursuant to s.5F(3)(b) certifying that his orders were proper for determination on appeal. His Honour confined the certificate to those of his orders based upon evidence that was before the Court as to the effects upon an individual of the gas nitrous oxide. 2. The appellant (who is referred to in that way for convenience) additionally advances thirteen grounds of appeal against his Honour's orders. To the extent that those grounds go beyond the terms of the certificate granted by the trial judge, the appellant requires leave from this Court (s.5F(3)(a)). The Nature of the Proceedings in the District Court 1. The appellant has been indicted for a total of twenty seven charges for various sexual assault offences created by specific provisions of the Crimes Act 1900. He faces fifteen counts of indecent assault contrary to s.76 of the Act, nine counts of indecent assault contrary to s.61E, one count of indecent assault spanning the period before s.76 was repealed and after s.61E was introduced, and two counts of sexual intercourse without consent with a child under 16 years contrary to s.61D(1) [1] . 2. There are nine complainants. The ages of the complainants at the relevant times range from 9 or 10 years of age to 34 years of age. 3. The earliest of the offences is said to have occurred in 1973, whilst the last of the offences avers a time span concluding in 1984. 4. At the time of the commission of the alleged offences the appellant was in practice as a dentist in the Sydney suburb of Jannali. All of the charges arise from allegations made against him by girls and young women who consulted the appellant professionally in his surgery, in the course of his practice as a dentist. Broadly, the allegations are that, having administered his patients with nitrous oxide, the appellant took advantage of the sedating effects of the gas to sexually or indecently assault them. 5. The Crown sought to have all charges heard together in a joint trial, and to rely upon the evidence of each complainant as both tendency and coincidence evidence, pursuant to ss.97 and 98 of the Evidence Act 1995 ["the Act"] respectively, relevant to the determination of all charges. (Prior to the final determination of that issue by his Honour the Crown advised the appellant and the Court that it would remove counts 17 to 26 from the indictment presented before his Honour, with those charges proceeding together in a separate trial.) 6. The additional evidence the Crown sought to lead was tendency and coincidence evidence from another ten witnesses, pursuant to ss.97 and 98 ["the tendency / coincidence evidence"]. The Crown had served notice upon the appellant in compliance with s.99 of the Act that it proposed to adduce evidence from a number of women who had made similar allegations against the appellant. 7. By notice of motion the appellant sought the severance of all counts relevant to individual complainants from all other counts on the indictment, necessitating nine separate trials, and took issue with the admissibility of the tendency and co-incidence evidence. 8. The matter came before his Honour on 19 August 2014 for pre-trial hearing to determine the matters raised in the motion. Evidence was called on the voir dire between that date and 27 August 2014, with further evidence taken on 31 October 2014. Although the statement of each was in evidence before the court, the oral evidence given by the complainants was limited to the administration to each of nitrous oxide and its effects, and the circumstances in which complaint to the police had been made. 9. His Honour heard submissions from the parties on 14 November 2014, and delivered his judgment on 5 December 2014. Orders with respect to the conduct of the trial were made on that day. 10. As was agreed between the parties in the proceedings before his Honour, the question of severance of the remaining counts on the indictment was dependent upon the rulings made as to the admissibility of the tendency and coincidence evidence. That latter question was necessarily dealt with first. The Disputed Evidence 1. The Crown sought to lead evidence from each of the complainants as evidence capable of establishing the specific criminal offences that each complainant had alleged against the appellant, but also as evidence relevant to proof of counts based on allegations made by others. The Crown contended that the evidence of each of the complainants was admissible as evidence that the appellant had particular tendencies, and a particular state of mind. 2. In addition to the tendency / coincidence evidence of the complainants, the Crown proposed to call evidence from another ten women, each of whom asserted that she had been indecently assaulted by the appellant at his dental surgery during a consultation at which a sedating gas was administered, but whose allegations were not reflected by a criminal charge. 3. The Crown argued that the evidence of both groups of women was admissible pursuant to s.97 of the Evidence Act at the appellant's trial as it was capable of establishing that the appellant had a tendency to act in a particular way, namely: 1. "A tendency to use his position as a dentist to gain access to female patients; 2. To cause himself to be alone in the consulting room with female patients; 3. To touch the female patients during the consultations in a sexual manner; and 4. To touch the female patients in a sexual manner while they were under the effects of nitrous oxide." 1. The Crown submitted that the evidence was also capable of proving that the appellant had a tendency to have a particular state of mind, being a sexual interest in female patients. 2. The same evidence of indecent and sexual assaults being committed by the appellant upon a number of women was sought to be tendered pursuant to s.98 of the Act as, the Crown argued, it was capable of establishing that the appellant acted as it was alleged he had by the complainants, and that he had a particular state of mind, being a sexual interest in female patients, in circumstances where the similarity of the allegations could not be explained by coincidence. 3. For a proper understanding of the issues of admissibility determined by his Honour and reviewed by this Court, it is necessary to set out the evidence available to be led in the Crown case from the complainants, and from the tendency / coincidence witnesses, and to refer to expert evidence going to the effects of nitrous oxide, that was before his Honour. The Evidence of the Complainants 1. The complainants who gave evidence on the voir dire, and whose evidence the Crown sought to rely upon at trial will be here referred to only by their initials. A summary of the evidence of each follows: RC – complainant relevant to counts 1 - 3 1. RC first consulted the appellant in 1973 when she was about 12 years of age. She saw him on four occasions. On her second visit to the appellant's surgery, RC went into the consulting room alone whilst a parent waited for her in another room. There was a dental nurse, but she did not remain in the consulting room at all times; rather, she went in and out attending to other duties. 2. The appellant administered a gas to RC by placing a mask over her nose and mouth. The appellant did not appear to time the administration of the gas. After its administration, the complainant recalled the appellant commenting that she felt nice, and asking her "is that nice", as he rubbed her breasts, upper thighs, and genital area over her underpants. The appellant rubbed his groin area against RC's shoulders. 3. In about 2010 RC was speaking with her husband about some dentist work, and told him about what the appellant had done when she was a child. In late 2012 the witness was looking through a local newspaper and saw the appellant named as a dentist who had been charged with sexual offences. She immediately rang the police, and subsequently made a statement. LY – complainant relevant to counts 4 - 7 1. LY first consulted the appellant in the late 1960s when she was about 20 years of age. She was not administered nitrous oxide by him until 1974 when she was 28 years of age and attended his surgery to have a broken tooth capped. The appellant made a number of appointments for LY that were after 5pm. On these occasions the dental nurse was allowed by the appellant to leave, having regard to the hour. 2. The appellant administered gas to LY by placing a mask over her nose. On the first occasion gas was used LY felt something hard pressing against her arm and realised it was the appellant's erect penis pressing against her through his clothing. A considerable amount of gas was administered to her, and she felt very groggy, and vomited. 3. On the next occasion she consulted the appellant, LY was again administered gas. On recovering from its effects she found the appellant standing next to her with his hands inside her bra, with one hand on each breast, and his fingers on her nipples. He immediately removed his hands. The appellant helped LY from the chair and assisted her to walk around the surgery. LY saw that the appellant's penis was outside his trousers. 4. During her next appointment with the appellant LY was again given gas via a mask. She thereafter had no awareness of her surroundings until the gas stopped, and she awoke to find the appellant standing with his finger inside her underpants. He removed his finger on perceiving that LY had recovered. LY asked the appellant what he was doing, and he made some comment about having wanted to give her an orgasm. 5. LY saw the appellant one final time, as the crown he had fitted needed additional work done to it. On this occasion, no gas was administered to her and, when the appellant leaned in close to her, LY told him to leave her alone. The appellant made a comment about having been under considerable stress. CP – complainant relevant to count 8 1. CP saw the appellant when she was about ten years old in 1975. On the first occasion the appellant administered gas to her by a mask over her nose. He placed his hands underneath the long cape the complainant had been given to wear, and put a hand inside her underwear. The appellant rubbed the outside of CP's vagina. CP was unable to speak or move due to the effects of the gas. There was no dental nurse in the room. 2. After the appointment concluded CP left the surgery with her mother, who had been waiting for her. She complained to her mother, but her mother "fobbed" her off. She told no-one from then until she told her partner in early 2012. After seeing a newspaper article about the appellant being charged with sexual assaults she contacted police and made a statement to them. VD – complainant relevant to counts 9 - 12 1. VD saw the appellant at his surgery in the mid-1970s when she was 32 or so years old. On a visit to have a tooth filled she was administered gas by the appellant via a mask over her nose. Whilst affected by the gas VD felt the appellant rubbing her genitals on the outside of her clothes. She does not recall a dental nurse being in the room. 2. The same thing occurred when VD went again to the appellant's surgery for a second tooth to be filled. After gas had been administered to VD, and whilst she was affected by it, the appellant rubbed VD's genitals through her clothing. 3. During her final consultation with the appellant VD was again given gas via a nasal mask. She felt the appellant move his hand underneath the long bib that had been placed around her neck and onto her underpants. VD was wearing a menstrual pad inside her underpants and, after moving his hand against the pad, the appellant then moved his hand up and onto her breasts and began to rub them. 4. VD complained soon after to her husband and, a short time later to a group of friends at a tennis match. SJ – complainant relevant to counts 13 - 14 1. SJ was in her early thirties when she consulted the appellant in his surgery in the period 1976 to 1979. On each occasion she attended the surgery the appellant administered gas to her. After having attended the surgery for various treatments, and being administered gas, with nothing untoward occurring, the complainant attended an appointment in the relevant period when she was again given gas via a face mask. SJ felt that she was given a larger dose of the sedative than had previously been the case. She felt its effects more deeply than in the past. At a point when she emerged from the gas she found the appellant touching her breasts on the outside of her clothing. He then moved his hands to her genital area and began to rub her vagina on the outside of the jeans that she was wearing. SJ felt unable to stop the appellant because of the effect of the sedative. 2. SJ told her husband about what had happened on returning home, and never returned to the appellant's surgery. LK – complainant relevant to count 15 1. LK saw the appellant as a child of about ten or eleven years of age in 1979. She recalls having a mask put over her nose and perhaps her mouth through which a sweet smelling gas was administered to her. When under the effects of the gas LK felt the appellant squeeze her arm, after which he moved his hand to the top of her thigh, and between her legs. She could feel him pushing his hand against her vagina on the outside of her clothing. 2. This happened on a number of occasions when LK had an appointment with the appellant. She told no-one of these events until seeing some media reports referring to the appellant facing charges. She then told her partner about what she recalled of her childhood visits to the appellant. 3. LK conceded in evidence that she had read a newspaper article about the charges already brought against the appellant, which may have mentioned him assaulting girls by rubbing their breasts and genitals. Reading that material prompted her own memory of what had happened to her. She had also searched the internet for information about the appellant and read about the use by him of gas upon those patients whom he was alleged to have assaulted. 4. LK conceded that, until she read the information about the appellant, she had always regarded her own experience as a dream. BM – complainant relevant to count 16 1. During her childhood years BM consulted the appellant as he was her family's dentist. On an occasion in the period 1980 to 1983, when BM was 12, 13 or 14 years of age, she attended an appointment in the appellant's surgery. Gas was administered to her through a mask, leaving her feeling "woozy". The appellant placed his hand on the complainant's breast and began to touch it through her clothing. He was not wearing gloves. BM felt unable to do anything because of the effects of the gas. The dental nurse was not in the room at this time. BM told no-one until years later about what had happened. VB – complainant relevant to counts 17 - 26 1. VB first consulted the appellant in 1983 when she was about twelve years of age. During one consultation when VB was to have a tooth extracted the appellant gave her gas through a face mask. The mask was in place for some time and VB felt very effected by the gas. The appellant put his hands under the long bib VB was draped in and began to rub her genital area on the outside of her clothing. 2. After returning home VB told her mother what the appellant had done, but her mother did not believe her. Later, VB ran away from home and, after entering a refuge, was allocated a case worker, to whom she complained about the appellant's conduct. 3. On returning to live with her parents VB again had dental treatment at the appellant's surgery. On an occasion when she went to the surgery for a tooth extraction, VB was administered gas by the appellant. Once VB was under its influence the appellant placed his hands underneath the long dental cape she was wearing and began to rub his hand very firmly against VB's clitoris. This went on for some minutes. VB was unable to do anything to stop the appellant because of the effects of the gas. The dental nurse was not in the room at the time of the alleged assault. 4. A few weeks later VB returned to the surgery for another tooth extraction. Gas was administered to her through a mask and, once VB was feeling its effects, the appellant put his hands under the dental cape and rubbed his fingers against VB's clitoris, over her clothing. After a short period he moved his hand inside her track pants and underwear, and inserted a finger or fingers inside the complainant's labia. With his other hand the appellant rubbed VB's breast. 5. VB was unable to protest because of the sedative effect of the gas. The nurse was not in the room when this occurred. 6. Soon after, VB attended another appointment with the appellant for a final extraction procedure. As before, the appellant administered gas to her and, once it had taken affect, began to rub his hand on VB's clitoral area on the outside of her clothing, underneath a dental gown. He was interrupted by the entry of a dental nurse into the room. The extraction proceeded thereafter. 7. Some weeks later, after her gums had healed following the extractions, VB returned to see the appellant so that braces could be fitted. This required a number of appointments. At the first of the appointments VB was draped in a gown and gas was administered to her. As previously, when no dental nurse was in the room, the appellant put his hands underneath the gown and began to rub against VB's clitoral area on the outside of her clothing. 8. During the subsequent appointments to fit the braces the same things happened. 9. After the braces had been fitted onto VB's teeth by the appellant, she removed them herself to avoid going back to see the appellant. Some of VB's teeth were damaged by the removal, and VB's mother forced her to return to the appellant's surgery to have them attended to. 10. During the first of the restorative appointments with the appellant, VB was again given gas by him, and felt him rubbing his hand forcefully against her genitals on the outside of her clothes. She was unable to resist because of the effects of the gas. 11. During another of these appointments the appellant administered gas to VB in, VB felt, a greater quantity than was usual. She felt much affected and was unable to move or open her eyes. Whilst thus affected the complainant felt the appellant rubbing his hand against her vagina on the outside of her clothing for some minutes. This stopped, and VB next felt something hard, like an elbow, pushing against her pelvic bone. This caused her pain. Next, the complainant felt the appellant slide his hand inside her underpants from the side and, after rubbing her clitoris for a short time, he forcefully inserted his fingers into VB's vagina. 12. VB heard the dental nurse enter the room. The appellant told her he was not ready and the nurse left the room. When she returned, the dental treatment was undertaken. 13. When VB returned home and bathed, she saw bruising on her inner thighs and around her genitals. 14. She decided to run away from her home, that being the only way she felt she could prevent the appellant from assaulting her. VB did not see the appellant again until returning to her family home in 1986 or 1987. She saw the appellant on one occasion thereafter. AM – complainant relevant to count 27 1. AM saw the appellant as a child as he was her family's dentist. On an occasion when she was aged between seven and eleven years old, in the period 1980 to 1984, AM had to have some teeth removed. The appellant told her that he would use "laughing gas" so that she would not feel the injections of anaesthetic. He fitted a mask to her face and administered gas. 2. The appellant initially sat beside AM as the gas was administered, holding her hand. He then began to push strongly against her genital area with his hand. The dental nurse was not present. The same thing happened to AM on subsequent visits. 3. When, as a teenager, AM realised the wrongness of this conduct, she complained to her mother. She later told her husband and a medical practitioner. The Tendency / Coincidence Evidence 1. The statements of the women proposed to be called as tendency / coincidence witnesses were tendered to his Honour during the pre-trial proceedings, and the women were called to give oral evidence on the voir dire. With the witnesses again referred to by initials only, the evidence in summary is as follows. Evidence of GK 1. In around 1967 when GK was 14 years old she went to the appellant's surgery for a dental consultation. She was a little frightened and the appellant suggested that she have "gas" to relax her. GK agreed and the appellant administered gas to her through a mask. No dental nurse was present. 2. After GK began to feel the effects of the gas, to the extent that she could not move or speak, the appellant began to rub her breasts, and then her genitals, on the outside of her clothing. GK told no-one until many years later. Evidence of LM 1. In 1971 or 1972, when she was 16 or 17 years old, LM consulted the appellant in his surgery. No dental nurse was present. The appellant administered gas to LM through a face mask. Once under the effects of the gas, LM felt the appellant probing her genitals. On returning home she told her mother about what had happened. Many years later, having heard about a dentist being charged with sexual assaults, she told her partner about the appellant. Evidence of SD 1. SD first saw the appellant as a primary school student. He was her family dentist, and she saw him twice yearly for check-ups. 2. On an occasion in 1973, when she was 14 or 15 years old and in Year 9 at high school, SD went alone to an appointment at the appellant's surgery. A cape or bib was draped around her by the dental nurse, who thereafter left the room. The appellant asked SD if she would be willing to try some "happy gas" that he said he had just gotten, as he wanted to ensure patients could not feel pain under its influence. She agreed. When a dental nurse walked into the room the appellant told her that she was not needed and the nurse left. 3. The appellant placed a face mask onto SD and, once the gas had taken effect, SD could feel the appellant forcefully pushing on her pelvic bone and vagina with his elbow. He then began to rub against her breasts. After a time, the appellant administered oxygen to SD to diminish the effect of the gas. She left the surgery soon after. 4. On arriving home SD noticed that the skin around her pubic bone and vagina had a number of small cuts, and was very red. The area stung. 5. On later visits to the surgery SD refused to have gas, opting for anaesthetic by injection instead. She was not assaulted again. 6. SD told no-one about what had happened at the time. In September 2011 she was having a conversation with a friend who said that she had been molested by a dentist at Jannali. SD then disclosed her own experience. Evidence of CF 1. In 1973 or 1974 CF, then aged 12 or 13 years, saw the appellant at his surgery. The appellant administered "happy gas" to her via a face mask, leaving her feeling as if she was floating in and out of consciousness. The appellant then took her hand underneath the dental gown she was wearing, before moving his hand to CF's genitals. He rubbed her genitals on either the outside or inside of her clothing. This happened on a number of occasions during dental appointments. At the time these things were occurring, CF told her sister about it. Evidence of JD 1. JD saw the appellant as her family dentist. In 1974 or 1975 when she was 14 or 15 years old she attended the appellant's rooms for a filling. The appellant suggested that she have gas and it was administered to her. On recovering from the effects of the gas JD found that her blouse had been unbuttoned. A dental nurse came into the room. JD asked why it was necessary to unbutton her blouse. 2. On the next occasion JD saw the appellant she was again administered gas. On waking from the effects of the gas JD found the appellant with his hand on her upper thigh near her underpants and in the process of pulling up her skirt. JD struggled against the appellant to pull her skirt back down again. 3. JD told her boyfriend about what the dentist had done, and he accompanied her to her next appointment. She soon after began seeing another dentist. Evidence of CP 1. CP saw the appellant when she was a child living in the southern Sydney area. He was her family dentist. In 1975, when CP was about 10 years old, she had an appointment with the appellant for some treatment. In the surgery CP was covered with a long dental gown or cape, and the appellant placed a mask over her nose. The gas made CP feel strange and unable to react. 2. After the dental work was completed and the dental nurse had left the room, CP felt the appellant move his hand underneath the gown and into her underpants. She felt him rubbing her vagina, although she was unable to do anything because of the sedative effect of the gas. After leaving the surgery, and going home, CP told her mother that the dentist had put his hand down her pants. Her mother fobbed her off. 3. This touching happened on more than one visit to the surgery. The Evidence of JW 1. JW consulted the appellant from about 1975. She needed braces and saw the appellant for this reason. JW was generally covered in a gown, and the appellant administered "happy gas" to her through a facial mask. On those occasions when gas was administered the appellant would put his hand onto JW's genital area and rub her vagina. Whilst this contact was initially on top of her clothing, the appellant eventually began inserting his hands inside JW's underwear and rubbing her vagina, touching her skin. 2. Once JW had finished with braces, she did not return to see the appellant. She told no-one of what had happened until many years later when she mentioned it briefly to a friend. When she heard a news report of a dentist being charged with sexual assault she immediately thought of the appellant, and contacted police. Evidence of VW 1. VW began seeing the appellant at his practice in 1975 when she was about 14 years old. At her second appointment with him the appellant administered gas to her through a mask placed over her nose. He sat beside her as she breathed in the gas, holding and stroking her hands. 2. At the next appointment the gas was administered to VW by the appellant in the same manner as previously. The gas began to effect VW. She recalls the dental nurse leaving the room. Towards the end of the appointment the appellant began rubbing VW's breasts on the outside of her clothing. VW was unable to say or do anything because of the effects on her of the gas. 3. Afterwards, VW told no-one as she felt that she would not be believed. The experience had an almost dreamlike quality to her, because of the gas. 4. At the next appointment the appellant administered gas to VW, and the dental nurse left the room. The appellant began rubbing VW's breasts, before moving his hands to rub her vagina, on the outside of her clothing. 5. At another appointment VW was administered gas by the appellant, who took her hands and began to stroke them. He then began rubbing her breasts, before moving his hand to her groin. He lifted VW's dress up and put his hand inside her underwear, rubbing the outside of her vagina. VW could feel the appellant's hand pushing against her vagina but felt that she could not move or resist what was happening. She tried to move her legs and eventually managed to kick out such that the tray of dental equipment beside the chair was knocked to the floor. A nurse came into the room but the appellant told her to leave. 6. VW did not return to see the appellant, as her mother was not happy about the extent of the dental work the appellant said needed to be done. 7. Many years later VW told a friend about what the appellant had done to her. She told no-one else until her friend told her that a Sydney dentist had been charged with assaulting female patients. The Evidence of AS 1. The appellant was the family dentist for AS and her family in the late nineteen sixties and nineteen seventies. In 1977 when AS was 14 years old she had a series of appointments with the appellant to have some dental work carried out. During the first of these appointments the appellant took AS's hand underneath the dental gown she was clothed in and held it, moving it up and down on her body. 2. At the next appointment the appellant administered gas to AS through a face mask. She lost all awareness of her surroundings. On recovering from the sedative, AS found that the appellant had his hand on one of her breasts. Her shirt was unbuttoned. The appellant buttoned the shirt up. There had not been a nurse in the room. 3. For her next appointment, AS took a number of friends with her, hoping their presence would prevent the appellant from touching her. Her teeth were cleaned by the appellant but nothing else occurred. AS told her mother what the appellant had done, and she never returned to his surgery. Later she made a complaint to police during a public campaign urging people to report paedophiles. In September 2012 AS heard a news bulletin about a dentist being charged with indecent assault and contacted police to make a statement. Evidence of CP 1. CP saw the appellant in about 1977 as a 14 year old. She was to have a tooth filled and was given gas through a face mask. After breathing the gas in and feeling its effects, CP felt a forceful pressure against her genitals. The appellant had one arm over her legs and his fingers were pushing into her vagina underneath her underwear. CP felt his fingers push in and out of her vagina a few times. When he removed his hand the appellant carried out dental work on CP. 2. CP said nothing as the experience felt unreal to her due to the effects of the gas. She did not tell her mother. 3. For her next appointment CP wore tight shorts underneath her skirt. The appellant administered gas as he had previously, and told the nurse to leave as she was not needed. CP struggled against the gas to maintain awareness, and then felt her skirt being moved. She hit out with her hands and pushed the appellant away from her. She screamed and yelled to attract attention. A nurse came into the room and stayed for the remainder of the consultation. 4. CP told a school friend about what had happened. When she returned to see the appellant, her mother having made appointments for her, she refused to have gas. Nothing improper happened during these consultations. She later also told one of her sisters about her experiences. The Expert Evidence 1. Three expert witnesses were called at the voir dire and gave evidence before his Honour about the effects of nitrous oxide, a drug well known as a dental sedative. There was no issue that nitrous oxide was the "gas" or "happy gas" that the appellant had administered to the complainants and to the tendency / coincidence witnesses. 2. Drs. Phillip Dey and Paul Gaudrey gave evidence in the Crown case. Dr. Stanley Malamed was called by the appellant. Each was asked to provide evidence as to the properties of nitrous oxide and its effects upon persons administered it, together with the possibility or likelihood of the drug inducing hallucinations of a sexual nature. 3. There was general agreement about the properties and sedative effects of nitrous oxide, a colourless gas with a slight sweet smelling odour, which is administered by inhalation to induce a reversible state of unconsciousness, loss of pain sensation, and loss of responsiveness. 4. It is a weak sedative, the anaesthetic effect of which is measured by reference to the "minimum alveolar concentration" (known as MAC), that being the concentration of vapour in the lungs needed to prevent motor response in half of all patients. The MAC for nitrous oxide is 104%, indicating the weakness of its sedative effect. 5. When used in a clinical setting, such as for dentistry, nitrous oxide is typically administered through a nasal mask, mixed with oxygen. For an anti-anxiety effect the nitrous oxide would be expected to be administered as a gas comprised of 20% nitrous oxide and 80% oxygen. Those proportions vary when a more sedating effect is required, typically at 50% of each gas. 6. The common terms "laughing gas" or "happy gas" have arisen because of the euphoric effect the vapour can have on persons inhaling it. It can also cause hallucinations, suggestibility, and increased imagination. 7. Dr. Dey holds qualifications as a specialist anaesthetist. When reviewing the literature he found anecdotal accounts of patients experiencing hallucinations of a sexual nature when affected by nitrous oxide, but no reported accounts. In the course of his professional work, Dr. Dey had heard one or two reports of patients having dreams of a sexual nature when under the influence of the gas, but they were not distressing in nature and were clearly recognised as dreams. 8. Dr. Dey concluded that, whilst the correlation of sexual hallucinations and nitrous oxide exists, it is very uncommon. He regarded it as very improbable that gas induced hallucinations could account for the number of persons describing a sexual experience whilst under the influence of nitrous oxide administered by the appellant. 9. Dr. Dey suggested that it would be uncommon to seek to achieve an MAC level of any more than 50% when nitrous oxide was employed in dentistry. At such a level, a large proportion of patients would be aware of verbal commands and able to respond. It is likely that the patient would retain a memory of their experience when under the influence of nitrous oxide. 10. A patient who later reported being unable to move or respond whilst under the influence of nitrous oxide was likely to have been administered a dose at a higher rate, with an MAC level of 70% or more. 11. Whilst there was no professionally published protocol from the Dental Board for practitioners administering nitrous oxide to female patients, Dr. Dey deposed that there were recommendations for the presence of a female chaperone on such occasions, dating from as early as the nineteenth century. 12. The doctor agreed that stimulation of a particular area of the body could enhance the likelihood of an hallucination connected to that area. 13. Dr. Gaudry is also a medical practitioner. He agreed with Dr. Dey that there were reports of sexual hallucinations following the administration of nitrous oxide. 14. Dr. Malamed holds qualifications as a dentist and dental anaesthesiologist. He deposed that nitrous oxide is a sedative that was commonly used in dentistry to distract fearful patients. He thought that the descriptions of affect given by witnesses in police statements was suggestive of a level of nitrous oxide having been administered which was either usual or greater than usual. 15. Dr. Malamed said that there were reports of patients administered anaesthetic (of any type) experiencing sexual dreams, although the incidence was quite rare. He thought it possible that accidental contact by the dentist with a patient's chest area could cause the sedated patient to feel some sexual stimulation in that area of the body. 16. Dr. Malamed referred to one study involving volunteers administered concentrations of nitrous oxide at an increasing rate from 40% to 80% and noted that the incidence of dreams increased, from 2% at the lower concentration to 29% at the higher concentration. There was no suggestion that these dreams were specifically sexual in nature. 17. The doctor also relied upon a study he had himself undertaken, using students who were administered nitrous oxide and subsequently asked to complete a questionnaire. Some twelve out of fifty-two students reported some form of sexual arousal. Sexual hallucinations were not referred to. The study was one conducted apparently without scientific rigour, without the knowledge of the students and, although published, it had not been peer reviewed. 18. Dr. Malamed expressed some surprise that the appellant had persisted in his use of nitrous oxide at likely high levels, particularly when there had been demonstrable problems with it (such as VW kicking an instrument tray over, LY vomiting, and CP screaming out). 19. The most that could be said having regard to the expert evidence was that patients administered nitrous oxide may experience dreams or hallucinations of a sexual nature, and that such dreams could be vivid, but the incidence was rare. The Conclusions and Orders of the Primary Judge 1. In a thorough and carefully considered judgment, the primary judge considered all of the evidence to determine whether the evidence of the complainants and of the tendency / coincidence witnesses was admissible pursuant to ss.97 and 98 of the Act, and whether the indictment should be severed. 2. His Honour had regard to the terms of ss.97, 98 and 101 of the Act, and to the nature and probative value of the evidence that the Crown sought to lead. 3. He concluded that the probative value of the evidence was very strong, and substantially outweighed the prejudicial effect it may have on the appellant. He concluded that the evidence should be admitted. 4. Referring to DSJ v R [2012] NSWCCA 9 and the approach there suggested as to the assessment of probative value, his Honour concluded (at J21), "[…] excepting the case of LK, neither the possibility of the claims being the product of sexual delusions induced by nitrous oxide nor any factor of collusion, contamination or publicity causes me to think that the strong probative value of the evidence of any of these women is destroyed or substantially weakened. The probative value of their evidence is substantial and in each case outweighs the prejudicial effect arising from the admission of the evidence as tendency and/or coincidence evidence." 1. As to the separate trials issue, the Crown indicated during the course of the voir dire that it would present a separate indictment for those charges relating to VB. 2. His Honour ordered that the counts based upon the allegation made by LK (counts 13 and 14) should be severed, because of the evidence LK had given about the media articles she had read, and the information she obtained in that way prior to making her statement to police. His Honour concluded that there was a real possibility that the evidence of the witness had been contaminated, and it was appropriate for the allegations she made to be determined as a separate trial. 3. The primary judge commented on the difficulty for both an accused person and a jury to come to terms with an indictment containing a large number of counts, and concluded that, for reasons of practicality rather than legal necessity, counts 4 to 7 and 9 to 14 should be separately tried. The basis upon which his Honour selected those counts was that the complainants were older than the other complainants whose allegations were reflected by charges on the indictment. 4. Having regard to those orders, the Crown is permitted by the primary judge to present a joint indictment containing counts 1 – 3 (evidence of RC), 8 (evidence of CP), 16 (evidence of BM), and 27 (evidence of AM). 5. Although he had concluded that the tendency / coincidence evidence was admissible, his Honour ordered that the Crown be restricted to calling a maximum of six witnesses to give tendency / coincidence evidence. This, his Honour reasoned, would allow the Crown to properly present its case, and the appellant to fairly meet it, without the trial being so large as to be potentially unfair or oppressive to the appellant. The Proceedings on Appeal 1. After judgment was delivered on 5 December 2014 and orders made, the appellant applied to his Honour to grant a certificate pursuant to s.5F(3)(b) of the Criminal Appeal Act 1912 to permit him to bring an appeal to this Court against the orders. The appellant advanced thirteen purported errors of the Court in relation to which he sought a certificate. 2. Whilst his Honour did not accept the thirteen "errors" as worthy of a certificate, he was prepared to grant the certificate insofar as the issue of the legal significance of nitrous oxide and its relevance to the evidence of the complainants and tendency / coincidence witnesses was concerned. 3. His Honour posed three questions for this Court to determine. 1. "Whether the effect of the nitrous oxide on the patients was to destroy or weaken the possible probative value effect of the patients' evidence such that it could not be proper criminal proof of the charges or any of them. 2. Whether there is circumstantial evidence which, taken together with the complainants' versions of what was alleged to have occurred under nitrous oxide could be proper criminal proof of the charges or any of them. 3. Whether the evidentiary rulings in my judgment of 5 December 2014, and the orders made in the judgment are properly based in law." 1. It is important to note at the outset that an appeal brought pursuant to s.5F is not a rehearing. Rather, this Court's role pursuant to s.5F is to review the correctness of the interlocutory orders: R v BWM (1997) 91 A Crim R 260 at [264] per Hunt CJ at CL; TS v R [2014] NSWCCA 174 at [44]. 2. It is for the appellant to establish that error has occurred of the type referred to in House v the King (1936) 55 CLR 499. 3. The appellant's appeal advanced thirteen grounds, each ground corresponding to the asserted errors in relation to which his Honour was asked – but declined - to grant a certificate. Two grounds, 3 and 4, were abandoned at the hearing of the appeal. The grounds are: 1. "His Honour erred in finding that the Tendency Evidence sought to be led by the Crown in accordance with a Tendency Notice served on 1 May 2014 ("Tendency Evidence") was relevant pursuant to s.55 of the Evidence Act 1995; 2. His Honour erred in finding that the Coincidence Evidence sought to be led by the Crown in accordance with a Coincidence Notice served on 1 May 2014 ("Coincidence Evidence") was relevant pursuant to s.55 of the Evidence Act 1995; 3. Abandoned 4. Abandoned 5. His Honour erred in finding that the Coincidence Evidence and Tendency Evidence had substantial probative value; 6. His Honour erred in finding that the probative value of the Tendency Evidence and the Coincidence Evidence substantially outweighed the danger of unfair prejudice to the Appellant; 7. His Honour erred in failing to consider whether the Tendency Evidence was primarily directed to excluding the possibility that the complainant experienced a sexual hallucination as opposed to demonstrating a Tendency of the Appellant; 8. His Honour erred in finding that the expert evidence relating to the effects of Nitrous Oxide did not have the capacity to significantly diminish the effect of the Tendency Evidence and Coincidence Evidence; 9. His Honour erred in finding that there was no evidence as to whether the proportion of Nitrous Oxide administered by the Appellant was above 50%; 10. His Honour erred by taking into account in determining whether the Tendency Evidence and Coincidence Evidence had significant probative value, irrelevant considerations; 1. Complaint Evidence; and 2. The absence of a nurse or a third party; 1. His Honour erred in failing to consider the process by which a jury could reason toward guilt in light of the expert evidence; 2. His Honour erred in denying the appellant procedural fairness by not allowing Counsel for the appellant to cross examine the complainants on the substantive allegations but relied on those versions as an unchallenged version of events; and 3. His Honour erred in finding that there was no substantial risk of contamination of evidence having regard to the risk of affectation by Nitrous Oxide, collusion, contamination and publicity." 1. There is a considerable degree of overlap between the grounds and they will be considered together where possible, consistent with the approach of the parties. Ground 1: His Honour erred in finding that the Tendency Evidence sought to be led by the Crown in accordance with a Tendency Notice served on 1 May 2014 ("Tendency Evidence") was relevant pursuant to s.55 of the Evidence Act 1995; Ground 2: His Honour erred in finding that the Coincidence Evidence sought to be led by the Crown in accordance with a Coincidence Notice served on 1 May 2014 ("Coincidence Evidence") was relevant pursuant to s.55 of the Evidence Act 1995; Ground 5: His Honour erred in finding that the Coincidence Evidence and Tendency Evidence had substantial probative value; Ground 6: His Honour erred in finding that the probative value of the Tendency Evidence and the Coincidence Evidence substantially outweighed the danger of unfair prejudice to the Appellant; Ground 11: His Honour erred in failing to consider the process by which a jury could reason toward guilt in light of the expert evidence. 1. These grounds assert error in the conclusion of the primary judge that the disputed evidence was relevant, and met the tests established by ss.97, 98, and 101 of the Act. 2. (It is noted that there are two grounds numbered 11 in the appellant's written submissions. Each deals with a different issue.) 3. The appellant contends that, because nitrous oxide can induce hallucinations of a sexual nature in patients, with such hallucinations capable of being vivid, neither the complainants and tendency / coincidence witnesses themselves, nor the experts, can be certain that the experience each witness complains of was in fact real. That being so, the evidence of the women is incapable of rationally affecting an assessment of whether the alleged assaults occurred. The applicant additionally argues that, on this basis, the evidence cannot have significant probative value, and any probative value it may have does not substantially outweigh the prejudicial effect. The appellant contends that his Honour was in error in finding to the contrary. 4. Relevant evidence is evidence "that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding": s.55. 5. The fact in issue in the proceedings is whether the appellant committed the offence charged by each count. 6. Evidence is not admissible to establish that a person has a particular tendency unless notice provisions have been complied with, and the evidence has significant probative value: s.97. 7. Evidence that two or more similar events occurred in circumstances sufficiently similar as to make it improbable that the events are explained by coincidence is not admissible unless notice provisions are complied with, and the evidence has significant probative value: s.98. 8. There was no issue before his Honour about failure to comply with notice provisions. The Crown has served notices articulating the use it sought to make of evidence it contended was admissible pursuant to these provisions. 9. The questions then are: is the evidence relevant; does it have significant probative value; and does the probative value substantially outweigh any prejudicial effect it may have on the appellant. 10. The appellant contends that the answer to each question should be no, but the appellant's argument is flawed by a misunderstanding of some of the evidence that was before his Honour, and the way in which it will fall to be assessed by any jury. These misunderstandings underpin each of the grounds of appeal advanced by the appellant. 11. The appellant's overall argument is based upon a fallacious understanding of the evidence, in which it is concluded that none of the women who complained of being assaulted by the appellant can be sure that the experience was real and not imagined, and, that none of the experts called to testify were able to conclude that any individual experience reported by a witness was in fact a real experience. 12. Contrary to the appellant's contention, it was not the evidence of any of the complainants or the tendency / coincidence witnesses that she was not sure if the assault complained of was real. To the contrary, each woman who gave evidence before his Honour offered a seemingly credible and realistic account of events. Whilst all referred to the effects of the nitrous oxide and the strange feelings the drug induced, none expressed any uncertainty as to the reality of the experience. As the primary judge said, at J5, "Each lady presented her piece to the court convincingly, apparently firmly persuaded in her own mind of the reality of what she said had occurred in the dental surgery." 1. That conclusion, which was well open to his Honour, is not diminished by the argument advanced by the appellant in reliance on the expert evidence as to the nature of the recollections of the witnesses. 2. On the voir dire his Honour allowed the appellant to ask the expert witnesses to express an opinion as to whether each of the witnesses who gave evidence of having been assaulted by the appellant had a genuine memory, or merely a memory of an imagined event. None of the three doctors was able to say. 3. Dr. Gaudrey expressed it this way in his report: "This review of the effects of nitrous oxide on patients and the ability of patients to recall events after the inhalation of nitrous oxide does not alone prove or disprove that sexual assaults occurred on the [alleged] victims." 1. Dr. Dey had a similar view, although he thought the number of women complaining of assault at the appellant's hands was significant. 2. Dr. Malamed asserted in his evidence on the voir dire (at T298): "I cannot say that there is any one case where I am convinced it did happen." 1. Dr. Malamed was in error when he concluded in his evidence that each of the women had said she was not sure of the reality of the remembered experience; that was simply not the evidence. Whilst some women spoke of their experience as having a dreamlike quality, none expressed any present reservation about the reality of the assault. 2. Setting that aside, however, the questions asked of the experts to elicit opinion of this type could not be asked at trial: R v Davis [2004] NSWCCA 298. To do so invites the experts to go beyond their expertise, and to usurp the function of the jury, in whose sole province the answers to such questions properly lays. 3. The opinion of the doctors, or of any other witness, as to whether the accounts of the complainants and tendency / coincidence witnesses are to be accepted as credible is irrelevant and inadmissible. Opinion of this nature cannot aid the appellant, or lead to a conclusion that the primary judge was in error in his judgment and orders. 4. Opinion evidence is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s.76. Section 79 creates an exception to that rule where the opinion is based upon specialised knowledge. But an expert such as a doctor is no more qualified to express an opinion as to the reliability of a complainant's allegation than any other person. That conclusion is wholly reserved for the tribunal of fact. 5. The experts in this matter can do no more than give evidence of matters within their specialised knowledge; here, that includes the nature and properties of nitrous oxide, its use and effects, any side effects including dreaming or hallucinations known through scientific and experiential research, and so on. 6. It is no part of the function of the experts to assess the credibility of a witness. 7. When the jury performs that task, it will be asked to do so on the basis of an assessment of all of the evidence, a feature seemingly overlooked by the appellant. The Crown has available to it evidence other than the testimony of individual complainants standing alone. 8. The evidence of other women who assert similar experiences is, prima facie, admissible. But there is also circumstantial evidence which is capable of supporting the charges. 9. The jury will be able to consider the fact that the appellant administered a sedating vapour to each woman in circumstances where no dental nurse remained in the room. A jury may think that ordinary prudence would suggest that a chaperone should have been present, even absent any professional standard to that effect. 10. There is also evidence from which a jury may infer that the appellant made a deliberate choice to be alone in the surgery with women to whom nitrous oxide was administered. Some of the women had appointments scheduled at times when the nurse had left for the day; others gave evidence of the nurse being told to leave. Most said there was no nurse in the room. There is evidence of mishaps with patients under the influence of nitrous oxide (such as CP who began screaming and yelling, and VD who kicked over a tray of instruments) such that a jury would be entitled to question the appellant's ongoing practice of treating women subject to the drug when alone in the surgery. 11. The sedative was administered to some of the women in circumstances where there could have been no legitimate need for it, such as in the case of SD who, on attending for a check-up, was sedated by the appellant. 12. A jury may conclude that the strong effect of the sedative described by most of the women is suggestive that the appellant administered a dose much higher than that which was required for proper use as an anti-anxiety or pain relief medication. 13. Some of the witnesses gave evidence of physical signs consistent with the assaults alleged to have been committed. JD for example, discovered that her blouse had been unbuttoned whilst she was alone in the surgery with the appellant and heavily sedated by nitrous oxide. SD, on returning home from the appellant's surgery, discovered reddening and small lacerations to her upper thighs and genital area. LY, on recovering from nitrous oxide intoxication, observed the appellant's penis to be exposed. 14. All of this evidence (which is not a complete account of the evidence available to the Crown) will be available to the tribunal of fact to inform the assessment made of the reliability of the evidence given by the complainants. That task will not be approached, as the appellant's argument pre-supposes, by considering in isolation a complainant's evidence. 15. His Honour was cognisant of this and, in his judgment, he gave thorough consideration to the availability of other evidence which would bear on the assessment to be made by the jury of the Crown's case at trial in determining whether the charges had been proved beyond reasonable doubt. 16. The additional evidence to be called by the Crown is relevant to the question of its probative value, and that was the way in which his Honour approached the question of the tendency / coincidence evidence. 17. Considered against an accurate understanding of the evidence, and bearing in mind the limited role that expert testimony can play in the circumstances of this case, many of the appellant's proposed grounds of appeal fall away as misconceived. 18. Although the appellant argues that the evidence intended to be led from both the complainants and the tendency / coincidence witnesses does not meet the test of relevance, this claim presupposes that the sort of opinion evidence given on the voir dire by Dr. Malamed (as to whether or not he regarded the evidence as reliable) is admissible. It is not. 19. It also presupposes that the disputed evidence will be assessed in isolation. It will not. 20. For those witnesses who are to be called at trial by the Crown as complainants, the evidence of each will be tendered as proof of the elements of the offences of which each woman individually complains. As evidence going directly to the commission of the offences alleged, the evidence of each complainant is plainly relevant to the assessment of whether the appellant did that which he is alleged to have done. 21. The evidence of each complainant thus meets the requirements of s.55 and is admissible as proof of the individual counts. How it is assessed will be a matter for a jury. 22. The evidence of each of the women, including those whose allegations are not the subject of a charge, is also evidence capable of rebutting a defence, and is additionally relevant in that way. 23. Although an accused person has the time honoured benefit of not being obliged to reveal the nature of his or her defence to the prosecution or to the Court (except in a very few limited circumstances, such as where an alibi is to be relied upon) it is open to the Crown to lead evidence which rebuts an anticipated defence. Here, it is available to the appellant to argue at trial that the complaints against him could be explained by the incidence of sexual hallucinations attributable statistically to nitrous oxide intoxication. 24. The evidence in the Crown case that suggests that a significant number of women allege assaults of a sexual nature against the appellant, and some of them on multiple occasions, goes to rebut that anticipated defence. 25. For those women whose allegation is not the subject of a charge, or where the Crown seeks to rely upon evidence of one complainant to go to proof of a charge or charges relevant to the allegations of another complainant, the primary judge admitted the evidence as both tendency and coincidence evidence. 26. In considering the admissibility of the evidence, the primary judge had regard to the terms of ss.97 and 98, and to the additional exclusionary provision set out at s.101 of the Act. 27. Sections 97 and 98 require the court to make an assessment of the capacity of the disputed evidence to rationally affect the assessment of the probability of the existence of the fact in issue, to a significant extent. The use of the word "could" in the definition of "probative value" provided by the Dictionary to the Act indicates that the court is not obliged to determine that the evidence will in fact have such an affect; it is its capacity to do so which is determinative of its admissibility pursuant to s.97 or s.98. 28. In the context of making the assessment, regard must also be had to whether there is a real possibility of an alternative explanation not consistent with guilt. 29. The Court must have regard to the evidence on its own, or together with other evidence to be adduced by the party seeking to tender it. 30. That is precisely what the primary judge did here. 31. His Honour reviewed the evidence of each complainant and each tendency / coincidence witness. He considered its relevance, and its probative value, and made an assessment of the extent of its probative value. In performing the latter task, his Honour carefully examined the possibility that some or all of the witness accounts of assault were explained by nitrous oxide intoxication or, whether contamination or concoction could realistically have played a role. 32. The assessment of the probative value of the evidence was, in conformity with the relevant section of the Act, undertaken by examining the evidence having regard to the other evidence to be adduced by the Crown, including circumstantial evidence. The appellant's complaint that his Honour was not entitled to have regard to other evidence when undertaking this assessment (ground 10) is misconceived, and fails to consider the requirements of ss.97 and 98, which mandate such an approach. 33. It is noted that, although his Honour heard evidence on the voir dire from Dr. Malamed, called by the appellant, that evidence did not materially contribute to his Honour's conclusions about the probative value of the evidence of the women. Having regard to the wording of ss.97 and 98, the doctor's evidence was not relevant to an assessment of probative value. 34. In my view, the primary judge properly applied the law to the question of the admissibility of the evidence as tendency and coincidence evidence, and was correct in the conclusions he reached. 35. The evidence that the appellant was alleged to have assaulted other women, in his dental surgery, during the course of a dental consultation, after administering nitrous oxide to each, was highly probative of the offences charged. Its significance is such that it substantially outweighs the danger of prejudice to the appellant. There was no error. 36. Grounds 1 and 2, which I regard as encompassed by the terms of the certificate granted by his Honour and thus brought without need for leave, are unmeritorious. I would dismiss each. 37. Grounds 5 and 6 refer to the tests for the admissibility of tendency / coincidence evidence. They too are encompassed by the certificate and there is no requirement for leave. These grounds have not been made out and I would dismiss each of them. 38. Ground 11 is also encompassed by the certificate granted by his Honour. The ground is misconceived, and I would dismiss it. Ground 7: His Honour erred in failing to consider whether the Tendency Evidence was primarily directed to excluding the possibility that the complainant experienced a sexual hallucination as opposed to demonstrating a Tendency of the Appellant 1. Although this ground complains that his Honour failed to consider whether the tendency evidence was tendered by the Crown for another purpose, it is notable that he was not asked to do so. His Honour can hardly be in error for not doing that which he was not asked to do. 2. This ground is misconceived in any event since the evidence, once admitted, is available for use for other purposes, subject to any request to limit the use to be made of it pursuant to s.136 of the Act. 3. Whether the "primary purpose" of the evidence was to demonstrate a tendency on the appellant's part, or to exclude the possibility that the alleged assaults were no more than hallucinations induced by a sedative, the evidence is available to be used for both purposes. 4. The appellant's complaint appears to be that the rulings of the primary judge in allowing tendency and coincidence evidence to be led by the Crown wrongly allows the Crown to rely upon it to rebut the defence of hallucination as accounting for the allegations. As discussed above, the evidence is clearly admissible for that purpose, and no error is disclosed. 5. This ground falls outside the parameters of the certificate granted by the primary judge, and leave is required to advance it. I would not grant leave. Ground 8: His Honour erred in finding that the expert evidence relating to the effects of Nitrous Oxide did not have the capacity to significantly diminish the effect of the Tendency Evidence and Coincidence Evidence; 1. The argument underpinning this ground has been dealt with in relation to grounds 1, 2, 5, 6 and 11, above. It relies upon a misapprehension as to the admissibility of opinion evidence from the three medical and dental experts. The appellant's argument supposes that, because none of the experts could say conclusively in evidence before his Honour that any individual allegation was not the product of hallucination, the probative value of the proposed tendency / coincidence evidence is so diminished as to be valueless. 2. As discussed above, any opinion to this effect is not admissible before the tribunal of fact. It will be a matter for the jury – not the experts - to assess the reliability of the testimony of the complainants, in light of all of the evidence adduced at trial. 3. His Honour was entirely correct in his conclusions in this regard. No error has been demonstrated. Ground 9: His Honour erred in finding that there was no evidence as to whether the proportion of Nitrous Oxide administered by the Appellant was above 50% 1. This ground is based upon a misunderstanding of the evidence. The complaint is that the primary judge erred in concluding that there was no evidence that the nitrous oxide administered to the appellant's patients was administered at a rate above 50%. The purported significance of the dosage is that there is some evidence that dreams or hallucinations may be more common at a higher dosage rate. 2. His Honour's conclusions in this regard were no more than a reflection of the evidence: there was, in fact, no evidence of the rate at which the appellant administered nitrous oxide to his patients. There was evidence from the complainants and tendency / coincidence witnesses of the effects that each felt when administered the sedative by the appellant, and some of the symptoms described could suggest a high dosage level. That, however, was as far as the evidence went. 3. The evidence from former patients of the appellant who are to be called by the Crown as to the effect of nitrous oxide was quite pronounced. Witnesses gave evidence of having felt unable to move, unable to move limbs, unable to speak or call out, frozen, unable to react, and so on. It would be open to a jury to conclude that the rate at which the appellant administered nitrous oxide to the witnesses was higher than is indicated for ordinary dental sedation. Whilst this may give rise to a conclusion that each was sedated at a high rate, and therefore more susceptible to hallucinations, another conclusion is at least equally available. That is, that the patients were deliberately administered a high rate of the drug so as to facilitate the assaults the appellant is alleged to have committed against each, by rendering the patients unable to resist. 4. Patient records did not establish the rate at which the appellant administered nitrous oxide to specific patients, and there was no other evidence capable of establishing that feature of the appellant's practice. 5. The appellant, who would presumably have, at least, knowledge of his usual practice at the relevant time, did not give evidence. 6. There was no error by the primary judge. This ground is misconceived. It is not encompassed by the certificate issued by the primary judge and I would refuse leave to advance it. Ground 10: His Honour erred by taking into account in determining whether the Tendency Evidence and Coincidence Evidence had significant probative value, irrelevant considerations; (i) Complaint Evidence; and (ii) The absence of a nurse or a third party. 1. This ground, numbered 10 in the pleaded grounds of appeal, but referred to as the second ground 11 in the appellant's written submissions, reflects a misunderstanding of the task the primary judge had to perform, in compliance with ss.97 and 98 of the Act. 2. The appellant complains that the primary judge was in error in having regard to other evidence to be adduced by the Crown when assessing whether the evidence of the complainants and tendency / coincidence witnesses had significant probative value. 3. Sections 97 and 98 require the trial judge to consider other evidence when carrying out this assessment. "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind 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 (emphasis added)." 1. Section 98(1)(b) is in identical terms. 2. His Honour was obliged by the terms of ss.97 and 98 to have regard to other evidence adduced by the Crown. Both complaint evidence, and the evidence of the absence of a nurse in the room at the time most of the women allege an assault at the appellant's hands, have the capacity to enhance the probative value of the tendency and coincidence evidence. 3. Evidence of complaint may be relevant in two ways. A majority of the witnesses gave evidence of having complained about the appellant's conduct immediately after the alleged assault occurred. 4. Where there is evidence of complaint made soon after the assault, when the event might be expected to be fresh in the memory of the complainant, the evidence is likely to be admissible pursuant to s.66 of the Act: Graham v The Queen (1998) 195 CLR 606; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; R v Le [2000] NSWCCA 49. The jury may use such evidence as proof of the fact asserted. 5. Whilst a complainant who believes that an hallucination was in fact real may make complaint in the same way as a person who experienced a real event, the evidence is still available to the jury, and it may provide some support for the allegation. 6. In the circumstances of this case, evidence of later complaint may also be admissible, to buttress the credit of a witness pursuant to s.108(3) of the Act. For those witnesses who came forward and made a police statement only after having learnt through media reports or another person that the appellant had been charged, there may be a challenge made by the appellant at trial, as there was during the voir dire hearing, to the effect that the witness has exaggerated her account, or that it has been contaminated in some way by information gained from external sources. 7. In those circumstances it will be open to the Crown, with the leave of the court, to call evidence of a later complaint, not sufficiently proximate to the event to be fresh in the memory, where that complaint pre-dates the media publicity concerning the appellant's arrest. RC for example, told her husband in 2010 about what the appellant had done to her. Evidence of this nature is capable of rebutting any claim that the witness invented her complaint after reading or hearing about the first of the charges brought against the appellant. It is capable in this way of buttressing the credit of the witness: Graham, R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227. 8. This evidence will be available to the Crown and his Honour was right to have regard to it. 9. The absence of a dental nurse in the surgery when assaults were alleged to have taken place is also evidence available to the Crown, which the primary judge was correct to consider. The fact that virtually all of the women who complain of an assault gave evidence that the dental nurse was not present at the time is evidence capable of providing circumstantial support for the allegations. Particularly in circumstances where the appellant must have been aware of the possibility of adverse reactions to nitrous oxide, common sense would suggest a nurse would ordinarily be present to assist the dentist. It will be open to any jury to conclude that the dental nurse was sent home or out of the surgery to facilitate assaults upon female patients. 10. This was evidence that his Honour was both entitled and obliged to consider. 11. No error has been established and, the ground not being encompassed by the certificate issued by the primary judge, I would not grant leave to advance it. Ground 12: His Honour erred in denying the appellant procedural fairness by not allowing Counsel for the appellant to cross examine the complainants on the substantive allegations but relied on those versions as an unchallenged version of events. 1. The appellant advanced no argument in either his written submissions or his submissions before this Court which identified any error on the part of the primary judge in the way in which the voir dire was conducted. 2. The appellant pleads that the primary judge denied him procedural fairness in declining to allow him to cross examine the complainants and tendency / coincidence witnesses during the voir dire hearing about any aspect of their evidence, without restriction. 3. Section 189 of the Act governs the circumstances in which a voir dire can be held. It does not provide any statutory right for a party in criminal proceedings to have a voir dire. Such a hearing is only to be held to determine a preliminary question concerning, relevantly, whether evidence should be admitted. 4. In determining whether the tendency / coincidence evidence should be admitted, the relevant considerations were the effect on the evidence of a witness of nitrous oxide intoxication, and the possibility that the evidence of particular witnesses had been contaminated by media reports and other external sources of information. The primary judge limited the areas of evidence to be tested to these. I can discern no error in that course. 5. A voir dire is not an opportunity for open-ended cross-examination of witnesses whose evidence may be adverse to a party, and it is not an opportunity to test evidence in the way that might occur when a matter is before the Local Court for committal, assuming the tests established by ss.91(3) and 93 of the Criminal Procedure Act 1986 are satisfied. 6. Here, the primary judge correctly identified the evidentiary issues relevant to a determination of the admissibility of the disputed evidence, and confined oral evidence to those issues. There was no denial of procedural fairness and no error in that approach. 7. The appellant appears to rely upon a paragraph in his Honour's judgment, where he referred to the fact that a particular witness (CP) had not been cross-examined on a particular issue, as demonstrating a lack of procedural fairness. I regard that paragraph as no more than his Honour noting the limitations that applied at the voir dire hearing, where witnesses were not tested on every aspect of the evidence each could give. I do not read the two sentences of that paragraph as demonstrating or even suggesting a denial of procedural fairness. 8. This ground is not encompassed by the certificate granted by the District Court and leave is required to advance it. I would not grant leave. Ground 13: His Honour erred in finding that there was no substantial risk of contamination of evidence having regard to the risk of affectation by Nitrous oxide, collusion, contamination and publicity. 1. This ground was pleaded as ground 13, but referred to in the appellant's written submissions as ground 9. 2. In support of this ground, the appellant contends that a different conclusion should have been reached by the primary judge in his consideration of the possibility that the evidence of the complainants and tendency / coincidence witnesses had been contaminated, but no House v The King error is identified. It is not suggested that his Honour acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, made a mistake of fact, or did not take into account some material consideration. 3. Having reviewed the evidence and the judgment delivered on 5 December 2014, I can see no error. His Honour very carefully and thoroughly considered the possibility of the evidence of individual witnesses having been adversely effected by nitrous oxide intoxication and concluded – correctly in my view – that there was nothing in the evidence before him to lead to a conclusion that the evidence of alleged assaults was necessarily based upon nothing more than fantasy. 4. He carefully considered all evidence that could give rise to a suggestion of concoction, but – again, correctly in my view – determined that, in all but one instance (where the evidence was excluded), there was no realistic possibility that the evidence had been concocted. He similarly considered the questions of publicity and possible contamination of evidence, but found no basis upon which to exclude the evidence of the complainants and tendency / coincidence witnesses. 5. I have not found any error in the approach of the primary judge to his task. 6. I would dismiss this ground. Orders 1. The orders I propose are these: 1. Leave to appeal on grounds 7, 9, 10, and 12 is refused. 2. The appeal is dismissed. The Questions Posed by the Primary Judge 1. I would answer the questions posed by his Honour as follows: 1. No 2. Yes 3. Yes. ********* Endnote 1. The averment of these counts is in terms inconsistent with the section that creates the offence. Nothing turns on that for present purposes, although it will need to be corrected prior to any trial. Amendments 27 July 2017 - Restriction lifted 26/7/2017. 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: 27 July 2017