District Court New South Wales Medium Neutral Citation: R v Christopher Best [2015] NSWDC 180 Hearing dates: 20 July 2015 to 23 July 2015 Decision date: 24 July 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Tendency evidence permitted to be adduced by Crown; application for separate trials dismissed. Catchwords: Interlocutory applications; tendency evidence; joint trials Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Cases Cited: BJS v R [2011] NSWCCA 239 BP v R [2010] NSWCCA 303 DJW v R [2015] NSWCCA 164 DSJ v R [2012] NSWCCA 9 FB v R [2011] NSWCCA 217 JG v R [2014] NSWCCA 138 Jones v R [2014] NSWCCA 280 Qualtieri v R [2006] NSWCCA 95 R v Colby [1999] NSWCCA 261 R v Fletcher (2005) 156 ACrimR 308 R v Lockyer (1986) 89 ACrim R 457 R v PWD [2010] NSWCCA 209 R v Shamouil (2006) 66 NSWLR 228 R v XY [2013] NSWCCA 12 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) Christopher Best (Accused) Representation: Counsel: W Creasey (Crown Prosecutor) T Evers (For the Accused) Solicitors: File Number(s): 13/6824514/33557 Publication restriction: S 7 Order for Non-publication of Complainants' names Judgment on application for separate trials and tendency evidence Introduction 1. The Indictment contains 12 Counts against the accused. Count 1 relates to KR, Counts 2, 3, 7 and 12 relate to BR, Counts 4 and 8 – 11 relate to SR, and Counts 5 and 6 relate to BLR. 2. The four complainants are siblings. KR was born on 24 December 1998, BLR was born on 29 May 2001, SR was born on 26 July 2002, and BR was born on 17 December 2003. The accused was their step-father and at the relevant times the family lived at Muswellbrook. 3. The accused applies to have the various Counts on the Indictment severed and the allegations of each of the complainants dealt with by way of separate trials. In opposing that application, the Crown seeks an order that it is entitled to adduce evidence of a tendency of the accused, pursuant to s 97 of the Evidence Act 1995. The Crown has given notice of that application in a Tendency Evidence Notice dated 24 February 2015. Paragraph 2 of that Notice states: "2 A tendency sought to be proved is his tendency to act in a particular way, namely, to have a sexual interest in children that are in his care, to penetrate the anus of children who are in his care and to touch children in his care in a sexual way." The Indictment 1. The Indictment contains the following Counts: Count 1 – Sexual intercourse without consent, person under 16 (on or about 19 August 2009). This count concerns KR who was 11 years old and the particulars allege that the accused inserted his penis into the complainant's anus. Count 2 – Sexual intercourse with person under 10 and under authority (between 17 December 2009 and 6 November 2012) This count concerns BR who was six, seven, or eight years old. The particulars allege that the accused inserted his penis into the complainant's anus. Count 3 – Sexual intercourse with person under 10 and under authority (17 December 2009 – 6 November 2012) This count concerns BR who was six, seven or eight years old. The particulars allege the accused licked the complainant's vagina. Count 4 – Sexual intercourse without consent, person under 16 (17 December 2009 – 6 November 2012) This count involved SR who was between six and 10 years old. The particulars allege the accused licked the complainant's vagina. Count 5 – sexual intercourse without consent, person under 16 (17 December 2009 – 6 November 2012) This count involved BLR who was between eight and 11 years old. The particulars allege the accused performed fellatio upon the complainant. Count 6 – sexual intercourse without consent, person under 16 (17 December 2009 – 6 November 2012). This count concerned BLR who was between eight and 11 years old. The particulars allege the accused inserted his penis into the complainant's anus. Count 7 – indecent assault person under 16 (17 December 2009 – 6 November 2012 This count concerned BR who was six, seven or eight years old. The particulars allege the accused rubbed the complainant's vagina. Count 8 – sexual intercourse, person under 10 and under authority (17 December 2009 – 6 November 2012) This count involved SR who was aged between six and 10 years old. The particulars allege the accused inserted his penis into the complainant's anus. Count 9 – indecent assault, person under 16 (26 July 2009 – 6 November 2012) This count concerns SR who was aged between six and 10 years old. The particulars allege the accused touched the complainant upon her vagina, underneath her clothing. Count 10 – indecent assault, person under 16 (26 July 2009 – 6 November 2012) This count involved SR who was aged between six and 10 years old. The particulars allege the accused placed his penis upon the complainant's vagina. Count 11 – indecent assault, person under 16 (1 September 2009 – 6 November 2012) This count concerned SR who was aged between six and 10 years old. The particulars allege the accused rubbed the complainant's vagina under her clothing. Count 12 – indecent assault, person under 16 (1 October 2012 – 6 November 2012) This count concerned BR who was eight years old. The particulars allege the accused rubbed the complainant's vagina. Relevant Legislation 1. Section 29 of the Criminal Procedure Act 1986 provides relevantly as follows: "(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. … (3) Proceedings related to 2 or more offences or 2 or more accused persons 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." 1. Section 21 of the Act provides the power for the court to order separate trials. It provides relevantly as follows: "21 … (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment. The court may order a separate trial of any count or counts on the indictment … (4) An order under this section may be made either before trial or at any stage during the trial …. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes." Application for Separate Trials 1. The defence applies to sever the Indictment in such a way as to proceed with the allegations of each of the complainants in separate trials. The Crown seeks a joint trial of all counts on the Indictment on the basis that the evidence in relation to each count is cross-admissible against the accused in relation to the other counts. 2. The basis of the Crown's contention as to cross-admissibility of the evidence of each of the complainants is contained in a Tendency Notice served on the accused pursuant to s 97 of the Evidence Act 1995. The tendency which is sought to be proved is set out in [3] above. 3. The Notice set out the evidence upon which the Crown intends to adduce as the substance of that tendency as interviews with KR, BR and SR. Relevant principles to be applied on application for severance of indictment 1. In BJS v R [2011] NSWCCA 239, Basten JA, with whom R S Hulme and Hall JJ agreed, stated: "8 In Ludlow v Metropolitan Police Commissioner [1971] AC 29, at 39, Lord Pearson cited with approval a statement in Reg v Kray [1970] 1QB 125 at 130-113: ' … Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.' 9 After referring to that principle, Gibbs CJ in De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 at 2 noted an established line of authority in cases involving sexual offences that 'the charges should not be tried together if the evidence on one count is not admissible on another count': citing Sutton v The Queen [184] HCA 5; 152 CLR 528 at 531. In De Jesus, Brennan J (at 7) and Dawson J (at 10) accepted that approach, without adopting categorical language. 10 Dawson J in De Jesus noted that the concept of a 'series' of offences appeared to impose an additional characteristic beyond the fact that the offences must be of the same or a similar character, while noting that similarity is itself a feature capable of enabling the offences to be described as a series, quoting Lord Pearson in Ludlow at 39. 11 The general principle that there should be separate trials unless the evidence to be called in respect of one count is admissible in respect of another, was accepted without demur by the parties. Accordingly, the motion for separate trials was effectively to be determined by a ruling on the admissibility of the evidence. In DAO, Spigelman CJ identified the fact that 'what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave': at [16]. However, his Honour also acknowledged a countervailing consideration at [17], namely that: ' … the decision is a pre-trial ruling of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial. This is not a case in which this Court is asked to micromanage the conduct of a trial, nor does it involve intervention in the course of a trial, nor is it an appeal which would lead to delay. Furthermore, if the ruling is in error, it is of a character which, assuming a conviction, would almost inevitably lead to a successful appeal and, probably, a new trial." 1. The question of severance of the Indictment and the granting of separate trials in relation to each of the complainants therefore turns on the court's ruling in respect of the tendency notice relied on by the Crown and therefore whether the evidence of each of the complainants is admissible in respect of all counts on the Indictment. The Tendency Evidence 1. Section 97 of the Evidence Act provides as follows: "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. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 1. Section 101 provides: "Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about [a defendant/an accused], or coincidence evidence about [a defendant/an accused], that is adduced by the prosecution cannot be used against the [defendant/accused] unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the [defendant/accused]. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the [defendant/accused]. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the [defendant/accused]." The Evidence 1. The Crown evidence on the voir dire comprised a copy of the Indictment (exhibit A1), a copy of the Tendency Notice (exhibit A2), and the transcript of a number of interviews and statements of the children (exhibits A4 to A12), together with a statement of Maddison Walker (exhibit A13) and two statements of Jennifer Walker (exhibits A14 and A15). Two statements were relied on from the childrens' mother (exhibits A16 and A17) and a chronology of when the various statements and interviews with the complainants were taken (exhibit A18). 2. The purpose of the voir dire was limited to the issues of concoction and contamination of the complainants' evidence. However, it is necessary to set out the relevant evidence contained in the various records of transcripts of interview and statements which the Crown relied on to support the tendency contended by it. 3. The transcript of the record of interview with KR on 15 November 2012 contained the following: "Q32: K, what did he do to you? A: I can't. Q33: Is this really hard for you to talk about? A: (No audible reply) Q34: Tell me why it's hard? A: Because I don't like what he did. Q35: Pardon? A: I don't like what he did. Q36: … Do you think you can tell me what it is? A: He raped me. Q37: Okay. Where did this happen K? A: At home. Q38: When you say, at home, what's the address of that house? A: 6 Jersey Place. … Q40: Okay when did this happen? A: When I was in year 5. Q41: Okay K, I understand this might be really hard for you but because I wasn't there when you were in year 5 and at home and Chris raped you, tell me everything that happened from the start to the finish? A: When Mum was working in UnderCoverWear and she went to a conference and in a big hotel called Crown Plaza I think then she was gone for a couple of days and he took us to the shops to get some dinner and lunch and us kids were mucking around … and he said when we got home he was going to kill us, have a flogging … Q47: What happened next? A: He came to my room, closed my door a little bit. Q48: What happened next? A: Then he came in behind me and hit me on the bum and then he— Q49: What happened next? A: He put his thing in my bum and I fell on the ground near my coffee table and he said, he tried to take my pants off and he said, 'Show me your vagina', and I was screaming and I ran out into the toilet, locked myself in there and I was crying." 1. When further asked about this incident, the complainant told the interviewer that when she was lying on her bed the accused had hit her "really hard on the bum" with his hand. She then said: "Q117: Okay, after he hit you, what happened then? A: I heard his pants unzip and— Q118: What was he wearing? A: I don't remember. Q119: What made you think that they were his pants unzip? A: Cause I heard the sound of what the zipper makes. Q120: Yeah, what happened then? A: (No audible reply) Q121: After you heard his pants unzip, what happened then? A: He put his thing in my bum. Q122: He put his thing, what do you mean by his thing? A: Private part. Q123: His private part. Does that have another name? A: Penis. Q124: Did you see him do that or something else? A: I didn't see him do it, he just did it. Then I fell onto the ground and hit my back on the coffee table and he tried to rip the front bit of my pants off. Q125: Okay. So we'll just concentrate on that little bit for a while. You told me he put his penis, just so we're clear, what did he do with it? A: He put it in my bum. Q127: Was it on the outside, the inside, or something else? A: The inside. Q128: How do you know it was the inside? A: Because I felt it. Q129: It's okay. When you say you felt it K, what did you feel? A: Just felt going up my bum. Q134: When he put his penis in your bum, whereabouts were you? A: On the bed. Q136: Can you describe that for me? A: Like my knees were like, my knees were a little bit off my, a bit off the bed. Q137: Sorry, your knees were … A: On the ground. Q138: And how was the rest of your body? A: On the bed. Q194: K, is this the only time that this has happened with Chris or has it happened on other occasions. A: Yeah. Q195: How many more times do you think? A: I don't know. Q196: Is there another time that you can remember to tell me about? A: Well I was in my room, I think it was last year or the year before, something like that and I was talking to SR about girlie stuff and asked her if he did ever do anything to her and she said "yes". Q197: Okay. A: She said "Yeah", she said he put his penis in her vagina and she told him to stop but he wouldn't and then when she got out she went to the toilet and she said that she had red stuff in her underwear. Q198: Okay. Before I ask you questions about that, okay, has Chris ever done something like this to you on another occasion? A: No. Q199: It was only once? A: (No audible reply) Q200: Okay, so you told me that you were talking to SR about girlie stuff, can you remember what she said to you exactly? A: She said that he put his penis in her private area, she told him to stop but he wouldn't and she was crying and she said that her door was closed cause he told mum that he was helping them fold their clothes to their drawers. He stopped because someone was … the hallway and she said she went to the toilet and peed and then put her undies on, then she felt like stuff … she checked it was like red kind of stuff. And she said that she, so she wiped again and she said she had blood." 1. In relation to BR, KR's record of interview contained the following: "Q210: Sorry, what happened with BR? A: We had a big girl talk when I was playing … and braiding their hair and she said when Mum was gone he makes, he makes her suck his penis. Q211: Do you remember the exact words she used? A: 'He made me suck his penis'. Q214: Did she tell you that anything else had occurred? A: (No audible reply) Q215: What else did she tell you K? A: That he put his penis in her bum hole. Q216: Do you remember exactly what she said? A: 'He once put his penis in my bum hole and I was crying and he wouldn't stop'. Q217: Did she say anything else? A: 'And it really, really hurt'." 1. In relation to KR telling her mother, the transcript contains the following: "Q260: In relation to what you first told us about what happened in the bedroom, is there anything else you can think to tell us about that? A: I tried telling my mum, my sister got the girls and we tried to tell mum and she wouldn't believe us and she told us to shut up and go to our bedrooms for time out. Q261: When did you try and tell mum? A: A couple of months later. Q263: Yeah. Do you remember exactly what you said to her? A: 'Dad's been raping us mum'. Q264: And what did she say? A: She told us to shut up because he wouldn't do that, it's not true. Q265: And what did you do? A: Yelled at her. Q266: What did you say? A: I said 'He has and I'm not lying' and then I went to my bedroom. … Q270: You know you said that SR told you what had happened, was anyone else there when SR told you what happened to her? A: Only by talking about it one time we all told each other what happened. Q271: Okay and when BR was telling you, you said you were doing her hair and she told you, was anyone there when she told you? A: I think SR was there too." 1. KR gave evidence on the voir dire. She said that she had first spoken of these matters to Maddison Walker and then Jennifer Walker. In her record of interview on 15 November 2012 she had told the Police Constable that she had spoken to her mother in the dining room at home together with BR and SR. She had told her mother that, "Dad's been raping us" and her mother had said, "Shut up. He would never do anything like that. Go to your rooms". 2. Before that conversation she had spoken to BR and SR together in her bedroom and she had said to them "We should tell mum". KR gave evidence that both BR and SR were terrified of telling their mother, they were upset and crying. When asked why, she said they were terrified as to what Chris could do to them, namely, that he would hit them. 3. KR gave evidence that she had had separate conversations with BR and SR. The first was with SR in her bedroom when SR told her that she thought that she had gotten her period. 4. KR said she also had a conversation with BR in her bedroom where BR had told her that he had put his penis into her bum hole. A week or so later the conversation between the three of them had taken place and on the same day they spoke to their mother. That was some months before she spoke to the police on 15 November 2012. 5. Two or three weeks after she had been interviewed by the police, she had had a sibling visit with her siblings at Maitland pool. BR and SR did not say whether they had spoken to the police, and she never told them what she told the police. A conversation had taken place in a cubicle in the showers between the three sisters in which BR and SR told her that they were too scared to tell anyone what had happened because of what Chris could do to them. When asked how many times she had spoken to her mother about it, she said only once because "she didn't believe me". 6. KR was cross-examined. It was established that she had run away from home on 1 November 2012 and had continued to live with Jennifer Walker and her daughter Maddison ever since. Ms Walker made a statement to the police before her interview on 15 November 2012. KR had told Maddison or her about the accused on 8 November 2012. 7. When asked how often she had seen her sisters, BR and SR, she said that she had not seen them since 17 March 2014. She had seen them four or five times since 1 November 2012. She always saw them together with her other siblings, at Maitland Park, Branxton Pool and a DOCS house in Mayfield. 8. She had told Detective Senior Constable Arnold in her statement that she had a visit with her brothers and sisters "on Tuesday or were going to have on Tuesday". She had no memory of that visit. She then said that she saw her five siblings at Branxton Pool on that day. She had no recollection of what they talked about. She had not seen her mother since she left home at all. She gave the following evidence: "Q: Apart from the time that you say that you spoke to your mum and you said that Chris had raped you? A: Yes. Q: Together with the girls, did you ever speak to either of the girls about what had happened to you? A: Not in detail. Q: When you say not in detail, what do you mean by that? A: I told them that he had raped me but I didn't go into how or when." 1. She gave evidence that she told her mother some time in 2012 or 2011. She had not told BR what the accused had done to her. She was in year 5 when the incident had occurred. That was in 2009, and it was a couple of years after that that SR told her what had happened to her. She had then told SR what had happened to her. She gave this evidence about SR: "Q: When she told you that something had happened to her, what did she tell you had happened? A: She told me that Chris had put her – put his penis into her vagina and it hurt. Q: Did she tell you when that had occurred? A: No. Q: Did you ask her some questions about it? A: No." 1. That conversation took place in SR's bedroom, she was bleeding and thought she had her period. She was not sure when the conversation about the accused putting his penis into her vagina took place. It was not at the same time as the conversation that SR was bleeding and wanted a pad because she thought she had her period. 2. KR was asked about her statement to the police that she had been talking to SR about "girlie stuff" and that she told the police "I asked her if he'd ever did anything to her". She agreed that she asked her that and SR told her what had occurred. She did not say that he had done it to her as well. That was the only question she asked SR. KR then gave evidence that she told SR that the accused had raped her. SR did not ask her any questions. 3. KR agreed that they had lived in a small fibro house and the bedroom shared by BR and SR was a room away from hers. She was asked: "Q: So did you ask SR any questions, did it hurt, how often did he do it, anything at all? A: I did ask her if it hurt, she said 'it hurt a lot'. Q: Did you ask her when it happened? A: No. Q: Where were you, did you ask her where the rest of the family was? A: No. … Q: How long before or after you had that conversation with SR did you ask BR about what had happened? A: I'm not sure. Q: Is it the case that you don't remember any of the circumstances of how that conversation with BR took place? A: Yep. Q: Was SR present when you spoke to BR? A: I'm not sure. Q: Was BR present when you spoke to SR? A: No. Q: You're certain of that? A: Yep. … Q: Now, did you ask BR how long before you had that conversation with her, how long before that, that any incident with Chris had occurred? A: I don't know. Q: So you don't know when it was you had the conversation with BR? A: No. Q: Do you remember how long it was before you told your mum? A: A couple of months later, I'm not sure. Q: Well you said earlier in response to questions by me that you thought you may have had that conversation with BR more than a year before you told mum, is that right? A: I think so, yep." 1. KR was asked about her statement to the police when she was asked: "Q: You know you said that SR told you what had happened, was anyone else there when SR told you what happened to her?" And her answer was: "A: Only by talking about it one time, we all told each other what had happened." She then gave this evidence: "Q: So it's the case that you did in fact tell each other what had happened on that one occasion, is that right? A: Yes, but we didn't go into detail, I didn't go into detail. Q: The time that you had this one conversation together? A: Yep. Q: You said that was the day you told your mum? A: Yeah, I think so yep. Q: Where were you when you had this conversation together? A: I think we were mainly in my room, I'm not sure. Q: What were you doing at that time that you had this conversation together? A: I think we were doing our hair and makeup. Q: So just describe the circumstances that arose when you all talked together and then went and saw mum, just from the time, what happened? A: We were just talking and doing each other's hair and makeup. Q: Well, what then happened? A: I said, 'We should tell mum'." 1. KR was not sure how long this was after SR and BR had first told her. She gave this evidence: "Q: But it was months after both girls had said anything to you at all? A: I think so. Q: And you hadn't discussed it with them at all in that time? A: No, never told them what happened before that. Q: Well you said earlier that you said that he'd raped you? A: Yeah. Q: So you told SR that about a year before that when you asked SR if anything had happened to her? A: I'm not sure. Q: So did you ever check in that period between the time they first told you and the time you say you were all three of you together, at one time where you told each other what had happened, did you ever check whether anything else was happening to them during that period? A: No. Q: You didn't ask them any questions? A: No. Q: You didn't try to tell mum in that period? A: No, too scared to tell her. Q: What changed then, why did you decide to tell mum on that particular day? A: I don't know, I don't know." 1. KR said that both BR and SR were too scared to tell their mother. They were scared because Chris would hit them. The three of them went together to tell their mother who was in the dining room. She said to her mother "Mum, Dad's been raping us". She gave this evidence: "Q: Did your mother say anything to the girls? A: I'm not sure. She just told us to shut up and go to our rooms because he wouldn't do anything like that. Q: Well did your mother ask the younger girls a question at all? A: I'm not sure. Q: And why is it that you never tried to tell your mother again? A: Because she didn't believe us the first time, why would she believe us the second time." 1. KR was asked about when she saw her sisters at the swimming pool. She gave this evidence: "Q: Did they talk then about anything that had happened to them? A: No. Q: And did you say anything about, 'look I've made a statement and nothing has happened, you should make a statement'? A: No I said they shouldn't be scared of him anymore." 1. KR was asked about the sibling visits. She gave this evidence: "Q: But I take it during the times that you were at the park and playing that you all had time to have a chat to each other? A: No, not really we were just playing and swimming. Q: And you were in a park? A: Yeah. Q: And you were playing and I take it you weren't hanging around as a total group the whole time? A: No." 1. Detective Senior Constable Julie Arnold gave evidence. Through her was tendered a chronology which became exhibit A18. That document set out the dates of the various police interviews with the complainants. 2. In cross-examination Detective Senior Constable Arnold was asked about her saying to KR, during her record of interview on 15 November 2012, "And then you told us about your brothers and sisters and a visit that you had on Tuesday or were going to have on Tuesday". The Constable had no recollection of that conversation. 3. SR and BR were both interviewed at a DOCS office. They presented together at the Community Service Centre for their interviews. The Detective Senior Constable gave the following evidence: Q: Again, you have no knowledge of any detail of any meetings between any of the children over the last couple of years, is that correct? A: No, that's purely dealt with by Community Services, not police. 1. BR was interviewed on three occasions on 27 November 2012, 26 March 2013 and 14 March 2014. She was asked: "Q: What were the circumstances that these interviews came about? A: The first interview arose due to the report that we received through – to our office. The second interview I conducted to obtain further information, and the third interview was undertaken at the request from the DPP." 1. To the best of her knowledge, both BR and SR had remained living together during the entire period, after they were removed from home. 2. KR had provided a new statement very recently at the request of the DPP. 3. In re-examination, the Crown established that on 22 November 2012 the Detective Senior Constable commenced her interview with SR at 9.20am and suspended it at 9.47am, and after the interview was suspended, she commenced an interview with BR at 9.57am and that interview was completed at 10.45am. She then resumed the interview with SR at 10.50am until it was completed. She was asked: "Q: During that time, was there a time lapse between one being suspended and the other being commenced, did the girls have an opportunity at that point to talk to each other about – A: Not any specifics, it was just general banter." 1. In further cross-examination, it was established that Detective Senior Constable Arnold was present together with the girls during the suspension of the interview and there was no discussion about anything the police were interviewing them about. Evidence of SR 1. Transcripts of three interviews with SR conducted on 22 November 2012 (exhibit A8), 14 January 2013 (exhibit A9) and 14 March 2014 (exhibit A10), were relied on by the Crown. In exhibit A8, SR told police that the accused "does stuff to me" (Q146), which involved her body (Q154). She described an incident that took place in her bedroom when he touched her "rude part" under her clothes (Q202 and Q203). He then pulled off her underwear and was touching her with his hand, which she described as "rubbing kind of" (Q234). 2. In exhibit A9, SR told the police that the accused touching her happened more than once (Q31). She described another occasion when she was in her room and BR was present. She was reading a book and she described the accused "touching my rude part" (Q44). That occurred under her clothes (Q60). 3. On another occasion SR told the police she was in the lounge room of the house when the accused made her take her clothes off and he was touching her body (Q96 and Q97). She was asked: "Q108: What part of his body touched your rude part this time? A: His rude part." 1. She described the accused taking off his clothes and touching her with his "rude part". At first he was touching "my back rude part" (Q135) and then her vagina (Q138). 2. In exhibit A10 SR confirmed that on the occasion when she was in her bedroom reading a book the accused had touched her vagina (Q44). She then confirmed the incident in the lounge room involved the accused touching her vagina with his penis (Q60 and Q61). She said he touched her rude part with his penis "a lot of times" (Q67). 3. SR gave this evidence: "Q76: Okay, when Chris touched you how did you feel? A: Like, like it happened to everyone. Q77: Okay, did you see it happen to somebody else? A: No. Q78: How do you know it happened to somebody else? A: Um, I see, I saw it happen to … though. Q79: You did? A: … Q80: Okay, tell me about what you saw with BR? A: Um, he did the same thing to BR as well." 1. SR gave evidence that she and BR had been removed from the family home in November 2012, and that she and BR had been in the care of the same foster family ever since. She said she had conversations with KR about the things that had happened to her, and also with BR, before they were removed from the family home. She spoke to KR first. They had spoken about "that stuff was happening to us kids". The conversation took place in KR's bedroom. "Stuff" she described, "that we were being touched by Chris". She did not know when that conversation took place but it may have been one year before they left. She also spoke to BR, not long after the conversation with KR. She had no memory of what was said. 2. When asked how many times she spoke to her mother about it, she answered "We told her once but she didn't believe us". That took place approximately one year before they left, in the dining room. Present at the time were BR, KR, herself and her mother. KR spoke to their mother and told her "that Chris was doing stuff to us". She was asked: "Q: Did she use the words 'stuff' or did she use some other word? A: She told mum that Chris was touching us." 1. SR said she had spoken to KR about what had happened to her inside the home at sibling visits. She was asked: "Q: What did you speak about? A: About what happened, that it shouldn't have happened, but we haven't – it shouldn't have happened to us. Q: So who was present during these sibling meetings? A: Most of us kids, so my brothers and my sisters." 1. She had no memory now of what had been said during those meetings. KR and BR had not said anything about what had happened to them, nor had she said anything about what had happened to her. 2. In cross-examination, SR agreed she was aged 10 when she was removed from the family home. She had continued to share a room since that time with BR and they were very close. She was asked: "Q: And have you talked about the case that's going to court, the fact that you're going to court, have you talked about that with BR? A: Not since we went into care. Q: Not at all? A: Not really. Q: What about at the sibling meetings? A: Besides those." 1. SR agreed that they were not all together in one group the whole time at the sibling meetings that took place. 2. SR had never told her carer about what had happened. She had seen KR before speaking to the police on 22 November 2012, but KR had not told her why she was going to the police station or that she, KR, had been for an interview with the police. 3. SR gave evidence that the last time something had happened with the accused was a short time before she had been removed from the house. It occurred in her bedroom and she did not remember where her mother was. It occurred in the afternoon. 4. SR conceded that she had told KR that she and BR were being touched, however, she had assumed that BR was being touched as well, as it was only later when BR told her that. She recalled nothing of the conversation with KR. 5. SR agreed that KR, BR and herself had spoken to their mother just after Curtis was born on 7 August 2010, which was two years before they were removed from the home. It was KR's idea to talk to their mother and all three girls did that. When asked what her mother's response was she said "She didn't believe us". However, she could not remember what she said. She agreed with the proposition that KR had said "Chris has been touching us where he shouldn't". She agreed that in 2010 she was eight and BR was six years of age. 6. SR agreed that before her second interview, which took place at her carer's home, she had seen KR. She denied that BR ever told her that KR had told her anything. 7. She was asked about her interview at Q84, in which she said there was an incident when her grandmother was at home. She did not remember telling the police that. 8. SR was asked about her third interview on 14 March 2014. At Q76 she was asked "When Chris touched you how did you feel?" She was asked why she answered, "Like it happened to everyone". Her answer was: "A: Because he once told me that. Q: Sorry? A: He once told me that. Q: He once told you that? A: Yes. Q: What did he tell you? A: He said that it happens to every girl, everyone. Q: The question you were asked was how you felt? A: Yeah. Q: You're saying that he told you it happened to everyone? A: Yes. Q: You were then asked 'Did you see it happen to somebody else?' You said 'No', is that right? A: Yes." 1. SR was asked whether she had talked to her siblings about what had happened, and her answer was "Yes". She was then asked: "Q: So is it the reason that you gave that answer how you feel, like it happened to everyone, is it because other people, other siblings told you things? A: No." 1. SR said that after they had stopped seeing KR at sibling meetings, they did not talk about the things that had happened. 2. In re-examination, SR said she understood the word "assumes" meant "that you think it may or may not have happened". She was asked: "Q: So you're not in a position why you tell us why you think it may or may not have happened so far as BR is concerned? A: No." 1. SR did not remember what she had actually said to her siblings when she had spoken about things. SR was asked about her response to the police when asked what she had told KR, namely, "basically the same thing". When asked what she was referring to when she said "basically the same thing", she answered "I don't remember". Evidence of BR 1. The Crown relied on three transcripts of interviews conducted with BR on 22 November 2012 (exhibit A5), 26 March 2013 (exhibit A6) and 14 March 2014 (exhibit A7). In the first of those interviews (exhibit A5), BR made no allegations against the accused. In exhibit A6, she told the police that the accused had touched her in her rude part at home (Q32 and Q33). She identified her rude part as her vagina (Q48) and told the police that he would touch her by putting his hand up her skirt (Q55) and at the same time, he would play with his rude part (Q57). 2. BR told the police that the accused had touched her and SR when they were both together (Q65 and Q66), that he had mainly touched SR (Q67) and that he would make her scream by "putting his willy in her bum" (Q69 and Q70). He did this to SR whilst she was lying on the lounge and she had to sit on the lounge (Q86). 3. BR volunteered that the accused had done this to BLR and that she had seen him do it (Q97 and Q98). She was asked: "Q99: Tell me about what you see him do to Blake? A: He shoves his doodle in Blake's bottom and he tells Blake to relax and says it doesn't hurt as much. Q106: And what were you doing when this was happening? A: I had to sit on the bed and watch. Q111: Okay, did Chris ever do something like that to you? A: Yes. Q112: Tell me about that? A: He would shove his doodle in my bottom." 1. She described that as occurring in the accused's and mum's room and she was laying on her stomach. She gave this evidence: "Q128: Tell me about him, what he did with his doodle? A: He shoved it in my bottom. Q129: Ah hmm. And did you feel anything? A: Yes. Q130: Tell me about that? A: It hurt. Q131: Hmm. A: And I was screaming and crying. Q132: Do you remember what you said to him? A: I said 'stop'. Q133: Did he say anything to you? A: He said 'shut up'. Q134: When he put his doodle in your bum, what else, did anything else happen? A: He would push down hard. Q135: Ah hmm. And then what happened? A: And I would scream and cry." 1. BR told the police that the accused licked her rude part (Q147 to Q154), and she saw him doing the same to SR (Q154 and Q176). She also observed him suck BLR's rude part (Q179). 2. BR gave the following evidence about telling her mother: "Q191: Tell me about when you told mum? A: She thought we were just joking, cause we didn't like Chris and she knew that. She thought we were just joking so she would dump him. But she told us, 'Stop joking around. You know if I dump him, he will take Curtis and Toby'." 1. In her third record of interview on 14 March 2014 (exhibit A7), BR told the police officer that the accused had touched her vagina on "heaps" of occasions. 2. On the occasion in the lounge room, the accused had touched her on the vagina (Q35) and she had seen him touch SR (Q69) and tried to put his rude part in SR's bottom (Q72). SR started crying because he was hurting her (Q78). 3. BR was asked about what she had previously told the police about observing the accused to put his doodle in BLR's bottom and she had to watch. She said that happened on two or three occasions (Q96). After describing one incident, she said that the accused then sucked BLR's doodle (Q111). 4. BR described the occasion on which she had previously told the police the accused inserted his doodle in her bottom. She told them that it hurt and that she kept saying "Ow, stop it", cause it really hurt (Q155). He also licked her vagina on that occasion (Q171 to Q179). He also licked her vagina whilst she was standing in the kitchen (Q204). On another occasion she observed the accused to suck BLR's doodle (Q215 to Q220). 5. BR gave evidence that before she was removed from the home she had told her sister KR and her mother what had happened to her. She told KR at home, but could not remember what she said to her. 6. BR gave evidence that she and KR spoke to their mother in the dining room, but no one else was present. KR spoke. This was after the second time she had told KR what had happened. KR had said that she wanted to tell mum and BR said "No", so KR grabbed her hand and made her sit on her lap while KR told her mother. 7. BR had a memory of speaking to KR about this on around three or four occasions. She did not have a memory of when they occurred. She spoke to her mother more than once about it. KR did the talking, but she could not recall what was said. She described her mother's response as "she didn't believe us because we didn't like him". 8. BR gave evidence that the first time KR and she had spoken to their mother was in her mother's room. Just KR, mum and BR were present and KR spoke again. She had no memory of what was said. It was a couple of years after that that they were removed from the home. 9. BR gave evidence that she did not think she saw KR before her first interview with the police. She thought she did see her before her second and third interviews. BR said SR had told her about things that had happened to her before they left the home, although she did not have a clear memory of the conversation. 10. After they were removed from the home, BR gave evidence that she and SR did not talk about things that she said happened to her, or things that SR said happened to SR. 11. In cross-examination, BR said that she had not communicated with KR since last year. She was not sure why they had not been in touch. She was not sure how often she saw KR once they were removed from the home. She gave evidence that she spoke to KR when they were alone in the change rooms at the pool, and also in the park. She was asked whether during the sibling visits did any of them talk about the accused, which she denied. She was asked: "Q: Have you been told by anyone that you shouldn't speak to anyone about Chris or your step-dad about what he's done? A: Just that it's something you keep to yourself and not tell anyone. Q: Who told you that? A: Janelle." 1. BR then said that she had not spoken to SR about it. She gave this evidence: "Q: So in all the time that you've been living away from your place at Muswellbrook, are you saying that at no time have you ever spoken to any of your siblings about what Chris did, anything about it at all? A: That's correct." 1. In her first interview BR had told the police that her dad did not smack her any more. The last time he did so was "ages ago and he didn't any more". She was asked what she meant by "ages ago" and said "he hasn't in a while". He had smacked her definitely after she had spoken to her mother the second time. 2. Before her second interview, the Police Constable Julie had told her why she was being interviewed. When asked what she had said, BR answered: "A: I think she said we're going to talk about what he, he did when we lived with mum." She was asked: "Q: How was it that Julie knew that something had happened? A: I'm not exactly sure but I think KR told her. Q: Well when you say you think KR told her, how do you know KR told her? Did KR tell you that? A: No, I, as I said, I'm not exactly sure, but I think KR told her. Q: And I take it you think that is this correct, that it is because you and KR had discussed it? A: Yes." 1. BR said it was a long time between the occasions when she spoke to her mother, which she thought was a couple of months. On the first time she had told KR while she was doing her hair. KR said she wanted to tell mum. She did not know where SR was when she was talking to KR. When asked what happened the first time she told her mother she said: "A: I told her and she said that we should go and tell mum. I said that I didn't want to the first time as well because I thought he'd get mad, but she made me. Q: When you say she made you, what did you do? A: It was like kind of, she sort of like pushed me out of the room." 1. BR was not sure what KR had said to her mother because she was not listening. She recalled telling police that she said that her mother thought that she was joking. That was "because she told us". When asked what did she say, BR answered: "A: 'That's not a very funny joke.'" 1. BR was asked: "Q: After KR told your mum, did your mum ever say to you that she knew it was true? A: Yes. Q: When did she do that? A: I can't remember when, but I know she said that she heard us when we were in our room. Q: When she said she heard you, you mean you and Chris? A: Yes. Q: Was that before or after you talked to her the second time? A: I think it was after. Q: So how did the second time come about? What happened to make you go a second time? A: All I can remember was KR she dragged me by the hand out to mum in the dining room and sat me on her lap. She could not remember what KR had said, but it was about what Chris had done." 1. BR gave evidence that after her mother had told her that she had heard her and Chris in the bedroom, that Chris continued to do the same things to her when her mother was at home. She agreed that she told the police that Chris had told her not to tell anyone and she had told KR and her mother. She said that SR sometimes told her what Chris had done to her, but did not know when the first time was. 2. In re-examination BR said it was equally hard to tell the police and her mum and KR about the things that had happened. She was asked: "Q: Can you tell me now why it is you never said anything in your first interview to the police about these things? A: Because he threatened to kill my family." 1. By leave, BR was further cross-examined. She gave this evidence: "Q: You said you didn't tell the police the first time because Chris threatened to kill your family? A: Yes. Q: Didn't you tell the police that Chris told you not to tell anyone or he would kill your family? A: Yes that's what he said. Q: So that it wasn't just that Chris said to you not to tell the police or he will kill your family, is that right? He— Q: He said nothing about police when he said to you don't tell anyone or I will kill the family? A: Yes. Q: You agree he didn't say anything about, specifically say the police? A: That's correct." Evidence called by the Accused 1. The accused tendered a handwritten statement of Robert Rogers dated 2 July 2015 from pages 86 to 89 of the police notebook, which was admitted without objection as exhibit 1. 2. The defendant also tendered the DVD of the first interview with BR on 22 November 2012 (exhibit A19). During that interview, the complainant made no allegations against the accused. Legal Principles with respect to adducing Tendency Evidence 1. In FB v R [2011] NSWCCA 217, the Court said at [23]: "It is clear law that evidence that a person has or had a particular tendency is adduced in order to render more probably the proposition that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind. The section proceeds on the basis of inferential reasoning that people behave consistently in similar situations. The evidence is used to provide a foundation for an inference to that effect. As Simpson J (with whom McLellan CJ at CL agreed) in R v Chittadini [2008] NSWCCA 256 said: "Tendency evidence is tendered to prove (by inference), that because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person on an occasion relevant to the proceedings, acted in a particular way (or had a particular state of mind)." 1. Pursuant to s 97(1)(b), the court must find that the evidence has "significant probative value". A further test is then raised by s 101 (2) of the Evidence Act 1995 (NSW), namely, that the evidence is not to be used against the defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". 2. "Probative value" is defined in the dictionary to the Evidence Act as follows: "'Probative Value' of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 1. The phrase "significant probative value" was considered in R v Lockyer (1986) 89 A Crim R 457. There the court said "significant" means "important" or "of consequence". It means more than "mere relevance" but something less than a "substantial degree of relevance". 2. The fact or facts in issue in this trial are whether the accused committed the offences contained in the indictment. The significance of the probative value of the evidence in question therefore arises from the importance that evidence may have in establishing those facts. 3. In R v Shamouil (2006) 66 NSWLR 228 the New South Wales Court of Criminal Appeal held that in assessing the probative value of evidence under s 97(1)(b), a trial judge should not to take into account issues of the credibility or the reliability of the evidence under consideration; that was a matter for the jury. That decision was confirmed in DSJ v R [2012] NSWCCA 9 and also R v XY [2013] NSWCCA 12, both decisions of the Full Bench of the New South Wales Court of Criminal Appeal. 4. It is also clear from the authorities that tendency evidence need not be based on striking similarities in the evidence of witnesses or even closely similar evidence. In R v PWD [2010] NSWCCA 209, Beazley JA (as she then was) reviewed the authorities concerning tendency evidence and concluded that "the authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities or even closely similar behaviour". Her Honour went on to hold, at [88], that the evidence of the complainants and the other tendency witnesses in that case was capable of "rationally affecting the assessment of the probability of the respondent having engaged in the conduct alleged and had a sexual interest in doing so". That evidence was found to have significant probative value. 5. It is also clear that the evidence may be adduced to establish a pattern of behaviour, or a modus operandi in the accused's conduct – see R v Fletcher (2005) 156 A Crim R 308 at [67] per Simpson J. What is required pursuant to s 101(2) is a balancing exercise, by which the court is to compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence were admitted. Usually, for prejudice to be established there must be shown to be a danger that the tribunal of fact will use the evidence in a way logically unconnected with the issues in the case – see R v Lockyer, supra, at p 460. Hence, consideration must be given to whether there is any real risk of misuse of the evidence by a jury, for example, an irrational, emotional or illogical response, or giving undue weight, or distracting them. 6. Here, the accused opposes the Crown application on two bases, namely, that the evidence has no significant probative value, and secondly, the probative value does not outweigh the unfair prejudicial value of the evidence. The accused further submits that even if the evidence were found to be admissible, it should still be excluded because of the possibility of concoction and/or contamination by each of the complainants. 7. The question of whether the evidence on the voir dire establishes concoction or contamination is relevant to the assessment of whether the evidence has significant probative value. Whilst pursuant to Shamouil, supra, ordinarily the court undertakes a restrictive approach to the circumstances in which reliability and credibility of the witnesses may be taken into account in determining the probative value of the evidence, the restricted decision of the Court of Criminal Appeal in Jones v R [2014] NSWCCA 280 leaves open the possibility in a given case where the evidence so warrants, of a court assessing the weight of the evidence in respect of concoction and contamination – see Jones, per Bellew J at [86] – [89]. At [90] his Honour said: "90 It is conceivable that there may be cases in which evidence of concoction and contamination give rise to competing inferences. It may be that in such a case, those inferences are relevant for determination of the probative value of the evidence. …" 1. His Honour went on to identify, at [93], a number of factors which may bear upon a determination of whether evidence has been concocted, or is contaminated. They were, the relationship between the complainants, the opportunity for concoction and thirdly, motivation to concoct such evidence. However, his Honour went on to state that the mere existence of a relationship between each of the complainants does not of itself support a finding of concoction or contamination. 2. The accused has submitted that the onus is on the Crown to negate any reasonable possibility of concoction or contamination, and that if such reasonable possibility is established on the evidence, then the evidence should be excluded, relying on R v Colby [1999] NSWCCA 261. Further, the accused submitted that even in the event of innocent collusion or contamination, unless the Crown negates a real chance of contamination going to the substance of the evidence, then the evidence should not be admitted as tendency evidence, relying on BP v R [2010] NSWCCA 303. 3. In another restricted decision, DJW v R [2015] NSWCCA 164, R A Hulme J (Simpson and Bellew JJ agreeing), referred to the court's decision in Jones v R, referred to above, and in particular [87] – [90]. His Honour referred to those paragraphs as strictly obiter and said that competing inferences were potentially relevant to the assessment of probative value pursuant to s 97 (referring to JG v R [2014] NSWCCA 138, per Simpson J). In that case, even accepting that the issue of possible concoction or contamination gave rise to a competing inference in the assessment of whether there was significant probative value, her Honour found the trial judge had not erred in finding significant probative value. Determination 1. The Crown submitted that any issues of concoction, contamination and/or inconsistencies between the evidence of the complainants relied on were matters for the jury. Whilst the authorities left open an exceptional case category where credit and/or reliability could be assessed by the court in determining significant probative value, this was not such a case. The Crown submitted that the evidence on the voir dire established no detailed discussion between the complainants of what transpired, the evidence was of significant probative value and substantially outweighed any prejudicial effect it may have on the defendant. 2. The Crown further submitted that irrespective of the court's ruling on tendency evidence, Counts 3, 4, 5, 7 and 8 should be heard together in any event. 3. The accused, relying on the judgment of Howie J in Qualtieri v R [2006] NSWCCA 95 submitted that tendency evidence could not be adduced for the purpose of bolstering the Crown case in relation to the particular complainant. At [118] his Honour said: "On the other hand, evidence of the relationship between the accused and the complainant that is admitted for the purposes of showing that the accused had a tendency or propensity to have sexual relations with the complainant will almost never be found in the complainant's account of his or her relationship with the accused. That is because the complainant's account of the relationship would rarely have sufficient probative value to overcome the pre‑condition of admissibility for tendency evidence in s 97 and s 101. It is presumably the lack of sufficient probative value of the complainant's evidence to prove a tendency on the part of the accused that led McHugh and Hayne JJ in Gipp v R (1998) 194 CLR 106 at [76] to require that evidence of the complainant to be used for this purpose to be proved beyond reasonable doubt. Tendency evidence generally does not have to be proved to that standard. Evidence of the accused's sexual interest in the complainant will usually be found outside of the complainant's evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally." 1. The accused submitted that there was evidence based on the relationship of the complainants, their opportunity for collusion and their motive (namely, they did not like the accused and wanted their mother to break up with him). The accused submitted that the evidence of KR and of BR was of a similar kind. Where BR had made no allegations against the accused in her first interview, a clear inference of collusion arose in respect of the allegations she raised in her second interview with the police. There was opportunity at the sibling meetings that had taken place prior to that interview and in particular, where KR and BR had been together in a locker room at the pool. Further, BR gave evidence of observing the accused carry out offences on both SR and BLR, whereas SR had given a different account of his conduct and BLR had raised no allegations at all. In the case of BR, it was submitted that her perception of the accused's conduct was linked to punishment of herself and the other children. 2. The accused, by his Counsel, referred to numerous inconsistencies in the evidence. Many of those inconsistencies are plain on the extracts of the statements, and the evidence given on the voir dire, set out above. For example, there were inconsistencies between the complainants as to whether their mother was told on one or two occasions, and whether two or three of them were present on each occasion. The accused relied on the content of KR's record of interview where at Q247 she told the girls "that he raped me" and BR subsequently said, "He raped me", and then described anal penetration. In fact the question and answer were: "Q247: Did you tell anyone about what happened in your bedroom? A: I told the girls that he raped me and that's all." 1. I accept, as is clear from the above, that there are inconsistencies between the statements made to the investigating officer between the complainants KR, BR and SR. I also accept that there were opportunities at the sibling meetings that took place up until March 2014 for the complainants to discuss these matters together. It could also be accepted that there was motive on the part of the complainants, namely, their dislike for the accused. However, notwithstanding those matters, there is no evidence of collusion or contamination of the various complainants' evidence, demonstrated either on the face of the evidence or inferentially. Rather, on each occasion that it was put to her, KR denied telling the other children what had in fact happened to her, other than the general allegation that she had been raped by the accused. Similarly, both BR and SR either denied having detailed discussions about what had occurred to them, or had no memory or recollection of what was said on any of the occasions. One occasion was isolated when the three girls were together, namely, in the locker room at the pool, but the evidence did not establish that any discussion of the detail of the allegations took place either between KR and BR, or all three of the complainants at that time. 2. The court may take into account the fact that each of the complainants were young when the events are alleged to have occurred. Each was interviewed some years after those events (the first interview occurring on 15 November 2012) and they gave evidence on the voir dire some years after their records of interview were taken. In those circumstances, it is hardly surprising that there are inconsistencies in the complainants' evidence. 3. Counsel for the accused submitted that in relation to BR, the DVD of her first interview, in which she made no allegation, gave rise to an assessment of her as giving spontaneous and honest answers. This assessment of her credibility meant that her responses would not cause "anyone to have concern that anything had happened to her, she is not hesitant, she is not upset, she is not reluctant. She is open and in fact there is an unusual bit where she says 'When can I see my mum and dad?', towards the end of the interview, which is totally inconsistent in a significant way with what she subsequently says." 4. I do not accept that submission in relation to all of the answers given by BR in respect of the DVD. The accused also submitted that BR linked the conduct of the accused to punishment of herself and the other children. However, KR's evidence also referred to punishment – see [17] and [18] above. 5. I accept the Crown's submission that the evidence here is of significant probative value. In assessing the question of concoction and/or contamination, in accordance with the authorities as set out above, I do not find that in the circumstances of this case there was a reasonable possibility of either collusion, concoction of evidence or contamination of that evidence between the various complainants. KR denied discussing any details, SR gave evidence that any discussion at the sibling meeting was confined to "What happened should not have happened to us", and BR had been told by her carer to keep it to herself. 6. No allegation of concoction was in fact put to either KR, SR or BR in cross-examination on the voir dire. The accused's case was principally one of contamination of the evidence by inference. In these circumstances, given the restricted manner in which I must deal with the evidence, those are matters for the jury to determine. 7. On the question of prejudice, it is clear that the tendency evidence, to the extent that it supports the Crown case, is prejudicial to the accused. The question pursuant to s 101(2) is whether the probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused. Here, the evidence of KR, SR and BR demonstrates a tendency in the accused to act in a particular way, namely, "to have a sexual interest in children that are in his care, to penetrate the anus of children who are in his care and to touch children in his care in a sexual way". As Beazley JA said PWD, supra, said, the evidence is "capable of rationally affecting the assessment of the probability of the respondent having engaged in the conduct alleged and showing a sexual interest in doing so". In my view, the test in s 101(2) is satisfied. 8. I therefore find that the Crown is entitled to adduce the evidence of KR, SR and BR, referred to above as tendency evidence pursuant to s 97 of the Evidence Act. The prejudice to the accused may be limited by appropriate directions to the jury as to the way they might approach such evidence. 9. In his statement, BLR made no allegation against the accused. His statement does not, on its terms, amount to any probative evidence, let alone significant probative evidence, in a way that would satisfy the test in s 97 and s 101(2) of the Evidence Act. For that reason, I find that it cannot be adduced as tendency evidence. However, the evidence of BR in relation to her observations of what occurred to BLR does amount to tendency evidence in the Crown case against the accused in respect of Counts 5 and 6 on the indictment, and is therefore cross-admissible on those counts. Orders 1. I therefore make the following orders: 1. Dismiss the accused's application for separate trials and order that the trial proceed against the accused on all Counts on the Indictment. 2. The Crown is entitled to adduce the evidence of the complainants KR, SR and BR as tendency evidence pursuant to s 97 of the Evidence Act, and 3. That evidence is cross-admissible in respect of each count on the Indictment. ********** 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: 24 August 2015