POSSINGHAM (A PSEUDONYM) v THE KING [2026] SASCA 59

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DUNLOP (VOIR DIRE); HER HONOUR JUDGE TELFER (TRIAL)) DCCRM-24-049610 Appellant: POSSINGHAM (a pseudonym) Counsel: MR M MEAD - Solicitor: R J COLE & PARTNERS Respondent: THE KING Counsel: MS T COSTI WITH MS L TRIANTAFYLLOS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/05/2026 File No/s: SCCRM-25-037110 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. POSSINGHAM (A PSEUDONYM) v THE KING [2026] SASCA 59 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David) 28 May 2026 CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT Appeal against conviction. The appellant was tried by jury and convicted of two counts of sexual abuse of a child, in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) and as against two separate complainants. On appeal, the appellant complained that there had been a miscarriage of justice by reason of: • the Court proceeding with a joint trial on the erroneous basis that the evidence of both complainants was cross-admissible (Ground 1); • the Court admitting evidence of a protected communication in contravention of s 67E of the Evidence Act 1929 (SA) (Ground 2); • a submission by the prosecutor in closing address that the complainants ‘happened to complain of the same man on the same day’ (Ground 3); and • the judge’s references, in the context of her forensic disadvantage direction, to the need to scrutinise ‘all of the evidence’, and her failure to link the direction to the specific circumstances of the case (Ground 4). -- 1 of 19 -- Held (per the Court) granting permission to appeal and granting the appeal on Ground 1: 1. the evidence of the complainants was not cross-admissible and therefore a miscarriage of justice was occasioned by the judge’s refusal to order separate trials; 2. the error complained of in Ground 2 was immaterial and did not cause any miscarriage of justice; 3. the jury would not have been led into any prejudicial line of reasoning by the prosecutor’s submission the subject of Ground 3; and 4. in respect of Ground 4, the judge’s forensic disadvantage directions were adequate and no miscarriage of justice could be established. Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) ss 34CB, 34P, 67E, 67F, referred to. DES v The Queen [2020] SASCFC 32; Douglass v The Queen (2012) 290 ALR 699; Eddy (a pseudonym) v The King [2024] SASCA 115; McRoberts v The King [2024] SASCA 92; MDM v The Queen (2020) 136 SASR 360; Page v The Queen [2015] VSCA 357; Phillips v The Queen (2006) 225 CLR 303; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137; R v Marshall [2023] SASCA 105; Sexton v The Queen (2022) 141 SASR 325; Slape v The Queen [2022] SASCA 91; Stokes (a pseudonym) v The King [2026] SASCA 22, considered. -- 2 of 19 -- POSSINGHAM (A PSEUDONYM) v THE KING [2026] SASCA 59 Court of Appeal – Criminal: S Doyle, Bleby and David JJA 1 THE COURT: The appellant was convicted of two counts of sexual abuse of a child, in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA). 2 The first complainant, GD, was the daughter of a man who lived with the appellant. The offending against GD (Count 1) was alleged to have occurred during the period from 2003 to 2006, when GD was between five and nine years of age, and on occasions during nights when GD was staying with her father. 3 The second complainant, LP, was the biological daughter of the appellant. The offending against LP (Count 2) was alleged to have occurred during the period from 2013 to 2023, when LP was aged between four and fourteen years of age. 4 The central issue at trial was whether the prosecution had proved beyond reasonable doubt that the alleged offending – the subject of each charge – occurred. The defendant gave evidence denying all of the alleged offending. The trial was conducted on the basis that the evidence of both complainants was cross- admissible for ‘similar account’ reasoning, but not propensity reasoning. 5 The appellant seeks permission to appeal his convictions on the grounds that there was a miscarriage of justice by reason of: • the Court proceeding with a joint trial on the erroneous basis that the evidence of both complainants was cross-admissible (Ground 1); • the Court admitting evidence of a protected communication in contravention of s 67E of the Evidence Act 1929 (SA) (Ground 2); • a submission by the prosecutor in closing address that the complainants ‘happened to complain of the same man on the same day’ (Ground 3); and • the judge’s references, in the context of her forensic disadvantage direction, to the need to scrutinise ‘all of the evidence’, and her failure to link the direction to the specific circumstances of the case (Ground 4). 6 For the reasons which follow, Grounds 2 to 4 have not been made out. However, Ground 1 has been made out. The limited and general similarities between the accounts of the two complainants were not sufficient to give the complainants’ evidence the probative value necessary for it to be cross-admissible. We grant permission to appeal, and allow the appeal. -- 3 of 19 -- [2026] SASCA 59 The Court 2 The prosecution case 7 The prosecution case relied primarily upon the evidence of the two complainants. Evidence of the complainant GD 8 The complainant GD’s evidence was led in the form of a prescribed interview conducted in August 2023 and oral evidence before the jury consisting of additional evidence-in-chief and cross-examination. 9 GD was born in July 1997, and was between five and nine years of age during the period of the alleged offending (2003 to 2006). 10 GD’s evidence was that, in about early 2003, her father (PT) moved in with the appellant in his house on Ruth Street, Morphett Vale. GD and her sister would regularly stay overnight at the Ruth Street property. This usually occurred on Friday and Saturday nights, and three or four weekends of the month. When GD stayed overnight, she slept on a top bunk in a room shared with her sister and the appellant’s son. 11 On GD’s evidence, the sexual offending against her began when she was five years of age. She could not recall the specific occasions but gave evidence of the manner and frequency of the regular acts of sexual abuse. 12 GD gave evidence that, during the night, while everyone was asleep, she would wake to the sound of a flashlight being switched on. The appellant would enter the bedroom in which she was sleeping carrying a milk crate which he would then stand on in order to reach her on the top bunk. The appellant would grab GD by the hips or waist and roll her towards him. He would then move her underwear and insert his finger or fingers in her vagina. This caused her pain. The appellant would also rub her genitals with his hands. 13 GD said that she would usually pretend to be asleep. On some occasions, she squirmed or tried to roll away, and the appellant would tell her to stay quiet and not say anything. She said that sometimes she would wince in pain, and the appellant would say ‘it’s okay stay quiet’. 14 On GD’s evidence, the alleged sex acts occurred on most of the nights when GD stayed overnight at the Ruth Street property. 15 GD gave evidence that she first disclosed the alleged offending to a counsellor when she was about 15 years of age. This evidence of complaint is the subject of Ground 2, and is addressed in more detail later in these reasons. Evidence of the complainant LP 16 LP’s evidence was led in the form of two prescribed interviews, conducted in August 2023 and December 2024, and oral evidence before the jury consisting of additional evidence-in-chief and cross-examination. -- 4 of 19 -- [2026] SASCA 59 The Court 3 17 LP was born in January 2009, and was between four and 14 years of age during the period of the alleged offending (2013 to 2023). 18 In her evidence, LP could not recall the first occasion of sexual abuse, but was able to recall specific occasions throughout her childhood. Those occasions were linked to specific locations and events in LP’s life. 19 Over the course of the alleged conduct, the appellant resided at three relevant properties, referred to as the Elizabeth Street property (where LP lived with both of her parents), the Gertrude Street property (a converted shed where LP’s father lived after separating from her mother) and the Moore Road property (LP’s grandmother’s house). 20 LP gave evidence about a number of specific incidents of sexual abuse, with the prosecution case being that these occurred against a background of other similar acts. 21 LP described an occasion at the Elizabeth Street property when she was baking a cake with the appellant. She had not yet started school. She recalled her brothers were at school and her mother was at work. They were in the kitchen and the appellant put some of the cake batter on his thumb, and told LP to get on her knees and close her eyes. LP complied and heard the appellant undo the zipper on his jeans. She said that she froze, but that the appellant then got her to ‘suck it off’, explaining that the appellant got her to open her mouth and he put his penis inside her mouth. 22 There was another occasion, when LP was in her bedroom at the Elizabeth Street property. It was late at night, and dark in her bedroom. She awoke to find the appellant near her bed. He had his pants off and was taking her thumb out of her mouth. He then rubbed his penis on her lips. He attempted to put his penis in her mouth, but she could not recall whether he succeeded. This occasion came to an end when LP started crying and told the appellant she had had a nightmare (even though she had not). 23 LP gave evidence that the appellant may have touched her vagina while she was in bed on more than one occasion, although she did not have any clear recollection of any such occasion. LP was, however, able to recall many occasions on which the appellant caused her to touch his penis. 24 There was an occasion at the Elizabeth Street property when the appellant was showering with LP. He asked her to wash his back and then his penis. She described rubbing soap on the appellant’s penis with her hand. 25 LP gave evidence that she would often sleep in her parents’ bed because of her separation anxiety. She said that on one such occasion, whilst lying between her parents, the appellant moved her hand onto and around his penis. She described his penis as being ‘squishy, a little bit slimy’. -- 5 of 19 -- [2026] SASCA 59 The Court 4 26 She recalled another occasion when it was hot at night, and she was sleeping between her parents. She was hugging her mother, who was asleep, and the appellant was positioned behind her. The appellant placed his hand on the inside of her leg, and touched her genitals. She could not recall whether he inserted his finger inside her genitals. She described moving in the bed and attempting to keep her legs closed. She said that her mother stopped snoring and the appellant then moved his hand. 27 LP also described occasions that occurred at the Gertrude Street property, where the appellant lived from late 2020 to late 2021. She said that she regularly visited and stayed overnight. On occasions when she stayed there with the appellant, he would cause her to touch his penis. There was also an occasion at the Gertrude Street property when the appellant caused her to lie on top of him. 28 On the night of 8 October 2020, when she was 11 years of age, the appellant took LP to stay for a night in an ‘executive king spa room’ at the Grand Chancellor Hotel in Adelaide. While they were in the bath together, and the appellant was positioned behind her, she felt his penis near her back. While massaging her shoulder, he reached down and squeezed one of her breasts. Later, while in bed with the appellant, and as she was falling asleep, he caused her to masturbate him. 29 According to LP, the last occasion she was sexually abused by the appellant was at her nanna’s house on Moore Road. She said that it occurred in 2023 when she was 14 years of age and in year nine at school. She regularly stayed at the Moore Road property, and when she did she slept in the appellant’s bed. On this occasion, she was under the covers and watching a movie with the appellant in his bed. She was lying flat on her stomach with her hands alongside her. The appellant was sitting next to her and began to rub her back over, and then under, her pyjamas. The appellant caused her to touch and masturbate his penis. The incident ended when LP removed her hand, turned around and went to sleep. 30 LP gave evidence that there were other occasions when the appellant touched her breasts at either the Gertrude Street property or the Moore Road property. She recalled an occasion when the appellant was massaging her back while she was lying flat on her stomach. She turned to her side, and the appellant cuddled her and squeezed her breast with his hand. She recalled that she was wearing a t-shirt, but with no bra, and the appellant placed his hand under her t-shirt. 31 Complaint evidence was led from LP to the effect that the first person she told about the sexual abuse of her by the appellant was her mother. She recalled sitting on the couch, and her mother raised with her the topic of another person complaining about the appellant. Her mother asked her whether ‘it’ had happened to her, at which point LP nodded and broke down crying. -- 6 of 19 -- [2026] SASCA 59 The Court 5 Other prosecution evidence 32 The prosecution called evidence from LP’s brothers, her mother and some other witnesses as to various surrounding events and family living arrangements. Ultimately there was no issue about these matters. 33 There was evidence to the effect that LP had been diagnosed with autism spectrum disorder. The prosecution led evidence from an expert (Dr Young) on the topic of how that disorder may have affected LP’s behaviour and presentation as a witness. 34 Evidence was also led from Ms Rayment, a clinical psychologist, on the topic of child development, and the behaviour, responses and memory of children who experience sexual abuse. The defence case 35 The appellant gave evidence denying the offending. His evidence was consistent with the prosecution evidence as to the surrounding events, locations and family arrangements (including sleeping arrangements). However, he denied that he ever sexually abused GD or LP. 36 The appellant also gave evidence about an injury which he sustained as a teenager, and which impaired his mobility. He said that this impairment meant it would not have been possible for him to stand on a milk crate as described by GD. That said, the appellant accepted in his evidence that his injury did not prevent him engaging in various physical tasks, including painting a house, carrying out general house repairs, changing the sheets on an upper bunk bed and competing in ‘gel balling’. 37 The appellant also said that a pillow he used to sleep with would have impaired his ability to sexually abuse LP in the manner she described. 38 The defence case included five witnesses who spoke of their observations of LP and the appellant together. Ground 1: cross-admissibility of the complainants’ evidence 39 The appellant contends that the Court erred, or occasioned a mistrial, by proceeding with a joint trial on the basis that the complainants’ evidence was cross- admissible for ‘similar account’ reasoning. He argues that the complainants’ evidence did not have the requisite similarity, and hence probative value, in this use to make it cross-admissible, with the result that there ought to have been separate trials of the two complainants’ allegations of sexual abuse. 40 The joinder and separation of charges is governed by s 102 of the Criminal Procedure Act 1921 (SA). Under s 102(1), two or more charges may be joined in the same information if they are founded on the same facts or form, or are part of, a series of offences of the same or a similar character. There was no dispute that -- 7 of 19 -- [2026] SASCA 59 The Court 6 the two charges in the present case were appropriately joined in the one information. 41 Prior to commencement of the trial, the appellant sought an order that there be separate trials of the two charges. 42 Under s 102(5)(a), a court may direct that charges contained in a single information be dealt with in separate proceedings. However, under s 102(6), because the charges in the present case related to sexual offences involving two victims joined in the same information, the counts were to be tried together, with the only qualification being that the judge ‘may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.’ 43 It followed that if, as the voir dire judge held, the evidence of the two complainants was cross-admissible, this was fatal to the appellant’s application for separate trials. 44 As the evidence of each complainant was evidence of discreditable conduct vis-à-vis the charge relating to the other complainant, the cross-admissibility of that evidence was governed by s 34P of the Evidence Act 1929 (SA). At the voir dire, the prosecution argued that the evidence was cross-admissible for both a propensity use and a non-propensity use (similar account reasoning). The voir dire judge rejected the prosecution’s argument as to admissibility for a propensity use, and this decision is not challenged on appeal. This appeal concerns only a challenge to the voir dire judge’s holding that the complainants’ evidence was cross-admissible for similar account reasoning. 45 As similar account reasoning does not involve a propensity use,1 the admissibility of evidence adduced for use in this way is governed by s 34P(2)(a). For it to be admissible, the probative value of the evidence must outweigh any prejudicial effect it may have on the defendant. 46 The essence of similar account reasoning, and the bases for its potential probative force and prejudicial effect, are well known. As Kourakis CJ explained in R v C, CA,2 the probative force of this style of reasoning lies in the recognition that the accounts of the multiple complainants may have ‘such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them’ becomes improbable. In other words, the similarity between the accounts of those complainants may tend to exclude the possibility that they were independently fabricated, imagined or mistaken; and, in that way, may tend to support the 1 Albeit that it may ultimately reveal a propensity: Eddy (a pseudonym) v The King [2024] SASCA 115 (Eddy) at [87] (Bleby JA, David JA and B Doyle AJA); R v Bonython-Wright (2013) 117 SASR 410 (Bonython-Wright) at [50] (Kourakis CJ, Blue and Stanley JJ agreeing). 2 R v C, CA [2013] SASCFC 137 (R v C, CA) at [61] (Kourakis CJ, Anderson and Nicholson JJ agreeing). -- 8 of 19 -- [2026] SASCA 59 The Court 7 credibility and reliability of those accounts, and hence be probative of their truth.3 The potential for prejudice, on the other hand, ‘lies primarily in the antipathy to the accused which the multiple allegations will engender’, and the capacity for this to ‘distract a jury from any defects or frailties in the evidence directly bearing on the offences charged’. 47 Whether, in a particular case, the probative value of another complainant’s evidence outweighs its prejudicial effect will, of course, depend upon the circumstances of that case. However, given the obvious and real potential for prejudice, the evidence will ordinarily need to strongly exclude the possibility of independent fabrication, imagination or mistake for its probative value to outweigh the prejudicial effect it may have on the defendant.4 48 In cases involving child complainants, it has been observed that the starting point for analysis is the inherent unlikelihood of more than one child known to an adult defendant falsely alleging sexual abuse against them.5 However, as the Court explained in Eddy (a pseudonym) v The King,6 even accepting that being the subject of two or more false accusations is an inherently less likely state of affairs than being the subject of one, there is a danger in reasoning from that basal improbability alone. Doing so risks undermining, if not inverting, the ‘designedly exacting’ criminal standard of proof. 49 In considering the probative value of the similarities in two or more complainants’ testimonial accounts of the defendant’s offending against them, the task is not one of simply listing or comparing the similarities or dissimilarities in some abstract way.7 The relevant inquiry is whether, as a matter of human experience, the level or degree of similarity between the complainants’ accounts goes beyond that which might be expected if, for reasons peculiar to them, and whether conscious or sub-conscious, the complainants had independently fabricated, imagined or mistaken the offending which they allege.8 50 It follows that, in undertaking this inquiry, the focus must be upon the extent to which the similarities relate to matters of detail and peculiarity in the complainants’ accounts, as opposed to features of the alleged offending which are 3 Noting that any reasonable possibility of collusion will also need to be considered and excluded. 4 In R v C, CA at [61], Kourakis CJ referred to the need for the similarities to ‘very strongly exclude’ this possibility; but the amendment of s 34P(2)(a) to replace ‘substantially outweigh’ with ‘outweigh’ has reduced this threshold requirement for admissibility (Eddy at [87] (Bleby JA, David JA and B Doyle AJA)). 5 Eddy at [90] (Bleby JA, David JA and B Doyle AJA); McRoberts v The King [2024] SASCA 92 (McRoberts) at [40] (Kourakis CJ, Bleby and David JJA); MDM v The Queen (2020) 136 SASR 360 (MDM) at [14] (Kourakis CJ, Kelly J agreeing); Stokes (a pseudonym) v The King [2026] SASCA 22 at [54] (S Doyle JA, David JA and Mullins AJA). 6 Eddy at [90] (Bleby JA, David JA and B Doyle AJA); Douglass v The Queen (2012) 290 ALR 699 at [48] (the Court). 7 R v C, CA at [67] (Kourakis CJ, Anderson and Nicholson JJ agreeing). 8 Eddy at [91] (Bleby JA, David JA and B Doyle AJA); R v C, CA at [65] (Kourakis CJ, Anderson and Nicholson JJ agreeing); DES v The Queen [2020] SASCFC 32 (DES) at [73] (Doyle J, Kourakis CJ and Livesey J agreeing). -- 9 of 19 -- [2026] SASCA 59 The Court 8 general, commonplace or unremarkable. The more similarities, and the more they relate to matters of detail and peculiarity, the greater their probative value. Put another way, given the great range and diversity in human behaviours and imagination, and the infinite variety of allegations that might be made, the greater the overlap in detail and peculiarity between accounts, the more improbable it is that the separate accounts were independently fabricated, imagined or mistaken.9 51 With this understanding in mind, the focus will ordinarily be upon those aspects of a complainant’s narrative that might be fabricated, imagined or mistaken, as opposed to those aspects which merely describe the personal characteristics or circumstances of the complainant or the defendant, or the relationship between them.10 In the circumstances of R v C, CA, for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the defendant’s foster son, and all accompanied the defendant on outings, were of limited significance when assessing the probative value of the similar accounts.11 Similarities of this nature, even if relevant to the basal improbability that informs the starting point for the analysis, do not bear directly upon the improbability of the complainants having independently fabricated, imagined or mistaken their accounts of offending. The position may be otherwise where the features of the relationships between the appellant and the complainants form an integral part of the complainants’ narrative of the offending.12 52 The principles set out above were helpfully summarised, and elaborated upon, in the following passage from the reasons of the Court in Eddy (a pseudonym) v The King:13 The relevant inquiry is whether, as a matter of human experience, the levels of similarity between the complaints go beyond those which might be expected if, for reasons, conscious or sub-conscious, which are peculiar to them, the complainants had independently concocted, fabricated or imagined the offending which they alleged.14 The focus is upon the similarities contained in the narrative of the allegations made by the complainants, rather than the similarities relating to the circumstances of the complainants themselves which exist independently of the alleged conduct on the part of the accused.15 The age and circumstances of the complainants, and the relationship between the 9 Bonython-Wright at [48] (Kourakis CJ, Blue and Stanley JJ agreeing); R v C, CA at [57]-[58] (Kourakis CJ, Anderson and Nicholson JJ agreeing); Slape v The Queen [2022] SASCA 91 (Slape) at [52]-[53] (Doyle, Bleby and David JJA). 10 Slape at [56]-[57] (Doyle, Bleby and David JJA); DES at [70] (Doyle J, Kourakis CJ and Livesey J agreeing); MDM at [14]-[16] (Kourakis CJ, Kelly J agreeing), [128]-[136] (Peek J). 11 R v C, CA at [93] (Kourakis CJ, Anderson and Nicholson JJ agreeing); Slape at [56] (Doyle, Bleby and David JJA). 12 McRoberts at [53] (Kourakis CJ, Bleby and David JJA); Sexton v The Queen (2022) 141 SASR 325 at [128] (Livesey P, David JA and Stanley AJA). 13 Eddy at [91]-[98] (Bleby JA, David JA and B Doyle AJA). 14 R v C, CA at [65] (Kourakis CJ, Anderson J agreeing); DES at [73] (Doyle J, Kourakis CJ and Livesey J agreeing). 15 R v C, CA at [65] (Kourakis CJ, Anderson J agreeing); MDM at [128]-[135] (Peek J, Kelly J agreeing); Slape at [57] (Doyle, Bleby and David JJA). -- 10 of 19 -- [2026] SASCA 59 The Court 9 complainants and the accused, may nevertheless feature in or inform an assessment of the significance of similarities between the accounts of complainants.16 In considering whether there are similarities in the accounts which add the requisite force to what has been referred to as the basal improbability, it may be instructive to consider whether there are commonalities between the accounts that would not be expected if each of the complainants were disposed to fabricate or somehow prone to imagine an account of offending by the accused.17 Framing the inquiry in that way may assist in identifying those similarities which are most significant in this context. At one extreme, a common description of the accused’s appearance is of no significance if the accused is otherwise known to the complainants. It says nothing about the improbability that each complainant independently fabricated or imagined their account that the accused engaged in sexual offending against them. At the other extreme, when the accounts of multiple complainants each include a common description of highly idiosyncratic behaviour linked to the offending, the evidence may have the capacity very powerfully to negate the possibility that the complainants independently concocted, fabricated or imagined the same detail of their account. That may be so even though there are other aspects of their accounts which are dissimilar. In such a case, the dissimilarities may not logically detract from the probative force arising from a particular common feature.18 If, however, the unusual or idiosyncratic behaviour is unrelated to the offending, such that the complainants might all have observed the accused behave in this way in the course of innocent interactions, the similarity would lose its significance in rebutting independent concoction. Indeed, it might be the very kind of detail that one might expect to be included in false allegations made by complainants for independent reasons. The unlikelihood of independent concoction may also be affected by the age and circumstances of the complainants. It is one thing to observe that aspects common to the accounts of two adult complainants are relatively unremarkable features of a narrative account of the offences described by them,19 but similar accounts of sexual conduct given by young children who might not be expected to have any understanding or experience of the typical or characteristic features of sexual abuse against children may take on a different complexion.20 Ultimately, it is necessary to consider the detail of the accounts and then to stand back and consider whether, having regard to the complainants’ accounts in their entirety, the similarities in the accounts tend against the possibility of independent concoction, fabrication or mistake to an extent that gives the evidence a probative value sufficient to outweigh the prejudicial effect it may have upon the accused.21 53 In assessing the probative value of the similarities between the complainants’ accounts, the issue is not whether those accounts establish a unique modus 16 McRoberts at [52]-[53] (Kourakis CJ, Bleby and David JJA). 17 Similarities which are ‘unremarkable’ or which do not transcend generic features common to many allegations of the type of offending in question are not significant in this context: McRoberts at [72] (Kourakis CJ, Bleby and David JJA). 18 See, eg, Page v The Queen [2015] VSCA 357 at [59] (Maxwell P, Redlich JA and Beale AJA). 19 See, eg, Slape at [61] (Doyle, Bleby and David JJA). 20 See, eg, R v Marshall [2023] SASCA 105 at [161] (Livesey P, David JA and Kimber AJA). 21 McRoberts at [73] (Kourakis CJ, Bleby and David JJA). -- 11 of 19 -- [2026] SASCA 59 The Court 10 operandi.22 Nor is it necessary that the accounts be ‘strikingly similar’, or demonstrate some underlying unity, system, pattern or signature.23 Whatever significance these labels continue to have when considering the admissibility of evidence for a propensity use, they are of limited, if any, assistance when considering the cross-admissibility of another complainant’s evidence for a non- propensity similar account use. 54 Finally, the potential for collusion between the complainants, or for the allegations of one to have otherwise contaminated the allegations of another, is a matter that may undermine the probative force of any similarities in their accounts of the offending against them. However, by reason of s 34S of the Evidence Act, the exclusion of this possibility is not a pre-condition to admissibility.24 It is a matter for trial. 55 In the present case, drawing upon the reasons of the voir dire judge, the respondent relies upon the following similarities between the complainants’ accounts as providing the requisite probative value to sustain the cross- admissibility of their evidence: (i) both involved sexual offending against female complainants, commencing when they were prepubescent children of about five years of age, and continuing over a period of years; (ii) both involved sexual offending in the house where the complainants were living or staying with their parent, and involved offending by the appellant as their parent or another trusted adult within that house; (iii) both included allegations of the appellant offending at night, and touching the complainant’s genitals with his hands; and (iv) both involved sexual offending when others were present in the house, being brazen offending without any apparent regard to the high risk of detection. 56 In our view, when examined closely, the similarities relied upon were not sufficient to give the complainants’ evidence a probative value that outweighed the prejudice to which that evidence exposed the appellant. 57 The fact that both complainants were female is not to the point. This was not an aspect of their accounts which they might have fabricated, imagined or mistaken. Whilst they both alleged offending which commenced when they were a similarly young age, and continued for a period of years, this was a very general similarity and of limited significance, particularly in circumstances where the 22 R v C, CA at [65] (Kourakis CJ, Anderson and Nicholson JJ agreeing); McRoberts at [39] (Kourakis CJ, Bleby and David JJA). 23 McRoberts at [39] (Kourakis CJ, Bleby and David JJA); Slape at [58] (Doyle, Bleby and David JJA); Phillips v The Queen (2006) 225 CLR 303 at [58] (the Court). 24 Eddy at [89] (Bleby JA, David JA and B Doyle AJA); R v C, CA at [58]-[60] (Kourakis CJ, Anderson J). -- 12 of 19 -- [2026] SASCA 59 The Court 11 offending against LP continued for a far greater period of time, and continued until she was in her early teens. 58 Nor was it of much significance that both complainants alleged offending in the house in which they were living or staying, and by a parent or trusted adult in that house. Not only was the appellant’s status inherent in the relationships between the appellant and the complainants, and not something that was part of any narrative that might have been fabricated, imagined or mistaken, but also the appellant’s position or relationship was quite different in each case. Although the appellant was the biological father of LP, he was merely a friend or housemate of GD’s father who lived in the same house as GD. He was not in any position of trust or responsibility, let alone a parental-type role, vis-à-vis GD. 59 It is true that GD and LP both alleged offending at night and in the house in which they were living. But this was a very general similarity and did not take the matter far. Although all of the offending alleged by GD occurred at night while she was in her own bed, the circumstances of the offending alleged by LP were more diverse than this. LP’s account included offending which occurred at night, but while she was in bed with one or both of her parents, rather than in her own bed. More significantly, it also included offending which occurred during the day, and in various other rooms and settings (while cooking in the kitchen and while showering in the bathroom), both within the house she was in which she was living at the time, and elsewhere (in a hotel bathtub). 60 In addition to these differences in the location or setting of the alleged offending, the detail of the circumstances and sexual acts involved were also quite different. Each of the allegations by GD involved instances of the appellant entering her bedroom at night with a flashlight, standing on a milk crate, and using his hands to touch or rub her vagina and, on occasions, insert his finger or fingers in her vagina. The allegations by LP, on the other hand, were far more varied. Although she gave some general evidence to the effect that the appellant may have touched her vagina while she was in her bed, she could not recall any such incident clearly. Rather, the focus of LP’s evidence was a number of instances of quite different offending. Some of these involved the appellant touching her vagina, but most involved different sexual acts by the appellant, including touching LP’s breasts, putting his penis in her mouth, and causing her to touch his penis. 61 It may be accepted that both complainants alleged offending which occurred in circumstances which were brazen and involved a high risk of detection. Whilst some authorities have suggested that this may be a relevant similarity,25 caution is required when relying upon conclusory labels such as ‘brazen’ or ‘high risk’ in describing probative similarities. Bearing in mind that the probative value of a similarity lies in its capacity to negate the probability of fabrication, imagination or mistake, the brazenness or risk must have its foundation in some similar aspect 25 DES at [71] (Doyle J, Kourakis CJ and Livesey J agreeing); Eddy at [123]-[125] (Bleby JA, David JA and B Doyle AJA). -- 13 of 19 -- [2026] SASCA 59 The Court 12 of the complainants’ narratives in order to be probative. As described above, that foundation is lacking in the present case. The circumstances warranting the description of the appellant’s offending as brazen, and involving a high risk of detection, were quite different. The risk of detection, for example, from the offending against GD whilst she was in her own bed, was quite different from the offending against LP whilst she was lying between the appellant and her mother in their bed. 62 In summary, standing back, and having regard to the overall impression formed from an evaluation of the two complainants’ accounts in their entirety, as the authorities suggest is appropriate,26 it seems to us that the two complainants’ accounts of the offending against them are notable more for their differences than their similarities. They involve quite different narratives of offending, with one complainant describing multiple instances of very similar offending, and the other complainant describing a diverse range of quite different offending. We are not satisfied that the evidence of either complainant had sufficient probative value vis- à-vis the charge relating to the other complainant to outweigh its prejudicial effect. 63 It follows that the evidence was not cross-admissible. As it was not suggested that there was any other basis for a joint trial, there ought to have been separate trials. Ground 1 has been made out. Ground 2: evidence of a protected communication 64 Ground 2 involves a complaint of a miscarriage of justice by reason of the Court erroneously admitting evidence of a protected communication in contravention of s 67E of the Evidence Act. 65 The respondent accepts that the reference in the complainant GD’s prescribed interview to her telling a counsellor ‘what had happened to her’ was evidence of communication in a therapeutic context which was a protected communication under s 67E. However, the respondent contends that the irregularity in receiving this evidence in contravention of s 67E was not material in that, had the difficulty with leading the evidence been appreciated, it would inevitably have been adduced with the leave of the Court under s 67F(5). 66 In order to explain why, in our view, the respondent’s submission is sound, and Ground 2 has not been made out, it is necessary to elaborate upon what occurred at trial. 67 As mentioned, the complainant GD’s evidence at trial included her prescribed interview. The version of this interview admitted at trial (a transcript of which was MFI P21) included an exchange in which GD was asked when she first spoke to somebody ‘about what had happened to you’. GD said that she first 26 Eddy at [98] (Bleby JA, David JA and B Doyle AJA); Slape at [67] (S Doyle, Bleby and David JJA). -- 14 of 19 -- [2026] SASCA 59 The Court 13 did so when she was 15 years of age, and was seeing a counsellor about a separate issue. 68 It is apparent that, at the commencement of the trial, the parties and judge had a transcript of the prescribed interview which included some additional detail as to the content of what GD had disclosed to her counsellor.27 However, when the issue was raised before the judge at the commencement of the trial, the prosecutor explained that this additional detail would not be led in evidence because to do so would involve disclosing a protected communication in contravention of s 67E. However, she explained that the prosecution did intend to lead evidence of a redacted version of that interview (reflected in MFI P21) on the basis that evidence of the mere fact of a communication to the counsellor about sexual abuse by the appellant would be admissible evidence of an initial complaint which did not involve any contravention of s 67E. 69 There was no objection by the appellant’s counsel at trial, and the trial proceeded in this way. The judge directed the jury in relation to this evidence of GD’s initial complaint in orthodox terms, save that her Honour confined the scope for consistency which might bolster GD’s credit to consistency of conduct, as opposed to consistency of account. This appropriately reflected the fact that, as the jury did not have any information about the content of the complaint, it was not in a position to assess the extent to which it was consistent or inconsistent with the evidence given by GD at trial. 70 On appeal, the appellant contends, and the respondent accepts, that the procedure adopted at trial involved an error or irregularity in that the evidence led through the prescribed interview involved the disclosure of a protected communication in contravention of s 67E. However, the respondent contends that this error or irregularity was immaterial because, had the correct position been appreciated at the time of trial, the evidence would have been led regardless. Although the immunity from disclosure under s 67E cannot be waived, the respondent contends that the prosecutor would have sought, and would have been granted, permission to adduce the evidence which was adduced pursuant to the regime provided for under s 67F. 71 In arguing on appeal that the error or irregularity was nevertheless material, the appellant did not contest the inevitability of the prosecutor obtaining permission to adduce evidence of GD’s complaint to her counsellor under s 67F.28 Rather, the appellant argued that the error or irregularity was material, and a miscarriage occurred, because he was deprived of an opportunity to consider whether to seek to adduce additional evidence under s 67F as to the content of the disclosure. The appellant did not positively assert that he would have done so, or indeed that he had a basis to believe there was any relevant inconsistency in the 27 That additional detail is not before this Court, and the parties did not suggest that this Court should have regard to it in determining Ground 2. 28 It is thus not necessary for this Court to consider the soundness of this argument. -- 15 of 19 -- [2026] SASCA 59 The Court 14 content of what was disclosed. He relied merely upon the prospect that his counsel might have sought to subpoena any records that the counsellor might have kept, or have otherwise cross-examined by reference to the unredacted version of the transcript of the prescribed interview which the appellant’s counsel had available to him. 72 The difficulty with the appellant’s argument on materiality is that his counsel at trial could have pursued this course, but did not. It is not as though the appellant’s counsel at trial was unaware of any issue about the reach of s 67E. He was present when the prosecutor informed the judge that, in order to avoid contravening s 67E, she intended to confine the prosecution evidence to the fact of the disclosure to the counsellor and not the content of that disclosure. The operation of s 67E having been squarely raised, and the appellant’s counsel having been aware of some additional detail of the disclosure made, he must be taken to have made a forensic decision not to pursue the issue further. He must be taken to have made a forensic decision not to seek to subpoena the counsellor’s records, and not to seek permission under s 67F to adduce further evidence as to the content of the complaint made by GD to her counsellor. 73 In the circumstances described, we do not consider that it is open to the appellant to contend on appeal that the error or irregularity identified was material. It follows that Ground 2 has not been made out. Ground 3: the prosecutor’s submission in closing address 74 The evidence at trial, from an investigating police officer, was that GD’s and LP’s allegations of sexual abuse by the appellant were both reported to police on the same day, 20 July 2023. The circumstances of those reports, including the means or person by which they were made, was not explored in the evidence. 75 In her closing address, the prosecutor addressed the similarities between the accounts given by the two complainants, submitting that they supported the improbability of the two complainants having coincidentally fabricated their allegations. She also submitted that collusion or contamination could be excluded because both complainants were clear in their evidence that they had never discussed the details of their allegations. The prosecutor concluded this topic by submitting: Their allegations are about 10 years apart, different houses and they just happened to complain of the same man on the same day. That means that leaves little room for collusion and you can consider the coincidence of their accounts in your deliberations. (emphasis added) 76 The appellant contends that the emphasised comment had the tendency to impermissibly bolster the credibility of the complainants by suggesting that further consistent reports had been made when the matters were reported to the police, or by suggesting that there were separate complaints made by both complainants on the same day that the jury were not aware of. -- 16 of 19 -- [2026] SASCA 59 The Court 15 77 When read in context, it appears that the impugned submission by the prosecutor formed part of a submission intended to emphasise the limited scope for collusion; that is, to emphasise that, because the allegations were reported to the police on the same day, there was no room for the complainants to have colluded after the allegations of one had been reported to the police. 78 It may be accepted that the submission was unclear, and not particularly persuasive. Indeed, highlighting the contemporaneous timing of the reports to police tended, if anything, to raise the spectre of some connection between those reports. 79 Be that as it may, and even accepting that the jury may have been left confused by the submission, we are not persuaded that there is any realistic prospect that the jury would have entertained either of the thought processes suggested by the appellant in support of this ground of appeal. In particular, we are not persuaded that there was a realistic prospect that the jury would taken the prosecutor to have been suggesting that the complainants themselves both spoke to police on the same day, let alone that they did so in terms that somehow bolstered their credit. 80 It is true that the judge did not give any direction assisting the jury to understand the impugned submission, or directing them to ignore it. However, this was in a context where there was no complaint by the appellant’s counsel at trial about the submission now challenged on appeal. The absence of any contemporaneous complaint at trial tends to support our impression that the jury, whilst potentially left confused by the impugned submission, would not have been led into any prejudicial line of reasoning. 81 It follows that Ground 3 has not been made out. Ground 4: forensic disadvantage 82 The trial judge’s directions included the following in relation to forensic disadvantage:29 [1] The next topic I need to give you some directions about concerns delays between the allegations and these matters reaching trial. [2] The things that [GD] says were done to her were alleged to have occurred over 20 years ago. The delay between the allegations made by [LP] and the trial is much shorter, although taking the earliest point in time perhaps a decade has passed. In respect to the allegations in count 1, [GD], the delay has had a significant impact on the ability of the accused to test the case against him and respond to the allegations. Because of the passage of time witnesses who were relevant to the allegations did not have a good memory for details. This impeded the ability of the defence to challenge witnesses on matters of detail or expose where a witness is clearly wrong or inconsistent. The accused does not have the benefit of a detail of the date on 29 Numbering inserted for ease of reference. -- 17 of 19 -- [2026] SASCA 59 The Court 16 which things are alleged to have occurred and cannot, for example, potentially identify an alibi or other witnesses who might be able to speak to the circumstances. [3] When you are considering all of the evidence on Count 1 you must take these disadvantages into account when you scrutinise the prosecution evidence. In fact when you scrutinise all of the evidence. [4] In respect to the allegations the subject of count 2, as I said the delay is much more modest. However, it remains appropriate for you to consider the disadvantages that I have outlined in respect to count 1 when you scrutinise all of the evidence that is relevant to count 2. In respect to both counts it is relevant to bear in mind the passage of time when you assess the evidence given by [the appellant] and the evidence called on the defence case. No doubt the age of the allegations has affected the ability of [the appellant] and other witnesses to recall the detail of the events that they testified about. 83 The authorities governing the trial judge’s task when directing as to a defendant’s forensic disadvantage under s 34CB of the Evidence Act are well known and not in dispute. It is sufficient for present purposes to reiterate that the directions must be addressed to the circumstances of the particular case, and must be focussed upon the disadvantage to the defendant. 84 The appellant makes two complaints about the judge’s directions in the present case. 85 The first is that by instructing the jury to scrutinise ‘all of the evidence’ with care, the judge diluted the efficacy of the directions given and suggested that the scrutiny should extend to the appellant’s evidence. We do not accept this complaint. In paragraph [2] of the directions set out above, the judge identified the disadvantages to the accused in testing and responding to the case against him, in challenging witnesses on matters of detail, and in identifying alibis or witnesses. Whilst the judge subsequently referred to the need to scrutinise ‘all of the evidence’, without confining himself to the prosecution evidence, these references were linked to a direction that the jury do so with ‘these disadvantages’ in mind. This was a plain reference back to the disadvantages to the defendant identified in paragraph [1]. In this way, we consider that the judge’s directions were appropriately focussed upon, and confined to, the forensic disadvantage to the defendant. 86 The second is a complaint that the directions were not specific to the circumstances of the case. This submission must be considered in the context of the appellant’s submissions at trial. The appellant’s counsel at trial did not identify any specific disadvantage. The judge’s directions reflected the level of generality in which the appellant’s counsel addressed the forensic disadvantage to his client. Consistently with this, there was no contemporaneous complaint about the terms of the trial judge’s directions. 87 On appeal, the appellant argues that the judge should have mentioned the appellant’s disadvantage in terms of addressing (i) GD’s evidence about the -- 18 of 19 -- [2026] SASCA 59 The Court 17 appellant standing on a milk crate when offending against her; (ii) his medical condition; and (iii) the absence of forensic evidence. 88 As to (i), the topic of whether there was a milk crate in the house was explored in the evidence, with the appellant’s counsel relying upon the evidence of one witness who said there was nothing in the location where another witness had said a crate was kept. As the respondent pointed out on appeal, no direction was sought on this topic and, indeed, a forensic disadvantage direction on this topic might have undermined the appellant’s reliance upon the evidence just mentioned. 89 As to (ii), the appellant gave evidence that he suffered from a disability arising from a car accident and that this would have made it impossible for him to commit some of the offending in the way described. There was other evidence as to the impact of the appellant’s disabilities on his physical capabilities. There was no request, or evidential foundation, for a direction to the effect that there was medical evidence which would have been of assistance to the appellant but which was no longer available. 90 As to (iii), there was no evidence, cross-examination or submission directed to the topic of any forensic evidence or testing that might have been available. Nor did the appellant’s counsel suggest that the judge direct the jury as to any forensic disadvantage in this respect. In the circumstances, a direction on this topic would have been to introduce a new topic with the potential to confuse or distract the jury. 91 In summary, the judge’s forensic disadvantage directions were adequate in the circumstances of the case. The miscarriage of justice alleged in Ground 4 has not been established. Conclusion 92 We grant the appellant permission to appeal. We reject Grounds 2 to 4. However, we allow the appeal on Ground 1. We set aside the appellant’s convictions on Counts 1 and 2, and order that those charges be retried. -- 19 of 19 --