27.247 A related concern arises from the High Court’s decision in Phillips v The Queen (Phillips). Phillips involved a joint trial with six complainants. The prosecution called all six complainants who gave evidence about the defendant pursuing sex activity with them in circumstances where they did not consent.
27.248 The trial judge had found that the probative value of the evidence was its ability to show the ‘improbability of similar lies by each of the complainants’.
That is, one girl might deliberately make up a lie that [the appellant] dealt with her sexually without her consent; two might possibly make up a lie to that effect; but the chances or the probability that all six have made up such a lie, in my view, becomes remote in the extreme in the absence of any real risk of concoction.
27.249 The High Court quashed the convictions based on its finding that the decision to join the charges in a single indictment was wrong in law. The Court observed that:
Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused … But where a particular count supported by one complainant’s evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to ‘the improbability of similar lies’ on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen … ; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.
27.250 The Court held that the evidence of each complainant about whether they consented to sexual activity with the accused was not cross-admissible in relation to the counts involving the other complainants on the grounds of lack of relevance.
27.251 On one view, Phillips may have application to any sexual assault proceedings where there are multiple complaints of sexual assault against the same defendant and where consent is a fact in issue. There is some case law indicating that Phillips may be applied to prevent joint trials being held in relation to multiple allegations against the same defendant.
27.252 The Consultation Paper asked what impact Phillips v The Queen has had on the prosecution of sexual assaults where there are multiple complaints against the same defendant and whether there is a need to introduce reforms to overturn the decision.
27.253 Some stakeholders considered that reform should address the implications of the decision in Phillips. The Women’s Legal Service Queensland stated that, at least in Queensland, the decision had made it more difficult to conduct joint trials. NASASV supported ‘overturning the rulings’ in Phillips. NASASV emphasised the impact of Phillips in the family violence context, noting that where ‘victims are from the one family the impact of multiple trials is enormous’ and can adversely affect the complainants’ ‘motivation and determination to continue through the whole process’.
27.254 Cossins put forward a detailed case for legislative reform to address the impact of the decision in Phillips. She submitted that, without such reform, the effect of the Commissions’ proposal to encourage more joint trials where there are multiple complainants, by introducing a presumption of joint trial, would be undermined.
27.255 Cossins suggested that evidence law should recognise that multiple complaints of sexual assault can be ‘corroborative in nature’ where there is a ‘sufficient connection in the circumstances associated with the complaints’. The provision would apply to sexual assault proceedings if two or more counts charging sexual offences involving different complainants are joined in the same indictment. It would state that, in a joint trial involving two or more counts, the evidence of one complainant about the alleged sexual acts and behaviour of the defendant or the circumstances giving rise to the sexual acts, is admissible as corroborative evidence in relation to the issue of lack of consent by another complainant, if there is a ‘sufficient relationship’—interms of the circumstances and events giving rise to the offences, between the evidence of the first and second complainants.
27.256 In the Consultation Paper, the Commissions observed that the decision in Phillips has also been the subject of strong academic criticism. The most stringent criticism relates to use of relevance in the High Court’s reasoning in Phillips.
27.257 Associate Professor Jeremy Gans states, for example, that while the Court could have overturned the convictions on the basis of rules relating to the admissibility of propensity or similar fact evidence, the Court, ‘having misunderstood the reasoning left to the jury, instead framed its rejection of the cross-admissibility of the multiple complaints in terms of relevance’. That is, the Court held that ‘evidence that five complainants did not consent could not rationally affect the assessment of the probability that the sixth complainant did not consent’. However, it may be argued that the jury was actually being asked to consider the improbability that all six complainants lied when they said they did not consent to the defendant’s sexual acts—quite a different premise.
27.258 David Hamer has also questioned the logic of the High Court’s decision in Phillips, stating that:
The relevance of such evidence is clear. The fact that the defendant forced other victims to have non-consensual sex with him tends to show he has a propensity for forcing women to have non-consensual sex with him, and it increases the probability that the defendant forced the complainant to have non-consensual sex with him.
27.259 The fact that the High Court made its ruling on the relevance of propensity or similar fact evidence means the case is applicable in all jurisdictions because all retain a requirement of relevance as the threshold test for admissibility.
27.260 The Commissions recognise that there are valid concerns about the effect of this aspect of the decision in Phillips on the conduct of sexual assault proceedings, including those involving family violence. However, the practical implications of Phillips, and for the prospects of joint trials in particular, remain unclear. The TLRI, in its critique of the decision, stated that:
it is not inevitable that the High Court’s ruling on consent will apply. In particular, the Institute considers that the decision’s potentially restrictive impact on the issue of consent can be avoided by approaching the evidence of multiple complainants as tendency evidence that reveals the accused’s tendency to have sexual intercourse without consent. This is relevant to the circumstances of the sexual intercourse.
27.261 A recent Western Australian Court of Appeal decision, Owen JA stated that he did ‘not read anything said in Phillips as meaning that where consent is in issue propensity evidence that might bear on the presence or absence of consent must necessarily be inadmissible’.
27.262 Any proposed legislative solution to overturn the decision would be complex and risk introducing new uncertainties—as is the case with the solution proposed by Cossins and its new test of ‘sufficient relationship’. The Commissions therefore do not make any recommendation in this regard.
Phillips v The Queen (2006) 225 CLR 303.
 Ibid, .
 Ibid,  quoting White J, the trial judge.
 Phillips was a serial offender who was later convicted of other counts of sexual assault while awaiting the outcome of his High Court appeal: D Hamer, ‘Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious’ (2007) 30 University of New South Wales Law Journal 609, 610.
Phillips v The Queen (2006) 225 CLR 303, .
 See Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009), Part 6, 52–58; A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 217–235.
R v Forbes  ACTSC; R v MAP  QCA; R v Hakeem (2006) 163 A Crim R 549.
 Consultation Paper Questions 17–8, 17–9.
 National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; A Cossins, Submission FV 112, 9 June 2010. National Legal Aid opposed reform to address the effects of the decision in Phillips: National Legal Aid, Submission FV 232, 15 July 2010.
 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.
 A Cossins, Submission FV 112, 9 June 2010.
 Consultation Paper, Proposal 17–4.
 A Cossins, Submission FV 112, 9 June 2010. The application of any striking similarities test to such evidence would also be excluded.
 These circumstances would include but not be limited to: (i) the proximity in time of the sexual acts; (ii) the number of occurrences of the sexual acts; (iii) the behaviour accompanying the sexual acts, including evidence of the use of intoxicating substances, pornography, force, violence or threats of force or violence; and (iv) the social context surrounding or relating to the sexual acts: Ibid.
 See, eg, J Gans, ‘Similar Facts After Phillips’ (2006) 30 Criminal Law Journal 224, 224–245; D Hamer, ‘Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious’ (2007) 30 University of New South Wales Law Journal 609. See also Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009), 52–58.
 J Gans, ‘Similar Facts After Phillips’ (2006) 30 Criminal Law Journal 224, 231.
 Ibid, 231.
 D Hamer, ‘Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious’ (2007) 30 University of New South Wales Law Journal 609, 638.
 Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009), 54.
Stubley v Western Australia  WASCA, .