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R v Newman

 

[2020] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newman [2020] QCA 92

PARTIES:

R

v

 

NEWMAN, Scott Graham

(appellant)

FILE NO/S:

CA No 167 of 2019

DC No 1415 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 May 2019 (Lynham DCJ)

DELIVERED ON:

6 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2020

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

  1. The appeal be allowed.
  2. The conviction be quashed.
  3. There be a retrial on that Count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of one count of sexual assault – where the appellant was sentenced to imprisonment for four months to be suspended for an operational period of twelve months – where the appellant appeals against conviction on the ground that the trial Judge erred by admitting into evidence similar fact evidence of two witnesses (Clarkson and Taylor) – where the appellant gave the complainant a lift home when the complainant was intoxicated – where the appellant initiated sexualised conversation with the complainant – where the assault was particularised as touching the complainant in the area of his genitals, without the complainant’s consent – where the evidence of Clarkson and Taylor was consistent with the appellant engaging in sexualised conversation with the complainant during the drive but no more – whether the evidence of Clarkson and Taylor was of any probative force to the central issue at trial of whether the appellant sexually assaulted the complainant – whether the evidence of Clarkson and Taylor would have eliminated any reasonable doubt the jury had from the evidence that the appellant sexually assaulted the complainant – whether the directions to the jury about propensity evidence were sufficient to overcome the impermissible use by the jury of the evidence of Clarkson and Taylor

Criminal Code (Qld), s 24

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, applied

Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied

R v WRC (2002) 130 A Crim R 89; [2002] NSWCCA 210, applied

COUNSEL:

B Power for the appellant

D Balic for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
  2. [2]
    McMURDO JA:  I agree with Boddice J.
  3. [3]
    BODDICE J:  On 23 May 2019, a jury found the appellant guilty of one count of sexual assault.
  4. [4]
    On 28 May 2019, the appellant was sentenced to imprisonment for four months, to be suspended forthwith, for an operational period of twelve months.
  5. [5]
    The appellant appeals that conviction.  He relies on four grounds of appeal:-
    1. (i)
      The learned pre-trial hearing Judge erred by admitting into evidence the “similar fact” evidence of Lyle Taylor and Ashley Clarkson.
    2. (ii)
      The learned trial Judge erred by not giving the jury direction as to the defence of mistake of fact as to consent.
    3. (iii)
      A miscarriage of justice was occasioned by the jury directions as to the use of the evidence of the witnesses, Taylor and Clarkson.
    4. (iv)
      A miscarriage of justice was occasioned by the jury directions as to the use of the appellant’s statements in his interview with police about his habit of driving to collect strangers and transporting them home.

Background

  1. [6]
    The appellant was born on 6 August 1967.  He was aged 48 at the time of commission of the offence and 51 at the date of sentence.
  2. [7]
    The sexual assault was committed on 2 July 2016 in the appellant’s motor vehicle after the appellant had offered the complainant, a man who was unknown to the appellant, a lift home from Fortitude Valley.  The assault was particularised as touching the complainant in the area of his penis, without the complainant’s consent.

Evidence

  1. [8]
    On the afternoon of 1 July 2016, the complainant and his partner drove to a work colleague’s home at Indooroopilly before travelling to Suncorp Stadium.  After watching a football match, they travelled back to the work colleague’s home.  The complainant had consumed a quantity of alcohol throughout that afternoon.  Subsequently, his partner drove him to Fortitude Valley where he met some friends.  The partner returned to her home.
  2. [9]
    The complainant and some friends travelled to a nightclub, arriving between 12.30 and 1 am in the morning and left between 1 and 2 am.  The complainant consumed a quantity of alcohol whilst at the nightclub.  Upon leaving the nightclub, the complainant walked to obtain food.  He then intended to obtain a taxi or an Uber home to his partner’s residence.  The male complainant stopped at a bus stop, thinking it would be a better stop to obtain a taxi or Uber.  He used his mobile phone to download Uber.  Shortly after, a motor vehicle stopped at the bus stop.  He thought it was either an Uber or a chaplaincy program worker.
  3. [10]
    The complainant, under the impression it was an Uber, told the driver where he wanted to go, before hopping into the motor vehicle.  The complainant said there was general discussion during the drive.  At one point, the driver said “do you want to have a threesome with me?”.  The complainant laughed in nervousness.  The complainant next remembered the motor vehicle pulling into a side street.  He told the driver it was not the right way.  The driver responded that it would be alright.  The driver asked the complainant what he was packing and if they could go back to the driver’s place to sort it all out.
  4. [11]
    The complainant said the driver began “groping”; touching the complainant on his inner thigh before cupping, rubbing and groping the complainant’s genitals with his right hand.  After a minute or two of touching, the complainant said “I just want to go home”.  At that point, the driver let go “of my parts”.  The complainant took the opportunity to get out of the vehicle.  As the driver came around the vehicle, the complainant ran towards the main road.  He tried to telephone his girlfriend and then the police, but his telephone went flat.  He ran towards a service station.  He said he was upset and crying and told the attendant he had been sexually assaulted.  He asked her to telephone the police.  The complainant said he did not consent at all to the appellant touching his genital area.  He did not say anything, he was “frozen”.
  5. [12]
    In cross-examination, the complainant accepted that, whilst the male driver was fondling his inner thigh and genital area, he said something to the effect “look I just want to go home”.  At that point, the male driver stopped touching him.  He accepted he was intoxicated, in that the alcohol was having some effect on him.  He accepted he went into the vehicle willingly, after accepting an offer to be driven home.  The driver did not threaten him or act in a violent way.  He had no trouble opening the car door when he went to leave the vehicle.
  6. [13]
    The complainant did not accept that the driver had asked him if he was married and did not recall a conversation as to whether he had a girlfriend.  He denied he introduced the topic of a threesome.  He denied shaking the driver’s hand and asking the driver for a hug before leaving the vehicle.  The complainant did not touch the driver in any way.
  7. [14]
    His only response to the comment about a threesome was to laugh.  He did not say he was not interested.  He also did not say stop when the male driver started to touch his inner thigh.  He did not push his hand away or indicate in any other way that the touching was unwelcome.
  8. [15]
    Bianca Jimmieson was working at a service station in the early hours of 2 July 2016, when a male approached the console area.  He “was not in a good way”.  He was intoxicated and there was just something not right with him.  The male asked her to ring the police.  He was crying and said he “got picked up”.  When she asked him whether it was by a taxi, he said no.  When asked whether it was by an Uber, he was really confused; when asked whether he had been robbed, he replied “just of my dignity”.  Jimmieson said when she asked the male what happened, he looked away from her and said “he touched me”.
  9. [16]
    In cross-examination, Jimmieson accepted that the male approached the service station at some time between 4 and 5 am on the morning of 2 July 2016.  Whilst he was crying a lot, he was not making loud noises.  Jimmieson described him as very reserved in himself, just embarrassed.  Jimmieson accepted that in her statement to police she had described the male as hysterically crying.
  10. [17]
    Dean Stone, a police officer, was tasked with responding to Jimmieson’s telephone call.  He described the complainant as “very tired.  I think, yeah, a little perplexed as to what had happened”.  He was “in a bit, I guess, shock”.  The complainant outlined that he had been assaulted by a male person.
  11. [18]
    Martin Payne interviewed the appellant in relation to the complaint of sexual assault on 13 July 2016.
  12. [19]
    In the interview, the appellant said he was driving his motor vehicle in the early hours of 2 July 2016, when “a bloke on the footpath waved both his hands”.  The appellant thought something was wrong and instinctively pulled over.  He described the male as clearly really, really drunk.  While he was talking, that male opened the passenger door.  The appellant asked whether he wanted him to drive him home.  The male responded yes.  He gave his home location as Gaythorne, before making some comment that his mates tease about the name Gaythorne.
  13. [20]
    As they drove in the direction of Gaythorne, they spoke about various things.  He asked the male if he was married and he said yes.  The appellant said:-

“I said something about she must be a good person to give you a leave pass to, to this time.  Um and he said something like, sometimes she’s good, or something like that.  And I said will she be waiting up for you and he said something like, something like, she doesn’t even like me to watch porn so she certainly won’t be waiting up for me.  Something like that.  And he said what sort of porn do you like?  He said do you, do you, do you watch porn.  I said yes.  He said what sort of porn do you like?  I said I’m gay so I watch gay porn and then he, we were at Gaythorne on the main road and he said, go left here.  I don’t know the name of the street.  He said, pull over.  Something like after that car or under that light or something like that, like he indicated a spot to pull over and I, so I assumed that was his house.  And then he didn’t get out of the, I, I thought he’d just get out.  He said can I?  He thanked me, for the lift and said can I give you a hug and I said yeah, okay.  So he gave me a hug and he said can, will you give me a hug standing up so I said okay.  So we both got out of the car.  I went round to the footpath side and he started walking away.  And I said something like so we didn’t, didn’t hug or anything like that and I was confused because I thought that was where he lived but he was, he was walking off down the street and I think I said, I think asked is this where you live or, and of course he was so, he was just so drunk.  I said can’t I drive you home or why don’t you let me drive you home or something like that and I just think he said no, no, I’m sorry or he kept, he kept on walking.  Um I got back in the car.  I sat in the car for a little while.  Um I did a U-turn and, and left and I didn’t, I didn’t see him.”

  1. [21]
    The appellant said he left his home at maybe 1 am or later, driving around aimlessly.  He was not sleeping well.  The driving made him tired so he could go to sleep.  He did not drive for hours every night.  It was just what he happened to do that night.  He rarely went to sleep before 2 o’clock in the morning.
  2. [22]
    The appellant accepted he picked up the complainant in Fortitude Valley.  He described the complainant as neatly dressed but very drunk, aged 25 to 30 and of average build.  The complainant said “I’ve had a skinful” or something like that.  He smelt of alcohol.  The appellant said he was happy to get a drunk person home safe, provided they live within a reasonable distance.  He described the complainant as talking gibberish and thought it was coming out that way because he was so drunk.  The appellant accepted he had asked the complainant if he was married.
  3. [23]
    The appellant said the complainant directed him to stop.  The complainant thanked him and shook his hand when they were still within the motor vehicle.  The complainant asked the appellant to give him a hug.  They put their arms around each other whilst seated in the motor vehicle.  The complainant asked the appellant to give him a hug standing up.  As they left the vehicle, the complainant started walking away.  The appellant said, apart from the discussion about porn, there was no sexual activity with the complainant that night.  He did not recall the complainant saying anything when the appellant said he was gay.
  4. [24]
    The appellant initially denied asking the complainant whether he would have a threesome with him.  The appellant said he would not be interested in the complainant’s girlfriend.  He would not suggest it because he would not be interested in that threesome.  Later, the appellant did recall something about a threesome.  He remembered the complainant saying he would be up for it but his girlfriend would not do it.  The appellant said he had not proposed the threesome as the complainant said “so it’s not as though … I thought the hug was going to lead to … taking me inside for a, for a threesome.”
  5. [25]
    The appellant denied placing his hand on the complainant’s thigh and asking if he could take him back to his place.  He denied saying the complainant was a good looking kid and asking what he was packing there.  He denied groping or touching the complainant’s genitals through his jeans.  He denied that the complainant ran off from the vehicle.  The appellant said, other than shaking hands and hugging the complainant back, he did not touch the complainant.
  6. [26]
    The appellant said that was the main motivation for providing a lift to the complainant.  When asked if there was another motivation, the appellant replied:-

“As in did I want to have sex with him the minute I saw him or something?… well he’s not really my type … physically, he wasn’t the type I would have set my sights on if I’d seen him at a party or gay bar or something like that.  He, he’s not my, not my type.  I mean, if it had led to that then, then great, but it, it wasn’t my intention for it to lead to that and I never thought it would.  Just, I was more concerned with, with getting him home safely.  I mean I’d have thought a cab wouldn’t have picked him up, that that if he had gotten into a cab or an Uber, especially since he couldn’t say his street name or anything like that, then they wouldn’t have taken him anywhere.  That, that would be my, my impression.”

  1. [27]
    The appellant said he did not often drive around aimlessly.  As a ball park figure, he would drive around aimlessly maybe six times a month.  Normally it would be around midnight or 1 am.  On hardly any of those occasions, did he end up collecting strangers for transportation home.  The appellant said “I mean it doesn’t happen every, every time”.
  2. [28]
    In cross-examination, Payne accepted that CCTV footage had revealed a male matching the complainant’s appearance and clothing walking towards the service station at 4.41 am but said that often CCTV footage timing would be wrong.  He likely put to the appellant that the incident occurred at ten or quarter past five in the morning as the time that the complainant stated the incident occurred.  He accepted that earlier in his statement he had said the incident happened between 4 and 5.30 in the morning.  Payne said there is often a broad range in relation to reports of assault.
  3. [29]
    Taylor gave evidence that he had attended a State of Origin match at Suncorp Stadium on 22 June 2016.  After travelling by himself to the Normanby Hotel, he stopped at a bus stop adjacent to that hotel.  He commenced searching for an Uber.  There was a surcharge operative at the time and he decided to walk in the direction of his home.  His understanding was that, if he went further away from the game precinct, the surcharge would go away.  Taylor said he had not walked very far when he was approached by a vehicle.  The driver asked if he needed a lift.  Taylor responded yes, thinking it was the Uber.  He entered the front passenger side of the vehicle.
  4. [30]
    Taylor said when he looked at the dashboard, there were none of the devices used in Ubers.  When he asked the driver how much it was going to cost, the driver responded “you can just milk me”.  Taylor did not respond.  The driver asked Taylor where he had been and whether he had been drinking.  He asked if Taylor had played football.  Taylor said “when I was younger”.  The driver responded “oh you still got the legs for it” followed by “and your shoulders, you’ve still got the shoulders for it as well”.
  5. [31]
    When they reached Kedron, Taylor asked the driver to stop outside a house.  He asked the driver how much; the driver said “we will work something out”.  Taylor gave the driver $50 and left the vehicle.  He walked up the driveway of an unknown person’s house.  The vehicle remained in the street for a few minutes before doing a U-turn and leaving the area.  Taylor then walked the rest of the distance to his home.  He told his wife.  He subsequently spoke to police.  He was shown a photoboard by police.  He identified the appellant as the person driving the motor vehicle.
  6. [32]
    In cross-examination, Taylor accepted that the driver did not represent in any way that he was an Uber driver.  He did not force Taylor into the vehicle.  The driver did not divert from the route home, followed Taylor’s directions, and pulled over when asked to do so.  Taylor was able to leave the vehicle.  The driver did not threaten him in any way and was not physically violent towards him.  The driver did not touch or fondle his genitals.  Taylor accepted that, in his initial statement to police, he did not mention anything about the comment “just milk me”.  He denied, however, that the driver had not said those words or the words “don’t worry, we’ll work something out”.  He denied that the driver declined the $50 offered to him.
  7. [33]
    Clarkson recalled an incident in Moorooka in the early hours of 23 May 2014.  He had spent the afternoon and the evening drinking with friends.  Clarkson said he was definitely not drunk.  He was just having a good time.  At about 1 am, he decided to go home.  He unsuccessfully tried to order a taxi.  He then decided to walk to a local pub to see if he could obtain a taxi from there.  It was a five to ten minute walk.  The pub was closed so he commenced walking, hoping to flag a taxi on the way.  After about no more than five or ten minutes walking, a vehicle pulled up.  The driver asked if he needed a ride.  He replied yes but that he lived all the way down at Runcorn.  The driver replied that was fine.
  8. [34]
    Clarkson said there was general chitchat with the driver on the drive home.  The driver asked Clarkson if he liked porn.  Clarkson replied “yeah I do”.  The driver asked what kind of porn.  Clarkson replied “gobbies and shit”.  The driver asked Clarkson if he liked girl on girl and after Clarkson responded yes, asked if he liked guy on guy.  Clarkson said no.  The driver then said “you just said you did”.
  9. [35]
    Clarkson did not travel all the way to Runcorn with the driver.  He did not like the situation after that conversation.  The passenger door was unlocked.  He took an opportunity to leave the car.  As he closed the door, the driver drove off.  Clarkson went to a service station and obtained a taxi home.
  10. [36]
    In August 2016, he was approached by police.  He was shown a board contained 12 photographs of different men.  He identified the appellant as the driver of that vehicle.
  11. [37]
    In cross-examination, Clarkson accepted the driver did not threaten him in any way and was not violent towards him in any way.  The driver did not pull him into the motor vehicle.  The driver drove in the direction he indicated and did not at any time lock the doors to prevent him from leaving the car.  At no stage did the driver touch Clarkson.  The driver did not touch his genitals.

Pre-trial application

  1. [38]
    Prior to his trial, the appellant made application pursuant to section 590AA of the Criminal Code for a ruling that there be excluded from the evidence at his trial the testimony of Clarkson and Taylor.
  2. [39]
    That application was initially heard and refused on 18 December 2017.  At that time, the appellant was charged on indictment with one count of sexual assault with the circumstance of aggravation and one count of sexual assault.  The first count related to a different male complainant.
  3. [40]
    Following the initial refusal of the application to exclude the evidence of Clarkson and Taylor, the Crown entered a nolle prosequi in respect of the count of sexual assault with the circumstance of aggravation.  Against that background, the appellant made application to reopen that previous ruling.
  4. [41]
    The appellant contended that the evidence of Clarkson and Taylor was not admissible in his trial of the offence of sexual assault as the evidence only involved sexualised conversations initiated by the appellant with no touching while the allegation was that the appellant had touched that person sexually without his consent.  Further, there was no striking similarity between the accounts of Clarkson and Taylor and that of the complainant.
  5. [42]
    Burnett DCJ ruled that the evidence was admissible and that its admission would not occasion any unfair prejudice to the appellant.  The substantive issue at trial was whether the sexual assault occurred as described by the complainant.  The evidence sought to be adduced demonstrated a pattern of conduct by the appellant “supporting a conclusion that he travels the streets in the early hours in search of young, perhaps fit looking men, to join him in a homosexual activity”.

Appellant’s submissions

  1. [43]
    The appellant submits that the evidence of Taylor and Clarkson was not admissible.  Evidence that the appellant had previously initiated sexualised conversations was not admissible to prove that the appellant committed a sexual assault.  None of the evidence of Taylor or Clarkson revealed criminal conduct by the appellant.  It was, however, capable of being very prejudicial.  The dispute at trial about the nature of the conversation between the complainant and the appellant, and about who initiated that conversation, was a subsidiary issue.  The prosecutor relied upon the evidence to describe the appellant as “a person who targets intoxicated men” and to assert the appellant had “targeted” the complainant.
  2. [44]
    The exclusionary rule in the relation to propensity evidence applies to evidence of other conduct that may give rise to prejudice.  Evidence of discreditable conduct will only be admissible if, when taken with the other evidence in the case, there is no reasonable view of the evidence which is consistent with the innocence of the accused.
  3. [45]
    The fact that the evidence of Taylor and Clarkson had common features with the complainant’s account of the lead up to the offence was not sufficient to render the prejudicial evidence admissible.  There was a reasonable view of the other evidence, namely that the appellant had chatted up the other men but that the chatting up was not done in order to commit sexual assault upon those men.
  4. [46]
    The appellant submits that the trial Judge erred in not directing the jury as to mistake of fact under section 24 of the Code.  A direction was requested by the appellant’s counsel.  Notwithstanding that the complainant gave direct testimony that he had not consented, his responses to both the sexualised conversation and the initial touching were relevant to whether the appellant may reasonably have thought that the complainant had consented to the touching of his genitals on the outside of his jeans.  The complainant’s description of the aggravation of the appellant’s actions was evidence upon which the jury could legitimately entertain a reasonable doubt about whether the appellant could honestly and reasonably believe the complainant had consented to the final part of his conduct, which was the charged offence.
  5. [47]
    The appellant submits that if the evidence of Taylor and Clarkson was admissible, there was a miscarriage of justice by reason of the directions given to the jury as to the permissible use of their evidence.  The trial Judge ought to have directed the jury that their evidence was admissible only to prove the appellant’s propensity to commence sexual conversations with people he had picked up whilst driving late at night.  The jury were impermissibly permitted to use the evidence to reason that the appellant had sexually assaulted the complainant.  The tenor of the prosecution’s closing address was that the evidence of Clarkson and Taylor established a modus operandi for the appellant to target intoxicated men.
  6. [48]
    Finally, the appellant submits that a miscarriage of justice was occasioned by the directions given as to the use of the appellant’s late night driving habits.  When combined with the prosecutor’s use of the evidence of Taylor and Clarkson, the directions given to the jury amounted to the prosecution seeking to rely upon the appellant’s own description of his driving habits as evidence of bad character that was in some unspecified way relevant to the jury’s determination of the appellant’s guilt of the charged offence.  The trial Judge should have directed the jury that they could not use the evidence in that way.  Instead, there was an endorsement of the prosecution’s submission by repeating it without criticism.  The jury were also not given the ordinary, general warnings about acting upon a general propensity to bad conduct.

Respondent’s submissions

  1. [49]
    The respondent submits that the evidence of Clarkson and Taylor was properly admitted and was of high probative value.  Both were intoxicated men, alone, trying to get home in the early hours of the morning, who were approached by the appellant who orchestrated a sexualised atmosphere whilst driving them home.  The only missing thread in their evidence was the culmination in a sexual touching.  That difference did not disqualify the evidence as similar fact evidence.  It was the common elements of the orchestrated sexual interaction which formed the backbone of the offence committed against this complainant.  The similar fact evidence showed an important connection to the commission of the offence as charged, giving the prosecution case significant cogency.  It also established the appellant’s approach to the complainant as being a necessary manifestation of his sexually motivated interaction which was then acted upon to commit the offence.
  2. [50]
    Against that background, there was no misdirection as to the use of the similar fact evidence.  Whilst the prosecutor did, in address, point out the contextual background, the prosecutor also stated the jury had to accept the complainant beyond reasonable doubt, and that if they did not they would acquit the appellant.  The prosecutor addressed the jury to the effect that the use to which the similar fact evidence was made was that there was a demonstrated pattern, inconsistent with innocence, as revealed contextually by the evidence of similar fact.  The trial Judge expressly directed the jury that they must not reason that the appellant must have committed this offence by virtue of the similar fact evidence.  The jury were directed that they needed to be satisfied of that conduct by the similar fact evidence before it was used and that they should only use it if they were satisfied it was strikingly similar.
  3. [51]
    The respondent submits that the trial Judge properly declined to direct the jury in respect of mistake of fact.  The appellant did not give evidence.  In his police interview, he denied touching the complainant on his thigh or genitals.  The appellant also said there was no subjective beliefs on his part that anything sexual was going to occur with the complainant.  The complainant gave evidence he did not consent.  His nervous laugh in response to the initial sexualised comment could not be construed as indicating consent.  Nothing in the complainant’s evidence could be said to be capable of raising a question as to whether the appellant honestly, much less reasonably, believed that the complainant was giving his consent to being touched in the area of his penis.  Passivity does not satisfy the necessary factual threshold.
  4. [52]
    Finally, the respondent submits that there was no misdirection as to the use of the evidence that the appellant would drive late at night.  The jury were not told that this evidence was bad character evidence or similar fact evidence.  The prosecutor used that evidence to cast doubt as to the veracity of the appellant’s interview with police.  The trial Judge expressly directed the jury it was a matter for them as to what weight they attached to any of the appellant’s answers.  Although the trial Judge did use the term that it led to guilt, that reference was quickly followed by an assertion that the content was also consistent with innocence.  Defence counsel raised no concerns about the direction.

Consideration

Grounds 1 and 3

  1. [53]
    Propensity evidence is a special class of circumstantial evidence.  By its nature, its prejudicial capacity is high.  Accordingly, such evidence, to be admissible, must be highly probative and its admission is subject to the satisfaction of stringent requirements.
  2. [54]
    In Pfennig v The Queen[1] Mason CJ, Deane J and Dawson J held, in respect of propensity evidence:-

“..  the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.  Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.  Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.” (Citations omitted)

  1. [55]
    The need for similar fact evidence to be highly probative supports the requirement, as explained in Pfennig, that the evidence “have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”[2]
  2. [56]
    The requirement to give cogency to the prosecution case or some aspects of it was further explained by the High Court in Phillips v The Queen[3]:-

“What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations.  First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case.  Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions.  Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.  Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.  But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.”  (Citations omitted)

  1. [57]
    In the present case, the evidence of Clarkson and Taylor was probative of a jury’s consideration as to the likelihood of the complainant, rather than the appellant, introducing sexualised conversation in the drive from the bus stop to the point of departure from the vehicle.  It may also provide context as to the circumstances in which the complainant had entered the appellant’s vehicle.  However, that evidence was of no probative force to the central issue in dispute at the trial, namely, whether the appellant had sexually assaulted the complainant by touching his penis on the outside of his jeans without consent.
  2. [58]
    Nothing in Clarkson’s or Taylor’s evidence gave rise to a suggestion of sexual contact by the appellant to either of them.  Their evidence was consistent with the appellant engaging in sexualised conversation with the complainant but no more.  That evidence added nothing to the jury’s determination of whether the evidence satisfied it beyond reasonable doubt that the appellant sexually assaulted the complainant.
  3. [59]
    In that respect the observations of Hodgson JA in WRC[4] are apposite:

“In my opinion, what is meant is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused.  That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.”

  1. [60]
    A consideration of Clarkson’s and Taylor’s evidence was capable of supporting a rational view consistent with the innocence of the appellant of the offence.  Whilst the similarities in the accounts of Clarkson and Taylor, accepting that evidence, could support a conclusion that the appellant had engaged in sexualised conversations with intoxicated young men he drove home, the dissimilarities, namely, that the appellant did not seek to physically touch either Clarkson or Taylor, were such that even accepting the truth of their accounts, it would not eliminate any reasonable doubt the jury had from the evidence that the appellant sexually assaulted the complainant without his consent.
  2. [61]
    That the jury was permitted to use this evidence to reason that the appellant had sexually assaulted the complainant was a central tenet of the prosecution’s address to the jury.  That contention was summarised by the trial Judge, without further direction.  The routine directions to the jury about propensity evidence were insufficient to overcome the impermissible use of the jury of the evidence of Clarkson and Taylor to support a finding that the appellant was guilty of the offence of sexual assault of the complainant.
  3. [62]
    The appellant’s conviction must be quashed and retrial ordered.

Grounds 2 and 4

  1. [63]
    It is strictly unnecessary to consider the remaining grounds of appeal.  In respect of Ground 2, it is inappropriate to do so as, whether a direction is to be given as to mistake of fact will depend upon the state of the evidence led in any subsequent trial.
  2. [64]
    In respect of Ground 4, as there may be a retrial, it is important to note that the trial Judge, in summing up to the jury, observed to the jury that in order to demonstrate the appellant’s guilt of the offence, “the prosecution relied upon the appellant’s statements to the police in his interview that on maybe six occasions he would go driving around late at night or early in the morning and that on occasion, which he said was hardly, he would pick up strangers and transport them home”.
  3. [65]
    At best, the evidence of the appellant’s driving practices amounted to evidence of bad character.  If reliance was to be made of it by the prosecution, the jury should have been specifically directed that evidence of bad character in that way was irrelevant to the jury’s determination of the appellant’s guilt of the offence charged and, further, ought to have been given warnings against acting upon a general propensity on the basis of bad character.

Orders

  1. [66]
    I would order:
  1. (1)
    The appeal be allowed.
  1. (2)
    The conviction be quashed.
  1. (3)
    There be a retrial on that count.

Footnotes

[1](1995) 182 CLR 461 at 482 – 483.

[2]Pfennig v The Queen (1995) 182 CLR 461 at 485.

[3](2006) 225 CLR 303 at 323 – 324 [63]; [2006] HCA 4 at [63].

[4](2002) 130 A Crim R 89 at 102; [2002] NSWCCA 210 at [29].  This reasoning was approved by Gleeson CJ in HML v The Queen (2008) 235 CLR 334 at 359 [27]; [2008] HCA 16 and by Crennan and Kiefel JJ in BBH v The Queen (2012) 245 CLR 499 at 546 [155], 547 [157]; [2012] HCA 9 at [155], [157].

Close

Editorial Notes

  • Published Case Name:

    R v Newman

  • Shortened Case Name:

    R v Newman

  • MNC:

    [2020] QCA 92

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Boddice J

  • Date:

    06 May 2020

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status