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  • Unreported Judgment

The Queen v SGW

 

[2019] QDCPR 74

DISTRICT COURT OF QUEENSLAND

CITATION:

R v SGW [2019] QDCPR 74

PARTIES:

THE QUEEN

(respondent)

v

SGW

(defendant/applicant)

FILE NO/S:

ID22/19

DIVISION:

Criminal

PROCEEDING:

Application under s 590AA of the Criminal Code

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

27 June 2019

DELIVERED AT:

Ipswich

HEARING DATE:

16 May 2019 

JUDGE:

Horneman-Wren SC DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPLICATION – s590AA – EVIDENCE – ADMISSIBILITY – QUASHING INDICTMENT – SEVERANCE OF INDICTMENT – s597A – CROSS-ADMISSIBILITY OF EVIDENCE – where applicant seeks to quash or sever indictment – where applicant contest the joining of counts 4 and 5 with count 3 – where applicant contests the cross-admissibility of evidence led for counts 4 and 5 in respect of count 3 on the indictment – where the applicant submits that the admissibility of such evidence would be prejudicial to defendant – where the applicant submits that such evidence should not be considered propensity, similar fact or evidence of a sexual interest – whether such evidence fails to meet the necessary common law tests – whether such evidence is demonstrative of a sexual interest in the complainant

COUNSEL:

Mr S Neaves for the applicant

Mr Needham for the respondent

SOLICITORS:

Walker Pender Group for the applicant

Office of  the Director of Public Prosecutions for the respondent

  1. [1]
    The applicant is charged on indictment with five offences. Relevantly to this application he is charged with one count of rape (count 3), one count of possessing child exploitation material (count 4) and one count of distributing child exploitation material (count 5). He applies to have the indictment quashed because count 3 is not properly joined with counts 4 and 5. Alternatively, he seeks severance of the indictment and a separate trial of count 3.

Particulars of the counts

Count 3

  1. [2]
    The complainant in respect of the rape is a child. At the relevant time she was 9 years old. Her step-father is an acquaintance of the defendant. They met in prison. Upon his release from custody the defendant resided at the home of the step-father where the complainant, her mother and younger sister also lived.
  1. [3]
    The allegation is that one evening the defendant invited the complainant to follow him into the spare room where he was staying and digitally penetrated her genitalia as she lay on his bed. It is alleged that the offending was interrupted by the sound of movement elsewhere in the house. The complainant was told to lie under the bed, which she did. Later, she was told to go back to her room and not to tell anyone what happened. She complied, but told her mother the next day. He mother confronted the defendant who denied wrongdoing. The complainant resiled from her allegation and the defendant remained in the house.
  1. [4]
    At a later time he was returned to custody, but it was contemplated that he would return to the complainant’s family home upon his release. Seemingly upon learning of this possibility, the complainant renewed her allegation and police were notified.

Count 4

  1. [5]
    After alerting the police to the allegation, the complainant’s mother and step-father realised that the defendant had left his phone in their house. Count 4 concerns their locating two videos containing child exploitation material on that phone. The first showed a female aged 8 to 10 performing oral sex on an adult male. The second showed a 6 to 8 year old female being vaginally raped by an adult male. It is alleged that the accused knowingly possessed those videos.

Count 5

  1. [6]
    Count 5 relates to a series of Facebook messages alleged to have been sent from the defendant’s phone during the time he was residing with the complainant’s family. The messages include the following:
  • My friend’s stepdaughter is marrying me I’m 27 and she’s ten and my baby mumma my wife Crystal formally nknow as Crystal pates she’s ten and scared of big cock
  • ‘crsy can you be my blow job baby today crys I wish to show my cock little baby girls incest krys come here and suck a big family members cock and force them to rape my inbred ass and spreading there kittys for daddy cum in me and fill me with inbred dna
  • I’m an abomination I’m gunna eape so many little girls Amber Michelle both crys nat all sucking big brothers cock and take cum like a good dog rape victims
  • Iv been touching little girl all the time and now Gregs not there Cryn get naked Crystal will you marry me big brother an make me your wife and incest lover and have inbred baby’s and then rape the Baby girls for a day if they die we get to fuck a dead baby’s ass
  • Crys pates have my cock SGW’s 81/2 inch cock
  • I’m begging you please crys marry me
  • Crys your my wife now
  • I like them really young
  • I’m into anything role play fantasies incest beastiality (errors as they appear in the original document and names changed)
  1. [7]
    The crown notes the following matters which it says are relevant to those messages:
  1. (a)
    The defendant was aged 27 at the time he was staying with Jones; 
  1. (b)
    The messages are dated within the period he was staying there; 
  1. (c)
    The complainant in count 3 is called Krystal; 
  1. (d)
    Krystal was 9 at the time; 
  1. (e)
    Her sister is called Natalie; 
  1. (f)
    Their step-father is called Greg; 
  1. (g)
    The messages speak of incest – there is no family relationship between the accused and the complainant. 

Relevant legislative provisions

  1. [8]
    Section 567(2) of the Criminal Code provides: 

“Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.” 

  1. [9]
    Section 7A(1) of the Criminal Code provides: 

597A  Separate trials where 2 or more charges against the same person

  1. (1)
    Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.

The Parties’ Contentions

  1. [10]
    The applicant contends that counts 3, 4 and 5 are improperly joined. The rape which is count 3 alleges sexual offending of a physical kind which differs significantly from the distribution and possession of child exploitation material counts. He contends that there is no course of conduct, the child exploitation offences not flowing from the rape, the complainant child having no knowledge of them, and there being no common or similar factual matrix.
  1. [11]
    The applicant contends that none of the evidence concerning counts 4 and 5 is admissible in respect of count 3. He submits that the evidence in respect of counts 4 and 5 has no probative value in assessing count 3 and is only prejudicial. He contends that none of the evidence concerning any of the counts is admissible as similar fact evidence on the other counts. He submits that counts 3, 4 and 5 are not factually within a series of offences, nor are they of a similar nature.
  1. [12]
    The applicant contends that even if it is accepted that he is the author of the messages the subject of count 5, the context in which they were written would demonstrate only that he had an interest in role play and fantasy, and could not demonstrate that he had a sexual interest in children generally, nor the complainant in count 3 particularly. It is submitted that the messages “can’t demonstrate that there is a rational view, let alone the only rational view of that that he must have therefore undertaken the rape account (sic)”.
  1. [13]
    He contends that for the evidence of the child exploitation material to be admissible it requires a finding that its possession must equate to the committing of sexual offences for it to follow that such be the only rational view, and that there is no basis for forming a view that because a person either possesses or distributes such material they are therefore the perpetrator of an offence of sexual violence.
  1. [14]
    The applicant submits the matters which the respondent would rely upon as identifying the complainant in count 3 as the girl referred to in the messages in count 5 do not do so, and draws attention to the difference in the spelling of the complainant’s name and that the complainant was in fact 9 years old at the relevant time, not 10 as referred to in the messages. He contends that the reference to “nat” in the messages is not clearly a reference to any person at all, or certainly not to the complainant’s sister, Natalie. He submits that there is no evidence of the sister being referred to by the contraction “Nat”.
  1. [15]
    The applicant submits that there is no evidence in the messages of any willingness or intention to act upon any sexual interest. In oral submissions, Mr Neaves submitted that:

“Seen in the light of the remainder of those messages where my client’s alleged to be speaking about perpetrating all kinds of acts on himself and on others and having them perpetrated on him, its nothing more than part of the narrative of his sexualised discussion rather than demonstration that he is prepared to do that specific thing but not others.” 

  1. [16]
    The respondent contends that the offences are part of a series of offences of the same or similar character; sufficient nexus between the offences being established by the evidence in respect of each count being cross-admissible in respect of all other counts. It contends that evidence which establishes counts 4 and 5 is admissible in proof of count 3 as it demonstrates the applicant’s sexual interest in children of the age of the complainant in count 3, and, in respect of count 5, a sexual interest in the complainant specifically.
  1. [17]
    The respondent further contends that if the jury was satisfied that the applicant authored the messages the subject of count 5, that would logically bear on their consideration of whether he knowingly possessed other child exploitation material; which is count 4. If the applicant was willing to author and send messages which referred to, amongst other things, the rape and sexualisation of children, that would logically bear upon the improbability of the accused not being in knowing possession of the videos the subject of count 4, or of there being some other innocent explanation.
  1. [18]
    Further, the respondent submits that if the jury were to accept that the applicant possessed child exploitation material depicting sexual activity by girls of a similar age as the complainant in count 3, that evidence, although not specific to the complainant or the act she alleges, is capable of demonstrating a general sexual interest of the applicant in girls of that age which bears upon the likelihood of his acting upon that interest in the manner alleged in count 3.

Consideration

  1. [19]
    As the respondent submits, a nexus between offences may establish them as a series for the purposes of s 567(2) of the Criminal Code permitting their joinder on the same indictment.  That nexus may arise from the evidence in respect of one being admissible in proof of the other. 
  1. [20]
    In De Jesus v R,[1] Gibbs CJ referred to the statement in Reg v Kray,[2] referred to with implicit approval in R v Ludlow[3] that: 

“…offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them.  Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.” 

  1. [21]
    Gibbs CJ also referred to the statement of Lord Cross of Chelsea in R v Boardman[4] that: 

“When in a case of this sort the prosecution wishes to adduce ‘similar fact’ evidence which the defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately.” 

  1. [22]
    De Jesus was itself a case in which the High Court concluded that the two counts on the indictment were improperly joined because the evidence on one was not admissible on the other, applying what had been said in Sutton v R[5] that where there was a risk of impermissible prejudice because the evidence on one count is not admissible on the other, there should be separate trials ordered.  However, none of the reasoning of the plurality[6] casts doubt upon the joinder being proper when the evidence in respect of one count is admissible on the other. 
  1. [23]
    In R v Cranston,[7] Macrossan J (as his Honour then was) having referred to Sutton, De Jesus and Ludlow said: 

“It seems clear that the requirement that nexus should exist is an additional requirement upon the requirement of ‘similar character’ and, however imprecise they may be, these words call for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present.” 

  1. [24]
    His Honour went on to observe:

“The courts may find that an appropriately liberal exercise of discretion to sever is called for in doubtful cases.  Certainly it will be necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character.  This approach will at least ensure that time is not wasted in trying cases involving multiple counts which appeal courts, taking a different view from the trial judge, consider do not satisfy the test and were improperly joined.  Of course, if the counts do satisfy the test and there is no circumstance calling for the exercise of the discretion against joinder, then there can be clear advantages in proceeding with a number of counts together.” 

  1. [25]
    The applicant’s contention that counts 3, 4 and 5 are not a series of offences, and that the evidence in respect of counts 4 and 5 is not admissible on count 3, is based upon count 3 being an allegation of a physical offence and thus of a different character to each of counts 4 and 5, even if it were to be accepted that count 5 related, at least in part, to the complainant in count 3. For the purposes of analysis it is convenient to refer to “the offence”, being the offence in respect of which the evidence is sought to be admitted, and the “other conduct” being the other matters which constitute the evidence sought to be adduced in proof of the offence.
  1. [26]
    A number of cases which have considered such issues have concerned factual circumstances in which both the offence and the other conduct have involved physical acts directed towards the complainant in the offence. In such cases statements have been made about the ability of such physical acts to demonstrate a sexual interest of the defendant in the complainant upon which the defendant has been willing to act and thereby demonstrate propensity or motive to commit the offence.[8] 
  1. [27]
    In the context of dealing with “relationship evidence” and its relevance in demonstrating sexual interest, Kiefel J (as her Honour then was) said in HML v R:[9] 

“The term ‘relationship evidence’ refers to all the conduct of a sexual kind that has taken place between the accused and the complainant.  It encompasses sexual conduct which is an offence, often referred to as ‘uncharged acts’, and misconduct which may not be an offence…

Clearly, relationship evidence is relevant as showing the sexual interest of the accused in, or the ‘guilty passion’ for, the complainant.  Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts.  There can be little doubt about its probative force.  It may reveal a tendency in the accused, sometimes described as a motive.  Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed.  It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so.  The evidence may then render more probable the commission of the offences charged.” 

  1. [28]
    In R v Bauer,[10] in a single joint judgment, the High Court cited the passage from Kiefel J’s judgment in HML as demonstrating the significant probative value of a complainant’s evidence of other charged and uncharged sexual acts.  The court observed[11] that: 

“Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts.” 

  1. [29]
    The court went on to say:[12] 

“Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.  In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act. 

The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the ‘very high probative value’ of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.” 

  1. [30]
    However, as HML itself demonstrates, in a particular case there may be evidence of other conduct which, although itself not constituting an offence (charged or uncharged) by the accused against the complainant, may show sexual interest.  In HML, as well as evidence of uncharged sexual acts, the complainant had also given evidence of the accused filming her doing cartwheels having asked her to take her clothes off and of having bought her G-string underwear.  It had been submitted that each of those matters showed that the accused had a sexual interest in the complainant, who was his daughter. 
  1. [31]
    In HML, Hayne J with whom Gummow and Kirby JJ agreed, held that evidence of other sexual acts by the accused directed at the complainant would be relevant because it would show the accused sexual interest in the complainant which he had demonstrated by those acts.[13]  However, for the evidence to be admissible, it must satisfy the test stated in Pfennig v The Queen.[14]  The test in Pfennig operates to exclude otherwise relevant evidence.[15]  The test is that the evidence is to be admitted only if there is no rational view of it that is consistent with the innocence of the accused.[16]
  1. [32]
    Hayne J concluded that where the evidence is of other sexual conduct which would constitute an offence by the accused against the complainant, it would usually satisfy the Pfennig test because, in the context of the prosecution case, there will usually be no rational (reasonable) view of it consistent with innocence. 
  1. [33]
    His Honour explained:[17]

“That is there will usually be no reasonable view of the evidence of other sexual conduct which would constitute an offence by the accused against the complainant other than as supporting an inference that the accused is guilty of the offence charged.”

  1. [34]
    In respect of conduct not constituting an offence, Hayne J said:[18]

“Evidence of other conduct which did not constitute any offence, but which it is alleged demonstrated the accused’s sexual interest in the complainant (as was the case with HML) may present more difficult issues.  It may be harder to decide whether, in the context of the prosecution case, there would be no reasonable view of that evidence consistent with innocence.  Deciding whether the evidence, if accepted, demonstrated the accused sexual interest in the complainant will, in some cases, turn upon the construction put on the conduct in question.  The conduct may be equivocal.  If interpreting that conduct as showing sexual interest depends upon the prior acceptance of other evidence of separate events demonstrating that interest, evidence of the conduct would not be admissible.”

  1. [35]
    His Honour further explained:[19]

“Applying the test stated in Pfennig to evidence of acts which do not constitute sexual offences, but are alleged to disclose the accused’s sexual interest in the complainant, may be more difficult.  The difficulty lies in deciding whether, and to what extent, the evidence does disclose sexual interest.  The evidence tendered in this case about the appellant filming the complainant and buying a particular kind of underwear for her reveals at least some of the issues that will require examination in connection with evidence of that kind.”

  1. [36]
    Applying that reasoning to the evidence of the two forms of conduct which, in that case, were alleged to demonstrate the accused sexual interest in the complainant although not constituting sexual offences, his Honour considered that the filming of the child as described by the complainant “had such sexual overtones as to admit only of the conclusion that it demonstrated the appellant’s sexual interest in her”. By contrast, Hayne J considered that the evidence about the underwear was equivocal.[20]  That evidence was equivocal in that it required interpretation before it could be concluded that it demonstrated sexual interest.  Whilst it could bear that interpretation, it was not inevitable that it did so.  The equivocation could only be removed upon proof of the other events described by the complainant.  It could not, therefore, satisfy the Pfennig test for admissibility and had to be excluded.[21] 
  1. [37]
    What is apparent from Hayne J’s reasons is that conduct not constituting sexual acts by an accused against the complainant may nevertheless be conduct demonstrative of the accused’s sexual interest in the complainant. If such conduct does satisfy the Pfennig test then it will admissible as evidence of the accused’s sexual interest in the complainant and in that way be used in proof of the charged sexual offence.  That sexual interest will have been demonstrated by the accused having acted upon it in that way.
  1. [38]
    In BBH v The Queen[22] Crennan and Kiefel JJ, whilst noting Hayne J’s consideration of the acts in HML which were not sexual acts, that is the filming of the child and the purchase of the underwear, said:

“The latter evidence, of acts which were not sexual acts, might be thought to be relevant to show the accused’s sexual interest in the complainant.  However, it was bound up with the complainant’s evidence of the uncharged sexual acts.  For the most part, attention was not directed in the reasons to the complainant’s evidence of the filming and purchase of underwear to determine whether that conduct, viewed individually or together, was sufficient to demonstrate sexual interest and, if so, whether the test in Pfennig applied.”

  1. [39]
    Their Honours confirmed that where sexual interest is demonstrated the test in Pfennig is attracted.[23]  In relation to the application of the Pfennig test, their Honours went on to explain how the enquiry as to “whether there is a rational view of the [circumstantial] evidence that is consistent with the innocence of the accused” is to be addressed.  Their Honours emphasised[24] that the evidence demonstrating sexual interest of the accused and the complainant is not to be viewed in isolation, but in the context of the prosecution case.  That involves the assumption that the prosecution case and the propensity evidence will be accepted by the jury.[25]
  1. [40]
    Citing with approval the approach to the Pfennig test suggested by Hodgson JA in R v WRC[26], their Honours explained the test thus:

“The approach to the Pfennig test suggested by Hodgson JA in WRC was referred to with approval by Gleeson CJ and Heydon J in HML.  It requires the assumption that all the other evidence in the prosecution case, although accepted by the jury, leaves the jury with a reasonable doubt about the guilt of the accused.  The propensity evidence must be such that, when considered with the other prosecution evidence, there will then be no reasonable view of it consistent with the innocence of the accused.  As Hodgson JA further explained:

‘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. [41]
    In his reasons in BBH, Heydon J had explained the Pfennig test in these terms:[27]

Pfennig v The Queen held that on the assumption that the similar fact evidence will be accepted as true, but that without it the other evidence will be insufficient to exclude a reasonable doubt, the similar fact evidence will be inadmissible unless there is no view of it, viewed in the context of the prosecution case, consistent with the innocence of the accused.”

  1. [42]
    R v Douglas[28] is another case where the evidence said to show sexual interest was not conduct of the accused directed at the complainant which would constitute an offence.  The accused had painted a picture of the complainant in which he did not have a shirt on, but which had been painted from a photograph which the accused had taken of the complainant in which he had been wearing a shirt.  There was also a short video recording of the accused wrestling with the complainant. 
  1. [43]
    This evidence had been admitted without objection at the trial and there was no suggestion on the appeal that it had been wrongly admitted. The prosecutor, when asked by the trial judge, had disavowed that it was being tendered to demonstrate sexual interest. However, in her address to the jury the prosecutor had referred to it as evidence of grooming behaviour. It was, therefore, being used to demonstrate sexual interest despite the prosecutor’s earlier disavowal. The issue was whether the judge had given adequate directions as to how the jury could use the evidence.
  1. [44]
    Having considered the Pfennig test as explained in HML and BBH, McMurdo JA, with whom Sofronoff P and Brown J agreed, concluded:[29] 

“The jury should have been instructed that they were not to find, from these exhibits, that the accused had a sexual interest in the complainant unless that fact was established to their satisfaction beyond reasonable doubt.  If the evidence had an interpretation which was innocent, in that it did not reveal a sexual interest, the jury was not to make that finding.” 

  1. [45]
    The evidence was capable of demonstrating sexual interest, but only if the jury were satisfied that it did so beyond reasonable doubt.
  1. [46]
    On this understanding of the relevant test, I turn to apply it to the evidence in this case.

Is the evidence in respect of counts 4 and 5 admissible on count 3? 

  1. [47]
    The issue is whether the messages which give rise to count 5 are admissible as evidence of sexual interest of the applicant in the complainant herself or, more generally, of children of the complainant’s age. The first consideration is whether, in the context of the prosecution case, the jury could consider that the relevant messages did relate to the child complainant in count 3. If so, that may demonstrate sexual interest in her specifically rather than children of that age generally. In my view, the jury could easily form that opinion.
  1. [48]
    Whilst the age of the child is not precisely correct, it is very close. Any significance in that difference in age is diminished when other features which point strongly to the child being the subject of the messages are considered. Most notable amongst those is the child’s name. Again, the spelling of the child’s name is not precisely correct. The names “Krystal”, “Crystal”, “Crys”[30] and “Krys” are variously used.  The applicant may never have known how the count 3 complainant child’s name was actually spelt.  The messages are also replete with other spelling mistakes.  It would be entirely open for the jury to conclude that the child referred to was Krystal, the complainant on count 3 notwithstanding the incorrect spelling of the child’s name.  It would be open to them to conclude that to the exclusion of all other possibilities.  This is even more so when other indicia are considered: the reference to “Greg” and the child being touched when he was not there, Greg being the name of the child’s step-father; the fact that that the messages were dated within the period the applicant was residing in the house; and, but less strongly, the reference to “Nat” which might be a reference to the complainant’s sister, Natalie. 
  1. [49]
    In my view, those matters point strongly to the conclusion that the child referred to in those messages is the child complainant in count 3. In my view the jury could conclude that that was so, to the exclusion of all other possibilities.
  1. [50]
    Once it is accepted that in the context of the prosecution case it is entirely open for the jury to conclude that the messages refer to that child, the conclusion that they demonstrate the defendant’s sexual interest in the child is inescapable. To adopt the description used by Hayne J in HML when referring to the filming of the complainant in that case, the messages here have such sexual overtones as to admit only of the conclusion that they demonstrate the applicant’s sexual interest in her.  As the allegation in count 5 demonstrates, the distribution of the messages may constitute an offence, but even if it could not be considered sexual conduct which would constitute an offence by the applicant against the complainant, it would nonetheless be conduct by the applicant by which he gave expression to his sexual interest in her.[31] 
  1. [51]
    There is nothing equivocal about the messages in the sense described by Hayne J in HML.  For the jury to interpret the messages as evidence of sexual interest in the child is not dependent upon proof of any other events described by her.  The conclusion that they demonstrate a sexual interest is inevitable. 
  1. [52]
    For these reasons, the evidence of the messages is admissible in proof of count 3: it passes the test in Pfennig as explained in BBH.  If it is assumed that the other evidence, although accepted by the jury, left them with a reasonable doubt about the guilt of the applicant in respect of count 3, the evidence of the messages “must surely resolve it”.[32]  There can be no view of the evidence of the messages that, when considered with the other prosecution evidence, is consistent with the applicant’s innocence.  There can be no other innocent explanation for the content of those messages. 
  1. [53]
    For those reasons, the evidence of any messages which forms the basis for count 5 is admissible in proof of count 3. As such there is a nexus between them such that they are a series offences of similar character, the character being sexual offences against, or concerning, a child. They are properly joined on the indictment.
  1. [54]
    In my view, the evidence of the messages is also admissible in proof of count 4. If the jury were left with a doubt as to whether the applicant knowingly had possession of the child exploitation material the subject of count 4, the evidence concerning count 5 would be sufficient to remove that doubt. In the context of the prosecution case, if the jury were to be satisfied from the content of the messages which suggest the applicant as their author, that he in fact wrote them, then that would remove any doubt which they may have otherwise have been left with concerning whether he was knowingly in possession of the child exploitation images found on his phone.
  1. [55]
    Furthermore, I am of the view that the evidence of possession of the child exploitation material which forms the basis for count 4, is admissible as propensity evidence in respect of count 3.
  1. [56]
    As Crennan and Kiefel JJ observed in BBH “the fact of propensity inheres in the finding of sexual interest, not each piece of evidence which supports it”.[33] 
  1. [57]
    Therefore, while the evidence concerning the possession of child exploitation material which gives rise to count 4 might not, of itself, demonstrate the applicant’s sexual interest in the count 3 complainant, it may be taken with the evidence of the messages as supporting that finding.
  1. [58]
    Each of counts 3, 4 and 5 are properly joined on the indictment.

Should separate trials be ordered as a matter of discretion? 

  1. [59]
    Having concluded that the counts are properly joined, the remaining question is whether separate trials should nevertheless be ordered in exercise of the discretion under s 597A(1) of the Code.  In my view they should not be. 
  1. [60]
    The applicant’s primary contention was that the evidence in respect of counts 4 and 5 was not admissible on count 3 because it had no probative value and was, thus, only prejudicial. For the reasons already stated, not only is the evidence probative, but highly so such that it satisfies the test in Pfennig.  Once it is accepted that the evidence is cross-admissible, there is no basis for severance.[34] 
  1. [61]
    As Crennan and Kiefel JJ observed in BBH:[35] 

“The rationale for the test in Pfennig is the concern that evidence which demonstrates an accused’s propensity might be used by a jury to reason to guilt in circumstances where the evidence is of little real probative force.  Because such evidence, of its nature, is highly prejudicial, Pfennig requires that the evidence have sufficiently strong probative force to make it just to admit the evidence despite its prejudicial effect.” 

  1. [62]
    Once it is established that it possess such strong probative force as to satisfy the test in Pfennig, there can be little, if any, room for argument that it ought be excluded or that a separate trial ought be ordered in exercise of a discretion of the court.
  1. [63]
    Although said in the context of considering discretionary exclusion under s 130 of the Evidence Act 1977 (Qld), Heydon J’s observation in BBH[36] is apt.  His Honour said: 

“It is highly questionable whether there is any room for the operation of this exclusionary discretion where the Pfennig requirement has been satisfied by the prosecution.  The strictness of that requirement leaves little room for a tender which satisfies it to fail the test for discretionary exclusion.  In Pfennig v R itself, the majority said that only if the Pfennig test was satisfied could ‘one safely conclude that the probative force of the evidence outweighs its prejudicial effect’.  Thus the functional role of the discretionary exclusion test is subsumed into the Pfennig test.” 

Disposition

  1. [64]
    The application should be refused.

Footnotes

[1] (1986) 61 ALJR 1 at 2. 

[2] [1970] 1 QB 125 at 130-131. 

[3] [1971] AC 29. 

[4] [1975] AC 421 at 459. 

[5] (1984) 152 CLR 528 by Gibbs CJ and Brennan J (as his Honour then was). 

[6] Gibbs CJ, Brennan and Dawson JJ. 

[7] [1988] 1 Qd R 159 at 164. 

[8] For example, see R v The Queen (1992) 175 CLR 599 at 601-602 per Mason CJ, at 605 per Brennan J, at 610 per Deane J and at 619 per Dawson and Gaudron JJ.

[9] (2008) 235 CLR 334 at [492]-[493]. 

[10] (2018) 359 ALR 359 at [49]-[51]. 

[11] At [49]. 

[12] At [50]-[51]. 

[13] At [103].

[14] [1995] 182 CLR 461.

[15] BBH v The Queen [2012] 245 CLR 499 at [131] per Crennan and Kiefel JJ.

[16] Pfennig at 483 and 485 per Mason CJ, Deane and Dawson JJ.

[17] At [107].

[18] At [111].

[19] At [172].

[20] Ibid at [173].

[21] Ibid at [174] – [175].

[22] [2012] 245 CLR 499 at [137].

[23] Ibid at [153].  Although their Honours also noted at [140], that a majority of the court in HML did not hold that the only basis for the admission of the evidence in question was to show sexual interest.

[24] At [155].

[25] Phillips v The Queen [2006] 225 CLR 303 at [63].

[26] [2002] 130 A Crim R 89 at [27].

[27] Ibid at [107].

[28] [2018] QCA 69.

[29] Ibid at [59]. 

[30] Apparently a reference using the plural given that the message refers to “both Crys”. 

[31] Compare HML per Hayne J at [103]-[107]. 

[32] Compare BBH at [158] per Crennan and Kiefel JJ. 

[33] BBH at [167]. 

[34] R v Bauer (2018) 359 ALR 359 at [88]. 

[35] BBH at [132]. 

[36] At [111]. 

Close

Editorial Notes

  • Published Case Name:

    The Queen v SGW

  • Shortened Case Name:

    The Queen v SGW

  • MNC:

    [2019] QDCPR 74

  • Court:

    QDCPR

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    27 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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