R v O[1999] QCA 180

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 20 of 1999

Brisbane

[R v O]

THE QUEEN

v

O

Appellant

McMurdo P

Davies JA

Chesterman J

Judgment delivered 25 May 1999

Judgment of the Court

APPEAL ALLOWED.  CONVICTIONS QUASHED.  NEW TRIAL ORDERED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25 May 1999

1. The appellant was convicted in the District Court on 16 December 1998 on four counts of indecent dealing with his son G and one of having anal intercourse with him, all in 1982 when G was 11.  He appeals against those convictions.  His grounds of appeal, by the time this appeal was heard, had been reduced to two.  They were:

"1.His Honour erred in allowing the evidence of C alleging unrelated misconduct towards her to be led on the basis of some form of 'similar fact' evidence, and particularly after having ruled that those allegations could not be joined as counts in the same indictment.

...

3. His Honour erred in his directions to the jury as to the use to be made of the allegations made by C and the standard of proof to be applied to them."

It is plain that if the appellant succeeds on ground 1 it will be unnecessary to deal with ground 3.

2. The appellant was originally indicted on 11 counts, the five already referred to together with six against his daughter C.  Upon the appellant's application made at a hearing for directions or rulings as to the conduct of the trial the learned trial judge ordered separate trials in respect of the counts against C and those against G.  However in the same hearing the learned trial judge ruled that evidence relevant to the alleged offences against C was admissible in the trial of the counts against G on the basis that it was propensity evidence.  It was his Honour's ruling in this respect which was the subject of the first ground of appeal.  In order to understand that ruling and the argument before this Court it is necessary to say something further about the evidence involving the alleged offences against G and those against C.

3. According to G the offences against him occurred when, after his parents had separated and he was living with his mother at Caloundra, he went to live for a time with his father at Wurtulla Village.  According to his mother he went to live with his father for weeks or months some time between the end of March and the beginning of July 1982.  G was then 11, having been born [in] 1971.  The offences alleged against him occurred on one day during this period.  They began when the appellant asked G to "come and give me a cuddle" while the appellant was lying nude on the bed and G had on only a pair of shorts.  The appellant rubbed him over various parts of his body including putting his hands inside G's shorts onto his penis and his bottom.  He then asked G to suck his penis, offering him money to do so, saying that there was money on the duchess.  G complied with his father's request.  While G was doing this the appellant started squeezing G's bottom and then, after saying "It's not going to hurt" he inserted his finger in G's anus.  This lasted for some minutes.  After that he said to G that if G really wanted the money he was going to stick his penis in G's bottom.  He then removed G's shorts and inserted his penis in G's bottom.  That hurt causing G to cry.  He said he screamed and he yelled for his mother.  G asked him to stop.  He did not do so immediately but desisted shortly afterwards.  He told G that if he told anyone he would get a flogging of his life.  G stayed with his father for a short time after that.  His father did not ever pay him any money.

4. The offences against C were alleged to have occurred over a period of many years.  She was born [in] 1968 and so was more than two and a half years older than G.  She said that the first offence against her occurred when she was five or six years of age, that is in 1973 or 1974.  They continued until she was about 13 but ceased either at the end of 1981 or in early 1982 more than six months before the offences against G.  C said that, on the first occasion when she was about five or six, the appellant called her into the bedroom.  He had no pants on.  He put her hand around his penis and put his hand around hers and proceeded to move it up and down saying to her "This is how I like it" and "You do it now".  After a short while he asked her to put her mouth around it and he put his hand on the back of her head and moved her head backwards and forwards.  That continued for a long while.  After that he asked her to lie on the bed whereupon he inserted his tongue in her vagina.  After doing that for a long while, he moved up the bed, started kissing her and put his penis into her vagina.  After some time he ejaculated.  The insertion of his penis in her vagina, she said caused her pain.  She went to the toilet afterwards and there was bleeding and other wetness around.  He gave her a five dollar note.

5. There were numerous other times, according to C, over the ensuing six or seven years where the events were virtually identical, mostly occurring either late at night or if her mother was not at home.  Sometimes she protested but when she did, the appellant forced himself on her.  Always the appellant gave her money afterwards.  This pattern continued until she was about 13 years of age.  On each occasion he had intercourse with her it was nearly always preceded by oral sex upon her and digital penetration of her vagina.

6. In ruling C's evidence admissible his Honour rightly said that there was no doubt that it had a very substantial potential prejudicial effect.  However, he said, it was clear from the judgments of the High Court in Pfennig v R (1995) 182 CLR 461 "that no matter how substantial the prejudicial effect of similar fact evidence if it has probative value going beyond simply showing a propensity to commit the type of offence charged, it is admissible".  He went on to say that C's evidence, if believed, had significant probative value going beyond simply showing that the accused has or had a propensity to commit the type of offences charged.  His Honour continued:

"Firstly, there are sufficient similarities between the way in which C describes being introduced to sexual intercourse by her father to those described by G.  Obviously, there is bound to be differences by reason of the fact that they are of a different gender.  There is the similarity of the use of an offer of money to attempt to secure the co-operation of the child in the child's introduction to sexual intercourse.  In each case, the accused was naked or semi-naked at the time of calling the child into his bedroom.

In any event, as I have said, without wasting time going into full detail, it seems to me that there are similarities between the initial methods involved.  If the evidence of C is accepted, it means that the accused was able to secure her co-operation in regular acts of intercourse with her, even if it was somewhat reluctant.  If her evidence is believed, for a number of years, he had the physical use of her.  If it is believed that sometime between the end of 1980 and early 1982 C ceased to reside with the accused and G commenced to reside with him alone, it seems to me a jury could take the view that having been deprived of the availability of C, or for that matter anyone else, the accused having been in the habit of abusing one of his young children for his own sexual gratification might eventually decide to use another, he being the only one available to him or readily available to him at that time.

Put simply, it seems to me that if the jury were to accept the evidence of C, it would be entitled to form the view that those events made it more probable than not that G is telling the truth when he describes what happened to him.  I therefore propose to admit the evidence, as I have said with some reluctance."

7. The decision in Pfennig has been recently applied by this Court in R v O'Keefe (CA No 332 of 1998, 5 March 1999, unreported).  In that case it was said by Thomas JA, with whom the other members of the Court agreed that, to be admissible, propensity evidence must be "of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged".  His Honour referred, in that respect, to Pfennig at 481 - 482.  The question here then is whether C's evidence is of such calibre that there is no reasonable view of it other than as supporting an inference that the appellant was guilty of the offences against G.

8. The learned trial judge, in the above passage, referred to two similarities between the offences alleged against C and those the subject of the charges before him.  The first was the use of an offer of money to attempt to secure the co-operation of the child in the child's introduction to sexual intercourse.  And the second was that the accused was naked or semi-naked at the time of calling the child into his bedroom.  The first of these is not factually accurate.  In the case of G it is true, the appellant offered him money in order to secure his agreement.  But then he failed to pay him.  In the case of C no offer was made before the first occasion on which intercourse occurred but the appellant gave her money afterwards and that pattern continued.  In the case of G a threat was used to ensure his silence whilst in the case of C there was no threat but money was paid.  As to the second of the matters referred to by his Honour the fact that the accused was naked or semi-naked is quite unremarkable when, as was plain in each case, he intended to, or was already in the course of stimulating himself sexually.

9. On the whole there is no close similarity between the two sets of offences.  Those against C consisted of periodical sexual intercourse over an extended period preceded by acts of oral sex and digital penetration by the appellant.  The offences against G were of a homosexual kind apparently all taking place on the one day.  It is, perhaps, unnecessary to add that, in any event, C's evidence was disputed and that there was a substantial time gap between the two sets of offences.  In our view it was not open for his Honour to conclude that C's evidence was of such calibre that there was no reasonable view of it other than as supporting an inference that the appellant committed the offences against G.  In those circumstances it is unnecessary to refer to any specific respects in which his Honour misdirected himself as to the application of Pfennig to the facts of the case.  And, for the reason mentioned earlier, it is unnecessary to deal with ground 3.  This appeal must succeed and a new trial should be granted.

10. We would therefore allow the appeal, quash the convictions and order that there be a new trial.