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R v CBM[2014] QCA 212

Reported at [2015] 1 Qd R 165

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 424 of 2012

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

DELIVERED ON:

29 August 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

20 June 2014

JUDGES:

Gotterson JA and North and Henry JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Appeal against convictions allowed.

2.Convictions set aside.

3.Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND COINCIDENCE – DIRECTIONS TO JURY – where sexual offences relating to two separate complainants were joined and tried upon the one indictment – where the trial judge did not direct the jury that they could use the evidence of offending against one complainant in support of proof of the charges relating to the other complainant or vice versa – where there was no direction telling the jury they could not use the evidence in that way – whether the trial judge should have directed the jury against propensity reasoning

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where sexual offences relating to two separate complainants were joined and tried upon the one indictment – where the trial judge omitted to direct the jury that it could not use similar fact evidence of offending against one complainant to reason towards a finding of guilt of offending against the other complainant – where the trial judge omitted to warn the jury of the dangers of propensity reasoning – whether the appellant suffered a miscarriage of justice by reason of the failure to so direct and warn

De Jesus v The Queen (1986) 61 ALJR 1 (1986) 68 ALR 1; [1986] HCA 65, considered

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, considered

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, applied

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 C [2013] QDC 191, cited

R v HAB [2006] QCA 80, applied

R v Kay [2006] QCA 302, cited

R v Pretorius [2010] 1 Qd R 67; [2009] QCA 58, distinguished

Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, considered

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered

COUNSEL:

J Greggery for the appellant/applicant

M R Byrne QC, with J Robson, for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

[1] GOTTERSON JA:  I agree with the orders proposed by Henry J and with the reasons given by his Honour.

[2] NORTH J:  I have read the reasons of Henry J and agree with them and the orders his Honour proposes.

[3] HENRY J:  The appellant was charged on indictment in the District Court with 11 sex offences against two of his female child cousins.  After a five day trial and over a day’s deliberation by the jury he was convicted on seven counts and acquitted on four counts.  He was sentenced to seven years imprisonment with a parole eligibility date at the halfway point of that term.[1]

[4] The appellant appeals his conviction on the following grounds:

“1.The learned trial Judge erred in failing to direct the jury that the evidence of each complainant was inadmissible in the proof of the counts in respect of the other complainant;

  1. The learned trial Judge erred in failing to warn the jury against the dangers of propensity reasoning.”[2]

He also seeks leave to appeal his sentence on the ground it is manifestly excessive.

The issue

[5] The grounds of appeal against conviction correctly allege the nominated directions were not given.  The mischief the grounds are concerned with arises from the failure to counter the inherent prejudice in hearing charges relating to separate complainants at the same trial when their evidence is not cross-admissible.  In this trial the learned trial judge concluded the jury should not be directed they could use the evidence of offending against one complainant to reason towards a finding of guilt of offending against the other complainant and vice versa.  The risk was the jury would naturally tend to use the evidence in that way unless specifically directed against doing so.

Background

[6] The complainants and the appellant were cousins.  The offences were allegedly committed whilst the appellant lived, during separate periods, with each complainant’s family.

First complainant: AV

[7] The appellant lived a few streets away from AV’s family in Townsville in June 2008 and at that time began visiting and staying over on weekends.  The appellant then moved in with AV’s family around July or August 2008 until November or December 2008.[3]  In that period the appellant was aged 17, while AV was 10 to 11 years of age.[4]

[8] The particulars of the appellant’s alleged offending in respect of AV on unknown dates between 31 March 2008 and 31 March 2009, and the eventual verdicts, were:

Count 1 – Rape

Early in the morning before the accused went to work, the accused entered the complainant’s bedroom and put his penis in the complainant’s vagina.

Verdict:  Not guilty

Count 2 – Indecent treatment of a child, under 12

Early in the morning before the accused went to work, the accused entered the complainant’s bedroom and put his penis in the complainant’s vagina.

Verdict:  Guilty

Count 3 – Rape

Later in the same evening as count 2, the accused returned to the complainant’s bedroom and put his penis in the complainant’s vagina.

Verdict:  Not guilty

Count 4 – Rape

On the couch in the lounge room, the accused put his penis in the complainant’s vagina.

Verdict:  Not guilty

Count 5 – Rape

On the couch in the lounge room, the accused put his fingers in the complainant’s vagina.

Verdict:  Guilty

[9] The alleged events which attracted counts 1, 2 and 3 were described in AV’s recorded interview with police on 20 October 2011.[5]  In that interview AV said there had been other incidents in which the appellant had sex with her or tried to have sex with her but she could not remember them.[6]  Ten months after AV’s first police interview the police conducted a further interview with AV in which she recounted the further two incidents which attracted counts 4 and 5.  She described no act of ejaculation in respect of any incident.

[10] AV said her younger sister and brother, aged six to seven, were in another room of the house when the conduct alleged in count 5 occurred,[7] but that they were in the same room watching television when the conducted alleged in count 4 occurred.[8]  However, she explained the appellant shielded him and her with a blanket during the conduct alleged in count 4.[9]

[11] In the course of the pre-recorded cross-examination of AV it emerged her diary contained an entry dated 18 March 2010 saying:

“I have something to tell which is super mega top secret.  Yeah I have had sex that is only because [the appellant] made me stay still and I could not move and I could not speak because a) my throat hurt b) [the appellant] had put my dirty socks in my mouth.  I am sorry that I didn’t tell you.  [The appellant] said that if I tell then he would burn the [house] down.”[10]

[12] She did not mention that probably memorable episode or the accompanying threat to police or any other trial witness.  The diary also contained a note of how easy AV had found it to lie to her teacher at school, explaining, “all you need to do is put on a [serious] face.”[11]

Second complainant: SC

[13] The appellant lived with SC’s family from March or April 2009 until about January 2010,[12] when the appellant was 17 to 18 years of age and SC was nine to 10 years of age.

[14] The particulars alleged by the prosecution of the appellant’s offending upon SC on unknown dates ranging between 31 March 2009 and 1 June 2010, and the eventual verdicts, were:

Count 6 – Maintaining sexual relationship

Particulars of counts seven and eight.

Verdict:  Guilty

Count 7 – Rape

The incident described as “the last time” and “the internal time”.  Late one evening before Christmas 2009, the accused entered the room in which the complainant was sleeping and “internally” raped her by penetrating her vagina with his penis.

Verdict:  Guilty

Count 8 – Rape

The incident described as the “air con night”.  This incident occurred in the complainant’s room on a night that “everyone” was sleeping in her room because of the air conditioning in that room.  The complainant was on a mattress on the floor when the accused put his hands down her pants and penetrated her vagina with his finger.

Verdict:  Guilty

Count 9 Indecent dealing, under 12

The complainant was playing tiggy with [her siblings] CB and EL when the accused “stuck his dick in (her) arse” on the outside of her clothing.

Verdict:  Guilty

Count 10 – Indecent dealing, under 12

The complainant had gone to bed in CB and EL’s bedroom when the accused entered the room and licked her vagina.

Verdict:  Guilty

Count 11 – Rape

The complainant had gone to bed in CB and EL’s bedroom one evening when the accused woke the complainant up and “shoved his dick” in her mouth.

Verdict:  Not guilty

[15] On SC’s account, her two year old brother was sleeping in the same bedroom where the conduct giving rise to count 7 occurred[13] and all five of her brothers were sleeping there when the conduct giving rise to count 8 occurred.[14]

[16] The charge of maintaining, count 6, was founded solely upon the conduct alleged in counts 7 and 8 because they were the only alleged offences for which there was sufficient temporal evidence to place their occurrence after the appellant’s 18th birthday, that is, after he became an adult.  SC described those offences in a recorded interview with police on 13 October 2011.[15]  She asserted in that interview the appellant had sexually abused her “lots” but could not specifically remember any other occasions.[16]

[17] As with AV, 10 months later SC was further interviewed by police and then recounted the further specific episodes that gave rise to the remaining three counts on which the appellant faced trial.  SC described no act of ejaculation in respect of any incident.

Disclosures

[18] Each complainant indicated in their police interviews that they had earlier told each other of what the appellant had done.  The sequence of their discussion, that is, which of them told the other first, and when that occurred was not identified with any precision by either complainant in their police interviews.[17]

[19] AV informed the police she had informed her school friend, KD, about what happened.  In KD’s recorded interview with police she recalled that in 2008 or 2009 AV had told her she had been raped and not to tell anyone.[18]  KD also told police that in 2010 when she, AV and a few other school children were talking about that “kind of stuff” AV “came out and said she was raped by her cousin”.[19]  In cross-examination at the pre-recording of her evidence KD agreed the first time AV had mentioned being raped might have been in the conversation with the group of school children.[20]

[20] SC disclosed to her cousin CC in 2009 that the appellant had sex with her[21] but CC, who gave evidence at trial, told SC she did not believe her.[22]  On SC’s account she told four other children, one of whom is AV’s sister, but no evidence was adduced at trial from any of those persons.[23]

[21] SC’s mother, Ms C, first became aware of an allegation against the appellant on 9 October 2011.  The family had just returned home from a weekend away when SC said, “Something bad happened with [the appellant], like, on top of me, and I’m not a virgin [anymore].”[24]

[22] After that, on 16 October 2011, Ms C approached her sister, Ms W, who is AV’s mother, and advised her to talk with AV.  Ms W then questioned AV, who stated the appellant “made her have sex and other things ... at least 10 times.”[25]

Medical evidence

[23] A doctor performed a genital examination of AV on 2 November 2011 and found no scarring or irregularity to the hymen or other abnormalities.[26]  The genital examination of SC detected a notch in the hymen which could possibly have been caused by penetration with a blunt object[27] however the doctor also opined it did not support or contradict an allegation of sexual abuse.[28]

Appellant’s account

[24] The appellant did not give evidence at trial.  No evidence was led of any interview of the appellant by police.

Pre-trial application

[25] A single indictment was presented against the appellant on 18 September 2012 alleging offences against both complainants.

[26] On 10 May 2013 the appellant made a pre-trial application for his trial on charges relating to one complainant to be heard separately from his trial on charges relating to the other complainant.He complained of the prejudice occasioned by the joinder of the charges relating to two separate complainants in the one indictment.

[27] The learned application judge (who was not the eventual trial judge) refused the application on 20 August 2013.

[28] His Honour’s reasons highlighted the following factual matters advanced by the prosecution as evidencing an underlying unity between the offending described by each complaint:

“•The complainants are cousins of each other and cousins of the defendant.

The complainants were of similar ages: AV – 10 to 11 years and SC 9 to 11 years.

At the time of offending, the defendant was living in the home of each complainant.

The periods of offending were connected in time.  The defendant moved out of AV’s home in December 2008 and into SC’s home in early May 2009.

In relation to each complainant, sexual conduct was of a wide-ranging nature – oral sex, digital penetration and penile penetration.

In relation to each complainant, on occasions other children were in the relevant room or nearby when sexual activity occurred:  AV – counts 4 and 5, SC – counts 8, 9, 10 and 11.”[29]

[29] His Honour elaborated upon the last mentioned feature of similarity,[30] noting:

“At the very least, in respect of each set of offences, the applicant was not dissuaded from sexual activity notwithstanding the presence, or near presence, of other children, including children of an age who may appreciate the nature of the activity, or, at least, consider the conduct odd, and therefore speak to adults about it.”[31]

[30] In refusing the application his Honour concluded:

“In my view, the activity and circumstances described by the complainants possess underlying unity and reveal a pattern of activity that permits of no reasonable explanation other than the inculpation of the applicant in the offences concerning each complainant.”

[31] The pre-recording of the complainants’ evidence did not occur until after the refusal of the separate trial application.  No further application for separate trials was made.

The trial judge’s refusal of the prosecution’s request for a similar fact direction

[32] At the conclusion of evidence in the trial and before addresses the trial prosecutor sought a “similar fact evidence direction” submitting the effect of the pre-trial ruling was the evidence of each complainant was “cross-admissible on a similar fact basis … going both ways between the two.”[32]  While the direction being sought by the prosecutor was not fully articulated, it was obvious she was referring to a direction that the jury could use the evidence of offending against one complainant to support the proof of charges relating to the other complainant and vice versa.[33]  The defence counsel and learned trial judge clearly understood that was the permissive direction being sought.

[33] Defence counsel resisted such a direction, submitting the effect of cross-examination had been to move the cases relating to each complainant so far apart that the issue of similar fact did not properly arise.[34]  That submission was of dubious force.  Cross-examination had impacted more potentially upon the reliability of the complainant’s accounts than the characteristics of similarity between them.  Defence counsel further submitted there was a distinction between a determination of joinder and a determination the jury should be told it could use the evidence of one complainant as similar fact evidence in the case relating to the other complainant and vice versa.[35]  That submission found favour with the learned trial judge.[36]

[34] His Honour declined to give the permissive direction sought by the prosecution, saying:

“I came in to court this morning with some doubts about whether similar facts, that is, the cross-admissibility of the evidence is one [direction] which ought to be given in this case as distinct from it having … made the joinder justified and I’m not persuaded to change my mind about that. … I will not direct the jury with respect to similar fact per se, even though of course it justified the joinder in the first instance.”[37]

[35] That dealt with what the jury should not be told.  Unfortunately neither counsel prompted the learned trial judge to consider what the jury should be told in light of his Honour’s decision.

Directions given and not given

[36] True to his ruling the learned trial judge did not direct the jury that they could use the evidence of offending against one complainant in support of proof of the charges relating to the other complainant or vice versa.  That much is uncontroversial.  The difficulty is there was no direction telling the jury they could not use the evidence in that way.

Discussion

[37] The long established principle in respect of cases involving alleged sex offences, affirmed by the High Court in Sutton v The Queen[38] and De Jesus v The Queen,[39] is that because such cases are peculiarly likely to give rise to prejudice, against which a direction to the jury is unlikely to guard, if an accused is charged with multiple sexual offences the charges should not be tried together if the evidence on one count is not admissible on another count.[40]

[38] In Queensland the joinder of more than one charge in the one indictment against the same person is permissible pursuant to s 567 of the Criminal Code 1899 (Qld) if, inter alia, “those charges are founded on … a series of offences of the same or similar character.”  The charges in the present matter were prima facie joinable on that basis.  However, s 597A(1) of the Code allows the court to order a separate trial of different counts in an indictment where before or during the trial the court forms the opinion the accused person may be prejudiced in his/her defence by reason of being charged with more than one offence in the same indictment.

[39] Where applications for separate trials arise in sex cases in which charges relating to separate complainants have been joined in the one indictment the complaint of the prejudice occasioned by such joinder is often met by the argument that the evidence of the complainants is cross-admissible as so-called similar fact evidence.

[40] In Pfennig v The Queen[41] the High Court explained similar fact evidence is a variety of propensity evidence, a special class of circumstantial evidence which is vulnerable to prejudicial misuse and must therefore have a high level or degree of cogency to justify its admission.  On a separate trial application the judge must assess whether the evidence has that high degree of probative force.  That is because the prejudice otherwise occasioned by the joinder would ordinarily result in separate trials being ordered.

[41] In multiple complainant cases the focus of that assessment is not on the probative force of one complainant’s evidence as it relates to proof of the charges relating to that complainant, for the assessment assumes that complainant’s evidence to be true.[42]  Rather, the assessment considers that complainant’s evidence in the context of the prosecution case, assuming that case may be accepted by the jury.[43]  The assessment focuses on whether the complainant’s evidence has a high degree of probative force in aiding to prove charges relating to another complainant or complainants.

[42] In Phillips v The Queen[44] the High Court emphasised that in order to assess the probative force of the evidence it is essential at the outset to identify the issues on the trial for which the evidence is to be tendered.  Put another way, it is essential to identify the circumstantial reasoning by which the evidence of offending against one complainant is said to have probative force in aiding to prove offending against the other complainant.

[43] Where that reasoning is merely that the accused has a propensity or disposition to commit a sex offence the evidence will not be admissible for want of cogency.[45]  However reasoning which points to a “particular distinctive propensity” in connexion with or in relation to the issues in the case will give the evidence greater cogency.[46]

[44] Such reasoning relies upon the evidence of other offending as circumstantial evidence of the alleged offending under consideration.[47]  The degree of similarity or connexion of features is said by inference to so heighten the objective improbability of the alleged offending occurring other than as alleged that there is no reasonable view of the evidence consistent with the innocence of the accused.[48]  If the judge considers there is a reasonable view of that evidence, consistent with the innocence of the accused in respect of the charges under consideration, then it will not have the high degree of probative force required to be cross-admissible in proof of those charges and separate trials should be ordered.[49]

[45] In the present case the manifestations or exemplifications of a particular distinctive propensity identified by the learned application judge derived not merely from the commission of generally similar sex offending against children of a similar age and sex.  They also derived from the circumstances that the children were the appellant’s own cousins and that he offended against them in generally close temporal succession, when living in their respective homes, when other persons were present in their homes.  In the absence of collusion[50] it is objectively improbable that AV would complain of such similar and temporally proximate circumstances of offending against her by the appellant as his offending against SC unless the offending against AV actually occurred.  Identical circumstantial reasoning applies in using AV’s evidence of the appellant’s offending against her in proof of the offending as against SC.

[46] The learned application judge was entitled to conclude as he did that there was no reasonable view of the evidence of each complainant which was consistent with the appellant’s innocence in respect of the charges relating to the other complainant.  It was, on any view, a finding that the similar fact evidence of each complainant was cross-admissible and could be used by the jury as supporting proof of the charges relating to the other.

[47] It is not suggested that the application judge erred in his decision on the materials before him.  However, such a decision is premised on an evidentiary picture which may change.  It remains for the trial judge to regulate the trial and direct the jury by reference to the evidence as it turns out to be and not as it was understood to be at the time of a pre-trial application. It is implicit in the learned trial judge’s decision not to give the direction sought by the prosecution that he did not regard the evidence of each complainant to be cross-admissible.  That is, he did not consider each complainant’s evidence, in the context of the prosecution case, to have the high degree of probative force necessary for its use in proving charges relating to the other complainant.

[48] The trial judge’s decision meant it was open to the defence to seek the discharge of the jury and an order for separate trials in respect of each complainant by reason of the prejudice occasioned by the joinder.  No such application was made.  That decision is explicable for forensic reasons:  the defence case had fared tolerably well and elicited some evidence which may not have come out in separate trials.  However, the defence’s choice to press on did not disentitle the appellant to the protection of directions to the jury to counter the potential for prejudicial misuse of the evidence.

[49] A jury will naturally understand that it can have regard to evidence led before it when considering whether the charges have been proved beyond a reasonable doubt.  Deciding to not direct a jury against using evidence for a certain purpose will not guard against the jury thinking it can use the evidence for that purpose.  That is particularly so where the potential purpose seems obvious.  In a case like the present the prospect of the jury using the evidence to engage in propensity reasoning was readily apparent.  It would only have been natural for the lay minds of the jury to think that if the appellant sexually offended against one of his female child cousins while staying at her home then that made it more likely he was the sort of person who would have done likewise to another of his female child cousins while staying at her home.

[50] There is no room for a neutral or silent position to be taken in directions about the cross-admissibility of the evidence of multiple complainants in sex cases.  Because of the potential for misuse of such evidence, directions should ordinarily be given to guard against its misuse, whether it is left to the jury as cross-admissible or not.[51]  Even if the learned trial judge had allowed the evidence of the complainants to go to the jury as cross-admissible it would still have been necessary to direct the jury about its proper potential use, including an explanation of the need to consider and exclude competing circumstantial inferences such as collusion.

[51] The learned trial judge’s decision not to tell the jury it could use the evidence of offending against one complainant in support of proof of offending against the other complainant did nothing to prevent the jury putting it to that use.  If the jury were not to be permitted to use it for that purpose, as the learned trial judge determined, then it was essential the jury be specifically directed that they could not use it for that purpose.[52]  Such a direction needed to be sufficiently clear and forceful as to deter the jury’s natural inclination to so use the evidence.  To guard against the prejudice occasioned by the joinder such a direction should in this case have incorporated a warning not to engage in impermissible propensity reasoning.[53]

[52] No such directions were given.  The appellant has made good his complaints of error.

Consequence

[53] The respondent accepted that the omitted directions would ordinarily be given but sought to preserve the conviction on a number of bases.

Other directions sufficient

[54] Firstly, it was submitted the omission did not result in an unfair trial because the directions actually given were by implication sufficient to guard against any mischief.

[55] The learned trial judge did tell the jury it had to consider each charge separately and that because the evidence in relation to the separate offences was different its verdicts need not be the same.[54]  However a direction of that kind is not adequate to, by implication, counter the risk of the jury naturally thinking it could have regard to the evidence of offending against one complainant to bolster the force of the evidence of charges relating to the other complainant.  None of the other directions given were, by implication, adequate to counter that risk either.  To the contrary, a number of directions, innocuous in their own right, were susceptible to an understanding in the mind of a lay juror that the evidence of offending against one complainant could, if believed, be used to bolster the charges that relate to the other complainant.

[56] For example, in directing the jury of the consequences of the jury having a reasonable doubt as to one count the learned trial judge told the jury that must be taken into account in considering the evidence of the complainants generally.[55]  Also, in directing the jury about the use it could make of evidence of uncharged acts, his Honour’s direction explained that if persuaded of them it might think it more likely the defendant did what was alleged in the charges.[56]  While not intended as allowing the jury to blend consideration of the evidence relating to one complainant’s set of charges with the other, these directions were susceptible to being understood in that way in the absence of the omitted directions.

[57] A similar problem lurked within the learned trial judge’s otherwise innocuous warning of the consequences for the fairness of the trial of the delay in the allegations coming before the court, a so-called Longman direction.[57]  By emphasising of the danger of convicting upon either of the complainant’s testimony “alone” the direction was susceptible to being understood as allowing the jury to have regard to the complainants’ testimony “together” in order to convict.  Thus the absence of a specific direction against the cross-admissible use of the complainants’ evidence actually posed a risk of undermining the force of the Longman direction.

Deliberate forensic tactic

[58] Secondly, the respondent emphasised defence counsel at trial did not seek a mistrial or seek the omitted direction.  It was submitted this reflected informed and deliberate decision-making based on rational forensic tactics, so that no miscarriage of justice can be said to have resulted from those choices.[58]

[59] The decision not to seek separate trials at the end of the prosecution case was, as already discussed, forensically explicable.  However, for reasons discussed above, that did not disentitle the appellant to the omitted directions.

[60] The respondent submits a rational explanation for the defence not seeking the directions is that they may only have served to highlight and thus tempt the jury into propensity reasoning and the use of each complainant’s evidence in support of the charges pertaining to the other.  However, these were not obscure concepts unlikely to be thought of by a lay mind without prompting.  To the contrary, as already explained, such reasoning and use of the evidence would have arisen as obvious and natural in the lay minds of the jury.  It is for that reason the directions against such reasoning and use were so important.

[61] It is inconceivable that there was a rational forensic choice made not to seek the omitted directions.

Mixed verdicts

[62] Thirdly, the respondent highlights that the jury acquitted on three counts relating to AV and one count relating to SC.  It was submitted this shows no miscarriage of justice has occurred because it is not reasonably possible that the failure to give the omitted directions affected the verdicts.[59]  It is contended that the mixed verdicts show the jury must not have engaged in propensity reasoning or misused the evidence of offending against one complainant to support the proof of charges relating to the other.

[63] The argument is flawed in that it makes the hypothetical assumption all verdicts would have been guilty had the jury engaged in such impermissible reasoning or misuse.  It is equally hypothetically possible that all of the verdicts were not acquittals because the jury engaged in such impermissible reasoning or misuse.  It is reasonably possible, notwithstanding the jury had a reasonable doubt on some counts, that in concluding it had no such doubt on other counts the jury did so in each instance by taking into account the evidence of offending against a complainant to which the count did not relate.

Proviso does not apply

[64] Each of the respondent’s arguments that there has been no substantial miscarriage of justice must fail.  It was not submitted that it was appropriate, given the nature of this case, for this court to undertake its own assessment of the record in order to reach its own determination of whether the appellant’s guilt was proved beyond a reasonable doubt.

Conclusion

[65] It follows the appeal must succeed, the convictions be set aside and a re-trial ordered.

[66] For that reason it is unnecessary to determine the application for leave to appeal sentence.

[67] It will be for the Director of Public Prosecutions to determine whether the prosecution of the appellant should continue in all the circumstances.  If the prosecution does continue, the issue of whether the trial should proceed as one or separate trials remains a matter for the consideration of the parties and the District Court.

[68] I would order:

1.Appeal against convictions allowed.

2.Convictions set aside.

3.Re-trial ordered.

Footnotes

[1] AB 356 LL25-38.

[2] Amended Notice of Appeal 13/06/2014.

[3] AB 167 L45 – AB 168 LL1-22.

[4] AB 374; AB 167 L19; AB 372.

[5] Affidavit of Megan Heywood, Ex A.

[6] Ibid P28 LL1483-1495.

[7] Affidavit of Megan Heywood Ex B P15 L18.

[8] Affidavit of Megan Heywood Ex B P9 L2.

[9] Ibid P7 L12.

[10] AB 371 Ex 6; AB 54 L24 – AB 56 L15.

[11] AB 370 Ex 6.

[12] AB 187 LL39-40.

[13] Affidavit of Megan Heywood Ex D P10 L436, P18 L800.

[14] Ibid P24 L1077, P28 L1270.

[15] Affidavit of Megan Heywood, Ex D.

[16] Ibid P2 L63, P3 L94, P39 L791.

[17] Affidavit of Megan Heywood Ex A PP29-31, Ex E, Ex F P23 L58.

[18] Ibid Ex G P3 L52.

[19] Ibid P5 L38.

[20] AB 80 L16.

[21] AB 76 LL16-19; AB 159 LL4-5; AB 160 LL1-5.

[22] AB 159 L9.

[23] Affidavit of Megan Heywood, Ex D P40 L1849-P42 L1921.

[24] AB 191 LL1-5.

[25] AB 173 LL8-9, 20.

[26] AB 196 L21 – AB 197 L19.

[27] AB 140 L23, AB 141 L37.

[28] AB 147 L18.

[29] R v C [2013] QDC 191, [9].

[30] Citing R v Kay [2006] QCA 302.

[31] R v C [2013] QDC 191, [10].

[32] AB 229 L13.

[33] See Benchbook 50.3, 50.4.

[34] AB 229 L30.

[35] AB 247 L212.

[36] AB 247 L33.

[37] AB 247 L23.

[38] (1984) 152 CLR 528.

[39] (1986) 68 ALR 1.

[40] De Jesus v The Queen (1986) 68 ALR 1, 4-5.

[41] (1995) 182 CLR 461, 464, 481-484.

[42] Phillips v The Queen (2006) 225 CLR 303, 323.

[43] Ibid 323.

[44] Ibid 303, 311.

[45] Pfennig v The Queen (1995) 182 CLR 461, 480, 481, 483.

[46] Ibid 483.

[47] Ibid 482, 483.

[48] Ibid 484.

[49] Ibid 485, Phillips v The Queen (2006) 225 CLR 303, 324.

[50] Section 132A Evidence Act 1977 (Qld) requires the possibility of collusion to be disregarded in determining the admissibility of similar fact evidence.

[51] R v HAB [2006] QCA 80, [12]-[14].

[52] Ibid [13].

[53] Ibid; but see R v Pretorius [2013] 1 Qd R 67.

[54] AB 279 LL28-37.

[55] AB 279 L42 - AB 280 L3.

[56] AB 283 L44 - AB 284 L10.

[57] Longman v The Queen (1989) 168 CLR 79.

[58] TKWJ v The Queen (2002) 212 CLR 124.

[59] Dhanhoa v The Queen (2003) 217 CLR 1, 13, 15.

Close

Editorial Notes

  • Published Case Name:

    R v CBM

  • Shortened Case Name:

    R v CBM

  • Reported Citation:

    [2015] 1 Qd R 165

  • MNC:

    [2014] QCA 212

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, North J, Henry J

  • Date:

    29 Aug 2014

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC424/12 (No citation)01 Dec 2013After a five day trial the defendant was convicted of seven sex offences. He was sentenced to seven years imprisonment with a parole eligibility date at the halfway point of that term
Primary Judgment[2015] QDC 10906 May 2015Orders in respect of further prerecording of evidence of children for the retrial of CBM: Durward SC DCJ.
Appeal Determined (QCA)[2014] QCA 212 [2015] 1 Qd R 16529 Aug 2014Appeal against conviction allowed. Convictions set aside. Re-trial ordered: Gotterson JA and North and Henry JJ.

Appeal Status

Appeal Determined (QCA)

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