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R v CDA[2022] QCA 258

Reported at (2022) 13 QR 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDA [2022] QCA 258

PARTIES:

R

v

CDA

(appellant)

FILE NO/S:

CA No 85 of 2021

DC No 164 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 16 April 2021 (Coker DCJ)

DELIVERED ON:

16 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2022

JUDGES:

Mullins P, Bond JA and Henry J

ORDERS:

  1. Appeal allowed.
  2. Convictions quashed.
  3. The appellant be retried on the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was found guilty of 19 counts of sexual offending which he stood trial for against three complainant sisters when babysitting them as children – where the appellant had previously been convicted at trial of sexual offending against his stepdaughter CC – where admissibility of the evidence of offending against CC was challenged at a pre-trial hearing before the learned trial judge – where the evidence was ruled admissible by the learned trial judge – where the evidence was led to the jury at trial on the basis that in the absence of collusion it was objectively improbable that the sisters and CC would complain of such similar offending against them unless it actually occurred – where the appellant appeals against conviction on the ground that the trial judge erred by admitting into evidence propensity evidence of two witnesses (CC and her mother TJ) – whether there were sufficient similarities or other connection between the offences against CC and those against the three sisters as to make them admissible for the alleged offending against the sisters – whether the pre-trial hearing judge erred in ruling the evidence of offending against CC to be admissible

Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, followed

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, cited

McPhillamy v The Queen (2018) 92 ALJR 1045; (2018) 361 ALR 13; [2018] HCA 52, applied

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

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

R v McNeish [2019] QCA 191, distinguished

COUNSEL:

B J Power KC, with R G Logan, for the appellant

P J McCarthy KC, with A J Walklate, for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MULLINS P:  I agree with Henry J.
  2. [2]
    BOND JA:  I agree with the reasons for judgment of Henry J and with the orders proposed by his Honour.
  3. [3]
    HENRY J:  The appellant was convicted by a jury of all 19 counts on which he stood trial for sex offending against three sisters when babysitting them as children.  In appealing his conviction, he makes no complaint about the joinder of those charges.  Rather, he complains that the trial judge wrongly allowed the prosecution to adduce and rely upon evidence of his sex offending against another girl, CC.
  4. [4]
    The offending against CC was removed in time and circumstance from the charged offending.  The evidence of it involved generalised allegations with no particularity about discrete instances of offending, save for an instance of egregiously more serious offending than the offending charged.  Scrutiny of the evidence of offending against CC reveals it did not actually have the particularly distinctive features which the prosecution asserted it shared with the charged offending.
  5. [5]
    The result is that the highly prejudicial evidence of offending against CC did not have the strong degree of probative force necessary to permit it to be adduced.  The appeal must therefore be allowed and a retrial ordered.

Grounds

  1. [6]
    The appellant’s amended ground of appeal is:

“The learned trial judge erred in ruling that evidence of uncharged offending alleged to have been committed against a person who was not a complainant in the trial was admissible evidence on the appellant’s trial; and his Honour erred in directing the jury that this was evidence upon which the jury could rely to find the charged offences proved on the basis that it was capable of showing the improbability of similar lies by the complainants in the charges on the indictment and by the complainant in the uncharged offences.”[1]

  1. [7]
    While this reads as two grounds, namely the wrongful reception of the evidence and an erroneous direction regarding it, its focus as argued was the allegedly wrongful reception of the evidence.  The erroneous direction was in effect said to reflect no more than that it referred to the same inadequate justification relied upon for permitting the evidence to be received at trial.

The reception of the evidence

  1. [8]
    The appellant had been convicted at an earlier trial of three offences against CC, namely:
  1. maintaining a relationship with a child (between 30 April 2003 and 13 December 2008);
  2. rape (on or about 16 July 2008);
  3. rape (on a date unknown between 31 October 2008 and 13 December 2008).

He was sentenced to 14½ years imprisonment.  The jury in the present matter was of course unaware of these facts but they explain why the present controversy did not arise in the context of a joinder dispute.

  1. [9]
    The admissibility of the evidence of offending against CC was challenged at a pre-trial hearing before the learned trial judge.  So was the joinder in the indictment pertaining to the three sisters of charges related to another complainant, NA.
  2. [10]
    Upon hearing argument the learned trial judge ruled against the joinder of NA’s charges but in favour of the reception into evidence of the offending against CC.  His Honour’s subsequently published reasons for ruling that the evidence was admissible did not analyse and identify what special probative features the evidence of the offending against CC held relative to the charged offending, save for observing, of the argument the prosecution had advanced:

“To be frank, much of what is argued in relation to that matter is, in my view, unable to be challenged by the applicant.”[2]

  1. [11]
    This appeared to have been an acceptance of the force of the prosecution’s argument as to similarities in the alleged offending against the three sisters as compared to the offending against CC.  Unfortunately, it was not realised that the force of the similarities identified was illusory and that some of them lacked evidentiary support.  The similarities relied upon will be returned to later in these reasons.
  2. [12]
    At trial the evidence relating to CC was left to the jury on the basis that the similarities in the accounts of the sisters and CC were such as to make it objectively improbable the accounts of the sisters and CC would have such similar qualities unless the offending occurred.[3]
  3. [13]
    To explain why the evidence did not have that quality and did not carry the strong degree of probative force required by the authorities, it is first necessary to review the nature of the alleged offending against the three sisters and against CC and analyse the extent of any connection between them.

The alleged offending against the three sisters

  1. [14]
    Firstly, as to the sisters, they were EM, HM and AM.  At the time of the alleged offending EM was aged between 9 and 13, HM was aged between 7 and 12 and AM was aged 7.
  2. [15]
    The sisters lived with their mother and their mother’s partner in a country town during the period of offending.  The mother’s partner was friends with the appellant.  He often worked out of town.  The mother worked at businesses in town.  When she worked nightshifts the appellant would babysit the three sisters at his house.
  3. [16]
    The appellant was charged with two counts of maintaining a sexual relationship and 17 counts of indecent treatment of a child under 12, under care.  The maintaining offences were alleged to have occurred between January 1997 and January 1999 against EM and HM.  The indecent dealing offences were alleged to have occurred within the same date span against EM (four counts), HM (six counts) and AM (seven counts).  All charges had the aggravating allegation the complainants were under 12 and under the care of the appellant.
  4. [17]
    HM provided a formal statement to police on 21 September 2014, EM on 12 July 2015 and AM on 21 April 2016.

EM’s allegations

  1. [18]
    The earliest instance of abuse EM could recall was when the appellant would put on pornographic movies in front of the sisters when they were all in the loungeroom of his home.[4]  EM advised this had happened between one to ten times.  The appellant would ask one of the sisters to sit on him or next to him and asked one of them to touch his penis while he watched the pornographic film.  EM had a recollection of her being asked and doing so.  She also recalled an instance when AM sat on his lap but he had not pulled out his penis.[5]  When AM was on his lap the appellant was moving her back and forwards.
  2. [19]
    EM described an occasion where the appellant took out his penis and put her hand on it and moved her hand on his penis.[6]  EM gave evidence that the appellant told the sisters that they could not tell anybody because nobody would believe them.
  3. [20]
    EM described an instance where the appellant woke up EM during the middle of the night.[7]  The appellant came down the hall to the bedroom.  EM was sleeping on the double bed with AM and HM in the appellant’s room, when she heard the appellant coming she closed her eyes and pretended to sleep.  The appellant nudged EM and asked her to move to the swag on the floor which she did.  The appellant took off EM’s pants and put himself between her legs and rubbed his penis between her thighs.  The appellant’s penis slipped and went towards her vagina and on her account “he made a little quip about not wanting to take that from me”.  The appellant ejaculated on EM’s stomach and then took her to have a shower where he washed off EM.  This form of simulated copulation had occurred more than once but less than 50 times on EM’s recollection.
  4. [21]
    EM also described once where she was asleep in the swag on the floor and the appellant climbed in behind EM, put his hand in her pants and inserted a finger into her vagina.[8]  EM pretended to be asleep during this time.  The appellant made a remark the next day to EM that he put his finger in to the first or second knuckle.
  5. [22]
    EM gave evidence of another occasion where she was on the swag and the appellant removed EM’s pyjamas and performed oral sex on her.[9]
  6. [23]
    EM gave evidence that the appellant started to tickle her in front of several other adults.  EM said “Don’t tickle me.  I’m going to pee myself.”[10]  The appellant continued to tickle EM until she wet herself.

HM’s allegations

  1. [24]
    HM described an instance where she was not able to sleep.  The appellant took HM out into the loungeroom on the couch and put a pornographic film on.  The appellant sat HM on his lap, grabbed her hand and put it on his penis instructing her to “rub it” or “squeeze it”.[11]  The appellant took HM to the bedroom on the swag, told HM to lay down on the bed and take off her nightie and underpants.  The appellant told HM to hold her legs together.  He put his penis between her thighs, simulating copulation, and ejaculated on HM’s stomach.  HM gave evidence that there were about 10-15 instances when the appellant simulated copulation on her.
  2. [25]
    HM also gave evidence of a time where HM and AM were asleep in the double bed and HM wet the bed.[12]  HM woke up and placed a towel down and went to change her underwear and tried to clean herself up.  The appellant put HM into the swag with him and got HM to take off her underwear.  The appellant pulled out his penis and said, “Put your mouth around this”.  HM said the appellant’s penis entered her mouth but this stopped because HM protested.  The appellant then proceeded to put his penis between HM’s thighs and simulate copulation.
  3. [26]
    HM recalled an instance where AM was on the bed with her.  The appellant told AM and HM to take off their underwear and he rubbed his penis between both of their thighs in turn.[13]
  4. [27]
    HM gave evidence of an instance when the appellant instructed HM and AM to go into the room of one of his housemates and bring back pornographic magazines.[14]  The appellant read out and showed the magazines to HM and AM, identifying sexual parts, commenting upon them.
  5. [28]
    AM gave evidence of an event on EM’s 11th birthday party.[15]  AM saw HM run upstairs and the appellant followed her.  AM followed them up and saw the appellant push HM onto the bed and simulate copulation on her.

AM’s allegations

  1. [29]
    AM gave evidence that when the appellant lifted her off a horse his hands would linger, holding her on the buttocks and around the chest area.[16]  She also described an instance when she was around seven or eight, the appellant was play fighting with her and pinned her down with his knees and was on top of her, tickling her.  The appellant said, “I’m going to tickle you until you pee yourself”.[17]  AM said she could feel his erect penis against her body.  AM asked the appellant to get off her which he did.
  2. [30]
    AM described being asleep in the appellant’s bed and being woken up by the appellant tickling her foot at the end of the bed.[18]  The appellant said it looked crowded in the bed and told her to join him on the mattress on the floor, which AM did.  The appellant put his hands down AM’s pants and rubbed his hands on AM’s vagina.  He took off AM’s pants and put his tongue and his mouth on AM’s vagina.  While the appellant was doing this he was masturbating himself.  The appellant then put AM on her back, opened her legs and rubbed his penis on AM’s vagina until he ejaculated on her stomach and vagina area.  AM wanted to return to the bed with her sisters but the appellant said no and held her down, telling her to be quiet.  The appellant told AM that he didn’t want to put his penis inside her because he did not want to tear her.  The appellant told AM to take off her shirt and wipe up the ejaculate which she did.  The appellant then let AM return to the bed.
  3. [31]
    AM recalled at a point after this the three sisters were in the loungeroom and the appellant put on a pornographic film.[19]  The appellant was sitting on the recliner, he grabbed AM and placed her on his lap.  The appellant put his hand down AM’s pants and used his hands to touch AM’s vagina.
  4. [32]
    AM gave evidence of a time when she and HM were in the shower naked and the appellant was watching them and was masturbating.[20]

The offending against CC

  1. [33]
    CC was born in mid-1996.  In late 1999 her mother, TJ, moved with her to the same country town where the offending against the sisters is alleged to have earlier occurred.  TJ soon embarked upon a relationship with the appellant, moving with CC into the same residence as him.  A son was born to TJ and the appellant in 2002.  TJ, the appellant, CC and the son lived together as a family until December 2008 when TJ and the appellant separated.  In the meantime, the appellant had been CC’s stepfather and she called him “Dad”.
  2. [34]
    CC’s evidence before the jury of the appellant’s sexual misconduct towards her consisted of three recordings of police interviews with her on 5 February 2009, 31 March 2009 and 6 August 2009,[21] as well as a typewritten statement of 2 May 2014 composed and forwarded by her to police.  The sentence and her pre-recorded evidence involved merely introductory evidence-in-chief, confined to her confirmation that she had told the police the truth, and her cross-examination.  Her mother TJ also gave evidence.
  3. [35]
    An important feature of CC’s evidence, telling against its utility as potential similar fact evidence, was its lack of specific description of individual instances of sexual offending against her.  The singular exception was her description of the appellant’s penile rape of CC in the early hours of her 12th birthday.
  4. [36]
    The first police interview with CC, of 5 February 2009,[22] described a violent stepfather who used to hit her and throw her about, particularly in the context of when the appellant had been drinking alcohol and would fight with TJ.  When asked to give a specific example of an occasion when she had been hit or thrown, she said she had been picked up by her hair and thrown into the wall in the early hours of her 12th birthday.  Her description of that event involved her gradually but reluctantly providing details of the sexual offending which accompanied it.
  5. [37]
    Of that event CC described the appellant coming in and waking her up at about 2 am and dragging her into the parental bedroom.  She spoke of him telling her what was going to happen and that her mother did not want it to happen, but that the appellant was going to hit her mother if it did not happen.  She explained that he was asking her “to do stuff that I didn’t want to do”, and when she said no, he slammed her against the wall.  When later asked exactly what he did do, she said he had raped her, putting his penis in her vagina.  She explained he had taken her clothes off and held her down by the arms.  To overcome her screaming he told her to be quiet or otherwise he was going to punch her.
  6. [38]
    Earlier in the interview, before finally divulging the detail of the rape, she said she had been about 10 when her father started doing “things” to her that she did not want to talk about.  She explained there had been lots of times when her father had made her “do stuff” that she did not want to do and when questioned about where he had been touching her, she identified her breasts, vagina and “bum”.  When asked what he had touched her with in those places, she responded “his penis…his hands”.
  7. [39]
    After divulging the detail of the rape on her 12th birthday, she was asked if there were any other incidents that she could remember and responded that there were five more recent incidents when he had put his penis in her vagina, but said, “They were exactly the same as what I’ve already told you”.
  8. [40]
    In the second police interview, of 31 March 2009,[23] CC repeated and elaborated upon past instances of non-sexual violence towards her by the appellant.  Upon further questioning about the detail of the rape on her 12th birthday she described the appellant holding her down on the bed by her hands and knees, explaining he ripped her underpants and boxers off but thought her shirt remained on.  She described a lot of movement during which his penis would come out and he would shove it back into her, and that this continued for an hour or two.  She was uncertain whether he had ejaculated.
  9. [41]
    No additional detail of any other sexual offending against her was elicited, save for the fact that the final of the rapes of her occurred about a week before her mother separated from him and they left the residence (which was 1 December 2008).
  10. [42]
    The third substantive interview, of 16 August 2012,[24] involved a repeated description of the rape on her 12th birthday.  Of that occasion she recalled the appellant spoke about taking her virginity because that had not occurred in the past and he was telling her how she was going to bleed.  She recalled her mother was saying “I’m sorry” yet saying yes to everything he was saying.  She explained she knew what was going to happen because “it happened previously for the past 6 years…but not as much as it started to happen it was less when I was younger and then it became more as I started getting older”.  When asked if she could remember another time when he had been violent she responded, “I can just remember touching”.  She then went on to describe an occasion when they stayed in a holiday park and he was swimming with her.  She explained he was trying to touch her but could not recall where he was touching her.
  11. [43]
    The written statement by CC, of 2 May 2014,[25] provided a further detailed account of the occasion when she was raped on her birthday.  It described her mother and the appellant arguing in the prelude to it and her mother saying things to her like, “It won’t take long … it will all be over soon”.  She described the appellant smacking her mother with a broom handle a few times and pushing her around, as well as grabbing a handful of CC’s hair, shaking her, picking her up by the hair and hitting her in the face and body, saying such things continued “for a few hours”.  Of the eventual rape she said:

“[W]e ended up in their room, he told me to take my pants off, I did … Mother and [the appellant] asked me to sit on the bed with them and have a talk, the conversation topic was virginity, he said he had to do ‘take it’ and that it would hurt more if I waited until I got older, he made my mother agree, this continued for a while until he’d had enough of trying to convince me to cooperate.  He said something along the line of ‘we’re going to do it now’.  I got extremely scared and tried to leave again, he picked me up by the throght (sic) and put me against the wall screaming at me then through me into the clothes rack.  I stayed there until he told me to get up.  I don’t remember much until I’m on the bed my mother was holding my legs apart and he was on top of me but I wasn’t face down.  He tried for at least an hour pushing his way in, I got up several times to go to the ‘toilet’ to get away which is where I saw that I was bleeding.  After a little more time he gave up and sent me to my room.”

  1. [44]
    Her statement provided some additional but general information about other sexual misconduct against her.  In referring to the house her family was living in at the time of the rape on her birthday, she stated:

“This is the house that most of the abuse occurred at and the most I can remember.  In all of the other houses he just really used me for his urges but at this house he became very strange, it was like he thought he was in a relationship with me.  Places in this house the abuse took place; Dining room table, couch, shed, laundry, my bed, their bed, office table.  Often most of the incidence would happen in their bedroom, on one occasion he forced oral stimulation on the couch.  It also happened in the shed when Mother was home. … [The appellant] would often come into the shower while I was showering and either touch me inappropriately or make sexual gestures towards me.”

  1. [45]
    The only other reference to earlier sexual activity was in the middle of referring to the houses the family earlier lived in.  Between referring to living at [DR] Road and the next address she inserted this single sentence:

“[The appellant] penetrating my anus with his penis, was fairly routine at the house in [DR] Road when Mother left the house.”

  1. [46]
    Earlier in the statement she wrote that when she spoke of the appellant doing “the usual” to her “the usual means – penetrating my anus with his penis”.  It will be recalled she had previously told police that her “bum” had been one of the places the appellant had previously touched her and that he had in the past touched her with his penis and his hands.
  2. [47]
    CC’s mother TJ gave evidence that she first learned the appellant had engaged in sexual misconduct against her daughter in early 2008.  She testified:

“He said that he was seeing somebody else and I asked him who it was.  He – he told me that it was [CC], my daughter. … I was in shock.  He continued to tell me that it had started when we lived at [DR] Road.  … He said that he had penetrated her anally – anally and that it had continued from there.  … He had said that it didn’t happen very often when it first started but it had become more regular.”[26]

  1. [48]
    She described him getting angry, telling her to call the police and then changing his mind.  She left the premises and went to a friend’s house where the police were called.  The police, who evidently were not told of his admission to offending against her daughter, safeguarded her collection of some clothes for herself and the children who she left with to stay elsewhere overnight.  She returned and resumed cohabitation the following day.
  2. [49]
    Of the occasion of the rape of CC, she said the appellant had asked her to bring CC into the bedroom and when she did the appellant asked CC to lie on the bed.  On her account, he asked her to perform oral sex on CC and she then mimicked doing so without actually doing so.  On her account, he then penetrated CC anally and subsequently tried to force his penis into her vagina.  She described him trying many times to do so and that she was trying to hold CC still at his direction to keep her legs apart.  She said that at some stage of that evening the appellant had said that he wanted to take CC’s virginity.  She recalled CC at one point going to the bathroom and saying that she was bleeding.

Analysis of any connection

  1. [50]
    Having reviewed the nature of the offending against the sisters and CC, it is timely to next analyse what, if any, connection, such as similarity, underlying unity or distinctiveness, those sets of offending shared.
  2. [51]
    To remove doubt, the focus of the analysis is not upon the connection between the offending against each respective sister.  That was not in issue.  There was clearly an underlying unity in that offending, it being sex offending upon three sisters whom the appellant was babysitting.  Further, there were various similarities in the conduct, most obviously the perpetration of simulated copulation upon each of them.
  3. [52]
    Turning to such connection as appears to be shared in the offending against the sisters as compared to the offending against CC, the exercise immediately encounters the marked contrast in the state of detail provided in respect of the offending against the sisters, as compared to the offending against CC.  The sisters described an array of instances of sex offending against them in some detail.  CC, on the other hand, only gave a detailed description of one instance of sex offending against her, namely the rape of her on her 12th birthday.
  4. [53]
    CC did provide generalised evidence of the repetition of such rape conduct occurring thereafter, just as she provided generalised assertions that the appellant had regularly had anal sex of her, had used his penis and his hands to touch her breasts, vagina and “bum” and had oral sex of her.
  5. [54]
    Significantly, CC did not allege she was ever the subject of simulated copulation, perhaps the most obvious hallmark of the appellant’s offending upon the three sisters.  In a similar vein, none of the sisters alleged that the appellant had ever sodomised or raped them, as CC alleged the appellant had repeatedly done to her.
  6. [55]
    The offending upon the sisters and the offending upon CC at least shared in common some non-penetrative sexual touching.  However, the lack of detail in CC’s account about individual instances of such touching means there is no evidence of any particularly striking similarity in the manner of the appellant’s non-penetrative sexual touching of the sisters as compared to his non-penetrative sexual touching of CC.
  7. [56]
    The sisters and CC, of course, shared in common the fact that they were female children and the context of the offending shared in common that the appellant had a position of care in respect of them, albeit in very different contexts.
  8. [57]
    It appears then that such obvious connection, similarity, underlying unity or distinctiveness that could be said to be shared between the offending upon the sisters and the offending upon CC was that it involved sex offending upon female children who were in the appellant’s care.  That analysis heralds what a poor vehicle CC’s evidence was for admissibility pursuant to the legal principles in this field.

Relevant principles

  1. [58]
    It will be recalled the trial judge identified the probative force of the evidence of offending against CC as being the objective improbability that the accounts of the sisters and CC would have such similar qualities unless the offending occurred.  This reference to “objective improbability” echoes part of the articulation of the relevant common law principles in Pfennig v The Queen,[27] to be applied by trial judges in deciding whether evidence of what is sometimes referred to as similar fact or propensity evidence is admissible.  The plurality in Pfennig cited this passage in R v Hoch:[28]

“Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.”[29]

  1. [59]
    The plurality in Pfennig went on to explain:

[E]vidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation, in the sense discussed.

Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.”[30]

  1. [60]
    These oft quoted passages demonstrate that in considering the objective improbability of some event having occurred other than as asserted by the prosecution it will not be enough, as it is under iterations of uniform evidence legislation in some other Australian jurisdictions, that the coincidence or combination of circumstances relied upon merely has “significant probative value”.[31]  Rather, it must involve features of such a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion there is no reasonable view of them consistent with the innocence of the accused.
  2. [61]
    The rationale underlying the common law’s high threshold for admissibility, as was explained in Phillips v The Queen,[32] is to ensure the evidence has such a strong degree of probative force as to make it just to admit the evidence despite it being prejudicial to the accused.  The high threshold is not an impossible standard, for, as was explained in Phillips, the assessment of the probative force of the evidence under consideration is not of its probative force in isolation but in conjunction with the whole of the evidence.[33]  However, it is a more demanding threshold than the uniform evidence threshold of mere significant probative value.[34]
  3. [62]
    That distinction warrants a note of caution.  As was explained by the majority in R v McNeish,[35] reference to High Court cases relating to the uniform evidence regime, such as Hughes v The Queen[36] and R v Bauer,[37] can provide some guidance “in illuminating the applicable logic” when identifying how evidence in this field may have probative value.  However, it is imperative that in assessing the strength of the probative value of such evidence, trial judges are cautious to ensure the evidence has such strong probative value as to meet the common law’s high threshold for admissibility.

Consideration

  1. [63]
    In ruling in favour of admitting the evidence of the offending against CC the learned trial judge’s reasons appeared to adopt the force of the prosecution’s argument as to similarities in the alleged offending against the three sisters as compared to the offending against CC.  Of that argument, his Honour said:

“What is also argued is that it is apparent that the applicant’s sexual interest, particularly in young children, remains, and that it was certainly close in time to the offending involving the … sisters, and that it was offending which was conducted when he was an adult.  The similarities which are, of course, factors to be taken into consideration, particularly when the various matters detailed in R v McNeish are considered, were outlined and included the following:

a) The complainants are all female;

b) The complainants are all underage;

c) The complainants, at least when first offended against, were pre-pubescent;

d) The children were in the applicant’s own home or the home in which he resided at the time;

e) The applicant acted in a brazen manner;

f) The applicant imposed himself on the children sexually;

g) The offending involved the distinctive feature of not wishing to take the virginity of a pre-pubescent child;

h) The offending involved the distinctive feature of the defendant waking the children during sleep to engage in sexual acts; and

i) The offending occurred by the defendant taking advantage of the children being regularly placed in a position where they were within the defendant’s reach.”[38]

  1. [64]
    This case illustrates the need for trial judges to analyse whether features of the above kind are properly supported by the facts, for, as will soon be demonstrated, some of the alleged features were not so supported.  The case also illustrates the need for trial judges to be wary of the potentially illusory force of a prosecutor’s long list of features of alleged similarity.
  2. [65]
    Features a), b) and c) reflect that the case involves alleged offending against female children and features e), f) and i) are sadly very common components of sex offending against children.  Of course, that does not mean those features are collectively without some potential probative value for, as the majority explained in Hughes v The Queen,[39] an inclination to engage in such conduct and to act upon that inclination is “unusual as a matter of ordinary human experience”.  In Hughes the majority concluded proof of such an interest and a tendency to engage in it may be capable of “significant probative value”.[40]  But “significant probative value” is the uniform evidence threshold, which, as the majority explained in Hughes, is not informed by the more demanding requirements of the common law threshold that is applicable here.[41]  In the absence of some more compelling degree of similarity, distinctiveness, underlying unity or connection, the aforementioned six features do not carry the special degree of probative force required by the common law test.
  3. [66]
    Dealing with the remaining three features in reverse order, feature h), the allegedly distinctive feature of waking the children to engage in sexual acts, is not supported by the evidence as it relates to CC.  On her account the only time the appellant woke her to engage in sexual acts was the occasion of the rape on her 12th birthday.  That there was a single instance of such an occurrence is not a “distinctive” feature.
  4. [67]
    Feature g), the allegedly distinctive feature of not wishing to take the virginity of a pre-pubescent girl was pressed as a feature of particular importance in argument by the respondent before this court.  However, that sex offending against female children may not extend to penile penetration is not of itself remarkable.  Further, on proper analysis the evidence does not support this feature as being distinctive.
  5. [68]
    The alleged feature’s reference to “pre-pubescent” suggests there was some landmark point prior to which the appellant did not want to penetrate his victim with his penis.  The range of ages within which the onset of female puberty typically commences was not explored in the evidence and there was no specific evidence from CC or any of the three sisters as to when the onset of their puberty commenced.  On CC’s own account the appellant first had penile vaginal intercourse of her on her 12th birthday.  There was no evidence from CC or her mother specifically suggesting the appellant identified some relevant significance in CC turning exactly 12.  The high point was that “it would hurt more” if CC waited until she was older.  Let it be assumed then, for the sake of argument, that in this context feature g) is advanced as the appellant not wishing to take the virginity of girls under 12.
  6. [69]
    This encounters the immediate difficulty it cannot sensibly be tested by reference to the sisters, for the appellant is not alleged to have had the opportunity to offend sexually against any of them after they turned 12.
  7. [70]
    The respondent submitted the appellant’s penile vaginal penetration of CC was “the exception which proved the rule”.  It was not per se exceptional, for on CC’s account the rape on her birthday was the first of six times that the appellant had penile vaginal intercourse with her.  The respondent’s argument thus requires there to be something exceptional about the fact he had not committed this offence earlier and that it in some way has some strong degree of similarity, distinctiveness, underlying unity or connection in common with the offending against the three sisters.
  8. [71]
    The need for that exceptional quality also arises because it would be illogical to conclude solely from the mere absence of one particular form of offending that an offender is therefore more likely guilty of some other form of offending.
  9. [72]
    The evidence shows that the appellant had earlier been regularly penetrating CC’s anus with his penis.  This could support the view that the appellant was willing to penetrate CC anally but not vaginally with his penis before she was 12, whereas he thereafter chose to also penetrate her vagina with his penis.  Yet there was no evidence that there had been any like pattern of anal rather than vaginal penile penetration of the three sisters, indeed none of them complained of any kind of penetration of their anus.
  10. [73]
    The respondent relied upon a pattern of sexual conduct by the appellant towards the sisters as suggestive of a desire not to take their virginity.  That pattern involved simulating copulation by moving his penis between their legs without penetrating them.  That might have been a powerful hallmark in aid of the cross-admissibility of the sisters’ evidence but it has no connection with the evidence of offending against CC.  That is because her evidence did not describe such activity being perpetrated upon her.
  11. [74]
    The respondent highlighted that on one occasion when simulating sex with EM in the above mentioned way the appellant’s penis slipped and went towards her vagina and he “made a little quip about not wanting to take that from me”.  However, CC gave no evidence of any comments about not wanting to take her virginity being made to her.
  12. [75]
    CC’s only evidence of any comment by the appellant related to this topic was him saying on her 12th birthday that “it would hurt more” if she waited until she was older.  This arguably has echoes of AM’s recollection that the appellant said he did not want to put his penis inside her because he did not want to tear her.  Those two isolated comments do share a theme of concern about the pain of penile vaginal penetration but that is the extent of the similarity or connection.  Further, such comments are not replicated in the evidence of what was said to the other two sisters or for that matter in any repetition of such comments to CC and AM.
  13. [76]
    When these various difficulties are considered collectively it is apparent that feature g), at first blush so appealing in its articulation, lacked evidentiary support as a supposedly distinctive, unifying feature of the case.
  14. [77]
    It remains to consider feature d), that the children were in the appellant’s place of residence when he offended against them.  This feature of the case is at least supported by the evidence but it is not a striking similarity, particularly when it is borne in mind that CC was living permanently at the appellant’s residence.
  15. [78]
    A superficially more powerful feature, not materially ventilated in the appeal, lies in the explanation for why the offending occurred at the appellant’s residence, namely that the sisters and CC were each under a form of care by the appellant.  However, that feature lacks a strong degree of probative force given the contextual distinctions between the offending and its connection to the forms of care.
  16. [79]
    The importance of such contextual distinctions is illustrated by the High Court’s reasoning in McPhillamy v The Queen,[42] albeit that was a case concerned with the lesser admissibility threshold of uniform evidence legislation.  In that case tendency evidence was given by two witnesses of two other instances of offending.  The Crown sought to use the evidence to demonstrate a tendency for the appellant to act on his sexual interest in male children in their early teenage years who were under his supervision.[43]  The two witnesses gave evidence of incidents from 10 years before the offending in question.  The offending was distinguished from that in Hughes and the appeal allowed.  When considering the aspect of the children being under the supervision of the appellant, the majority held:

“The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over “A”, an altar boy, when the two were at the Cathedral for services in 1995–1996. The evidence does not suggest that “A” was vulnerable in the way that “B” and “C” were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with “A”’s account that the appellant followed him into a public toilet and molested him.”[44]

  1. [80]
    The contextual differences between the circumstances of the alleged offending were thus identified, along with the gap in time, as undermining the purported force of the alleged link that the alleged victims were children over whom the appellant had some supervisory control.
  2. [81]
    In the present case the appellant was babysitter to the sisters whereas he was living permanently in CC’s home as her stepfather.  He knew CC from when she was very young and offended against her over a period from the ages of six to 12.  His offending against her was more prolonged and became more serious than that against the sisters.  The circumstances under which his role as her stepfather facilitated his offending were contextually very different to those involved when he offended against the sisters when babysitting them.
  1. [82]
    Considered in that light this feature, like features such as the brazenness of the offending or the risk of exposure, may carry some weight in heightening the collective probative force of the evidence but not so compellingly as to meet the exacting threshold of the common law test of admissibility.
  2. [83]
    Some other features of alleged distinctiveness, beyond those listed in the trial judge’s reasons, were relied upon by the time the prosecution case was put to the jury below.
  3. [84]
    One such additional feature was said to be that there was engagement of more than one participant in sexual behaviour.  This feature seems to have been seized upon because the sisters were often present when there was offending against one of them.  However, while the appellant would sometimes offend against them in turn there does not appear to have been any pursuit of a plan to make one participate in the offending against the other.  An even greater flaw in the reliance upon this feature is that there was only one occasion alleged by CC when another person participated, namely the occasion of the rape on CC’s birthday when the appellant enlisted the physical assistance of her mother.  There was certainly no similarity in that participatory context as compared to the context of presence relied upon in respect of the sisters.  More determinatively it occurred on only one occasion, which was the occasion when the appellant first revealed to TJ what had long been occurring in secret.  In the absence of evidence of the alleged feature having occurred with at least some degree of pattern vis-à-vis CC, the feature is of no or inconsequential probative force.
  4. [85]
    Another feature which the prosecution below highlighted as contributing towards a nexus in the offending was the appellant did not talk to the complainants during the offending.  This is not borne out by the facts either.  On CC’s account of the only offending instance of which she provided specific detail, the rape on her birthday, it is clear the appellant did a great deal of talking.  Further, CC gave evidence in reference to other occasions that, “[H]e’d ask me to say disgusting things always using the word “Daddy””.[45]  Such facts tell determinatively against the existence of the alleged feature.  Further, if it matters, the appellant told HM to “rub it” or “squeeze it” (in reference to the appellant’s penis),[46] and EM said she could not recall one way or another if the appellant spoke during the offending.[47]
  5. [86]
    A final additional feature emphasised in argument by the respondent was the appellant imposing himself sexually without a period of grooming.  Again, this feature is not supported by the evidence.  True it is the evidence was not extensive on the topic, but that does not mean there was no grooming.  CC’s evidence was so lacking in detail as to the earlier offending that no reliable inference is available either way on the topic of grooming of her.  Moreover, evidence from the sisters such as a lingering touch when lifting AM off a horse, tickling and showing pornography provided some evidence of grooming of them.

Conclusion

  1. [87]
    On analysis it is apparent this was not a case in which the offending against CC had such similar qualities to the offending alleged against the three sisters as to make it objectively improbable that there was no explanation for those qualities other than that the offending occurred as alleged.
  2. [88]
    Such connection as existed as between the offending against CC and the offending against the three sisters did not lay in similarities so striking as to be beyond coincidence and make it objectively improbable events occurred other than as alleged.  Rather, if it existed at all, it lay in a propensity to sexually offend against female children in circumstances of control and risk of exposure.  They are circumstances which are sadly common to this class of offending.  In this case they are not of such a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion there is no reasonable view of them consistent with the innocence of the accused.
  3. [89]
    This stands in marked contrast to the compelling probative force of the evidence of each sister in proof of the case as it related to the sisters.  That evidence involved such underlying unity as to unquestionably meet the common law admissibility threshold, for reasons explained by the majority in the factually similar case of R v McNeish.[48]  Indeed, it was such an apparently strong case that the evidence of the offending against CC could not have been thought essential to its potential success.
  4. [90]
    Nonetheless, it cannot be said (and in this event the respondent did not argue) there has been no substantial miscarriage of justice.  The wrongful reception of such prejudicial evidence, for the purpose of supporting a conclusion of guilt, made the trial so overwhelmingly more adverse to the appellant’s prospects, than the trial to which the appellant was entitled by law, as to have deprived him of a chance which was fairly open to him of being acquitted.[49]
  5. [91]
    The inevitable result is that the convictions must be quashed and a re-trial ordered.

Orders

  1. [92]
    The orders should be:
  1. Appeal allowed.
  2. Convictions quashed.
  3. The appellant be retried on the indictment.

Footnotes

[1]  Outline of submissions on behalf of the appellant, pp 1-2.

[2]  AR Vol 2 p 122 [44].

[3]  AR Vol 1 p 30 L 41, p 47 L 34, pp 68-69.

[4]  AR Vol 2 pp 190-191.

[5]  AR Vol 2 p 191.

[6]  AR Vol 2 p 191.

[7]  AR Vol 2 pp 188-190.

[8]  AR Vol 2 p 191.

[9]  AR Vol 2 p 192.

[10]  AR Vol 2 p 194.

[11]  AR Vol 2 p 230.

[12]  AR Vol 2 p 231.

[13]  AR Vol 2 p 232.

[14]  AR Vol 2 p 227.

[15]  AR Vol 2 pp 308-309.

[16]  AR Vol 2 p 304.

[17]  AR Vol 2 p 304.

[18]  AR Vol 2 p 305.

[19]  AR Vol 2 p 306.

[20]  AR Vol 2 p 307.

[21]  There was also a recording of an interview on 20 April 2009 at a point when she withdrew her complaint.

[22]  AR Vol 3 pp 939-974.

[23]  AR Vol 3 pp 975-1002.

[24]  AR Vol 3 pp 1029-1048.

[25]  AR Vol 3 pp 929-931.

[26]  AR Vol 2 p 362.

[27]  (1995) 182 CLR 461.

[28]  (1988) 165 CLR 292.

[29] R v Hoch (1988) 165 CLR 292, 294-295; cited in R v Pfennig (1995) 182 CLR 461, 482.

[30]  (1995) 182 CLR 461, 483-484.

[31]  See for example Evidence Act 1995 (NSW) applied in Hughes v The Queen (2017) 263 CLR 338 and Evidence Act 2008 (Vic) applied in R v Bauer (2018) 266 CLR 56.

[32]  (2006) 225 CLR 303, 320-321 [54].

[33] Phillips v The Queen (2006) 225 CLR 303, 323-324 [63]; R v McNeish [2019] QCA 191 [62]-[66].

[34] R v Bauer (2018) 266 CLR 56, 84 [52].

[35]  [2019] QCA 191 [42].

[36]  (2017) 263 CLR 338.

[37]  (2018) 266 CLR 56.

[38]  AR Vol 2 pp 121-122.

[39]  (2017) 263 CLR 338, 361 [57].

[40]  (2017) 263 CLR 338, 344 [2]; Cf McPhillamy v The Queen (2018) 361 ALR 13.

[41]  (2017) 263 CLR 338, 354 [34].

[42]  (2018) 92 ALJR 1045; (2018) 361 ALR 13.

[43] McPhillamy v The Queen (2018) 361 ALR 13, 19 [27].

[44] McPhillamy v The Queen (2018) 361 ALR 13, 19 [31].

[45]  AR Vol 3 p 931.

[46]  AR Vol 2 p 230 LL19-20.

[47]  AR Vol 2 p 190 LL6-7.

[48]  [2019] QCA 191; see also R v Davidson [2019] QCA 120 and R v Spreadborough [2020] QCA 291.

[49] Wilde v The Queen (1998) 164 CLR 365.

Close

Editorial Notes

  • Published Case Name:

    R v CDA

  • Shortened Case Name:

    R v CDA

  • Reported Citation:

    (2022) 13 QR 62

  • MNC:

    [2022] QCA 258

  • Court:

    QCA

  • Judge(s):

    Mullins P, Bond JA, Henry J

  • Date:

    16 Dec 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC164/21 (No citation)16 Apr 2021Coker DCJ and jury
Notice of Appeal FiledFile Number: CA85/2104 May 2021-
Appeal Determined (QCA)[2022] QCA 25816 Dec 2022-

Appeal Status

Appeal Determined (QCA)

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