The Queen v Coram
[2004] QDC 234
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The Queen v Coram[2004] QDC 234
The Queen v Coram[2004] QDC 234
DISTRICT COURT | Indictment No DC9 of 2004 |
CRIMINAL JURISDICTION
JUDGE BRITTON SC
THE QUEEN
v.
ROBERT GRAHAM CORAM
ROCKHAMPTON
..DATE 21/05/2004
JUDGMENT
HIS HONOUR: This is the matter of Coram. I will read my reasons into the record.
The defendant is charged on one indictment with two counts of sexual assault. There are two separate complainants, D and S, and the offences are alleged to have been committed on two separate dates approximately 21 months apart.
This is an application by the defence brought before the trial pursuant to section 597A of the Criminal Code for an order that there be separate trials in respect of the two counts.
Section 567(2) of the Criminal Code provides:
“Charges for more than one indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”
Section 597A under which the application is brought provides:
“(1)Where before a trial or at any time during a trial the Court is of opinion that the accused person may be prejudiced or embarrassed in the person's defence by reason of the person's being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more than one offence charged in an indictment the Court may order a separate trial of any count or counts in the indictment.”
In De Jesus v. Queen (1986) 68 ALR 1, the High Court held that in sexual cases different counts of sexual misconduct ought generally not be joined under one indictment where the evidence in respect of each count was not admissible on all of the other.
Here the Crown submits that the evidence of each of the two complainants is properly admissible in respect of each count and that is the basis upon which the two counts have been joined in the one indictment.
There is no issue in this case as to the identity of the defendant who was, at the material times, a masseur. The main issue would appear to be whether or not the defendant did the acts alleged against him although it would appear that accident or mistake might also be raised as these matters were adverted to by counsel for the defendant in the course of argument.
In Pfennig v. Queen (1995) 182 CLR 461, the High Court held that propensity evidence is not admissible if it shows only that the accused has propensity or a disposition to commit a crime and that the basis for the admission of propensity or similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.
The Court held that the strength of its probative force may lie in the fact that the evidence reveals striking similarities, unusual features, underlying unity, system or pattern such that it raises as a matter of commonsense and experience the objective improbability of some event having occurred other than as alleged by the prosecution, though none of those characteristics is an essential prerequisite in every case.
In the Queen v. O'Keefe (2000) 1 QR 564, Thomas J A, (with whom both Pincus J A and Davies J A were in substantial agreement) said, after reviewing a number of cases (at paragraph 21):
“In consequence it seems to me that the only sensible resolution of these passages requires the trial judge to address two questions:
- (a)Is the propensity evidence of such a calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged...; and
- (b)If the propensity evidence is admitted is the evidence as a whole reasonably capable of excluding all innocent hypothesis.
This would have to be answered on the assumption of the accuracy and truth of the evidence to be led. If the Judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent then the accused should not be exposed to the possible risk of mis-trial by a jury that might give undue prejudicial weight to propensity evidence. The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury.”
In the Queen v. St John (unreported CA 136/2001 16 November 2001) Thomas JA said:
“I conclude that in the present state of authority there is a strong leaning in favour of severance of sexual offences involving complainants unless the principal evidence of each complainant is admissible in the cases involving the other complainants. There is, however, no absolute rule. The ultimate touch-stone must be the prejudicial effect of evidence which would not otherwise be admissible in the trial of a particular accused and the capacity of the Court to counter such prejudice.”
In the present case the Crown submits that a comparison of the evidence of the two complainants reveals the following similarities:
- (a)Both complainants were mature women (27 and 38 years of age);
- (b)Both complainants came to know the accused in his professional capacity as a masseur, that is his relationship with each complainant was identical;
- (c)Each offence was committed during a massage conducted by the accused;
- (d)The sexual assault alleged in each case involved:
- (i)a massage while the complainant lay face down followed by a request to each complainant to turn over and lie on their back thus exposing their breasts;
- (ii)the accused, not offering either complainant a towel to cover her breasts although one was available in each case;
- (iii)the accused, running his fingers lightly over the stomach and breasts of each complainant before twisting and rubbing their nipples between his fingers.
- (e)In no case did he preface any of the intimate touching with an explanation of what he was proposing to do nor did he seek permission or consent at any stage prior to touching the complainants breasts.
I should, for the record, mark the statements of each of the two complainants and also the statement of Vincent Leo, all of which were provided to me by the Crown as Exhibit 1.
ADMITTED AND MARKED “EXHIBIT 1”
HIS HONOUR: The Crown relies also upon the evidence of a qualified massage practitioner, Vincent Leo, to whom I just referred, who says inter alia,
- (a)there is no reason for a massage technique to include any area near the genitals;
- (b)no credible reason for massaging a patient's breasts under the circumstances described by these complainants exist; and
- (c)no justification exists for touching a patient's nipples or rubbing them between the fingers.
The Crown concedes that there are some dissimilarities between the evidence of each of the complainants particularly:
- (a)the complainant, D, alleges that the accused pulled down her underpants and touched her vaginal posterior labia during the course of a massage;
- (b)the complainant, D, alleges the accused touched the area of her pubis symphysis bones during the course of the same massage;
- (c)the complainant, D, alleges the sexual assault occurred during her first (and only) massage from the accused whereas the complainant S's first massage appears to have been unremarkable.
The evidence of the complainant, D, shows that she is a chiropractor by occupation and met the defendant at a chiropractic practice where the defendant worked as a masseur. She met him and was told that he was a naturopath who also did massages.
He suggested that they exchange services and she sought a massage that day. She had only the one massage during which the offence is alleged to have been committed.
The evidence of the complainant, S, is that she attended the defendant's rooms on several occasions purely as a client or patient. On the first occasion there was no massage conducted at all. On the second visit the defendant suggested a massage and this was undertaken but apparently was unremarkable. On the third visit the complainant again had a massage and on the next visit she again had a massage in the course of which it is alleged the defendant committed the sexual assault complained of.
The defence submits that notwithstanding some similarities in the evidence of the complainants the evidence of one should not be admitted in the case in respect of the other and that there should, therefore, be separate trials of the two charges. The submission on behalf of the defence is that in the particular circumstances of this case there is a very real danger of misuse of the evidence by the jury.
Mr Lo Monaco, for the defendant, submitted that the allegations in respect of each of the two counts in this case are unlike those in a number of other cases to which I was referred in the course of argument in that there could be no suggestion of mistake on the part of the complainants with respect to the conduct they described in those other cases.
He said (at transcript page 12 line 35):
“But a very real possibility in a case like this which is different to Devon's case is that both or even one of these complainants could be mistaken in her belief as to the nature of the touching during the full body massage.”
The reference in that passage to Devon's case is a reference to R v. Devon which was a trial in the District Court in Townsville on the 25th of November 2002 which the Crown relied upon in its submissions on the basis that it might be persuasive because the facts were said to be very similar to the present case.
In that case McGill SC, DCJ refused an application to sever the indictment and allowed similar fact evidence to be given. There were some similarities to the present case. The accused was a masseur and was charged with sexual assault in relation to two women who came to know him in his professional capacity and where it was alleged that the assaults had been committed in the course of a massage.
However the allegation in each case was one of digital penetration. One of the complainants alleged that the accused also touched her breasts and exposed his penis. One complainant alleged two acts of digital penetration. That ruling has never been tested because I am told that the jury was unable to reach a verdict.
Mr Lo Monaco's submission highlighted the nature of the sexual assaults in Devon's case when compared with the nature of the assaults alleged in the present case where there are no allegations of digital penetration or exposure of the defendant's penis. I have already referred to similarities and dissimilarities between the evidence of each complainant in the present case.
Mr Whalley, for the Crown, submits correctly that one of the bases for allowing similar fact evidence is to negative accident or to prove intent or design.
I accept the proposition that in addressing the two questions proposed by Thomas J A in R v. O'Keefe (supra) I am to proceed on the basis that the evidence of the complainants is accepted. (See also R v. Noyes QCA 564 per Holmes J at paragraph 32).
It seems to me that if the conduct alleged against the present defendant were of digital penetration the prosecution would be in a much stronger position so far as answering the two questions referred to by Thomas J A in R v. O'Keefe (supra) is concerned. I should say that I take into account not only the evidence of the two complainants but also that of Vincent Leo to which I earlier referred when addressing these questions.
The fact that the offences are alleged to have occurred in the course of a massage where the defendant had the consent of each of the complainants to touch their bodies while they lay in at least some nakedness highlights the need to be conscious of the possibility of misuse of the evidence by a jury.
In all of the circumstances I am not satisfied that the propensity evidence is of such a calibre that there is no reasonable view of it other than as supporting an inference that the defendant is guilty of the offence charged.
In reaching that conclusion I have recognised the need to undertake this exercise with special care because of the potential danger of misuse of such evidence by a jury.
I therefore refuse the application to allow the evidence of each complainant to be led in respect of each of the counts. In other words I rule that similar fact evidence is not admissible and in those circumstances the indictment should be severed.
I direct that there should be separate trials in respect of each of the two counts.
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