R v Conway[2006] QDC 242

DISTRICT COURT OF QUEENSLAND

1. [1]
   This matter came before the court initially on 18 October 2005 upon a defence application to stay the indictment due to the length of the delay between the date of the alleged offences and the date of complaint to the police. An alternative application for severance of the indictment was made on the basis that the evidence in relation to one complainant was inadmissible and therefore not joinable vis a vis the other complainants.

2. [2]
   On the hearing of these applications the court, applying the test in R v O'Keefe[1], held that the charges were cross admissible because they could be regarded as similar fact evidence in the trial and therefore refused both the stay and the severance application.

3. [3]
   The offences which are the subject of this application comprise three separate incidents.

4. [4]
   Counts 1 – 3 occurred when the complainant, AJ [born on 24 November 1952] was 5 or 6 years old. He was with his sisters LC [born on 22 February 1951] and L when they decided to spy on the accused (their uncle) through his bedroom window. They saw the accused masturbating and when he saw them , he called them into the room. Upon entering the room they could see his penis was erect. He started to masturbate whilst looking at them. He then forced his penis into the mouth of AJ. He took his penis out of his mouth and wiped his hand on the face of AJ and LC. He then ejaculated into the faces of the three children and they were told to leave.

5. [5]
   LC also remembers this incident stating that she was called into the room with her sister L and brother AJ and watched him, having seen him masturbate through a window. He ejaculated on their faces and it went through her long hair and she remembers him putting his penis in AJ’s mouth.

6. [6]
   The second incident occurred when the complainants were staying at Churchill with their grandparents. On the night in question the accused said he was going for a walk to the local garage to purchase some tobacco. He asked LC, who was 11 years of age, to go for a walk with him. AJ decided to follow them. On the way back from the garage the accused asked if they wanted to play hide and seek and they agreed. The accused ran off with LC and AJ looked for them. When he found them the accused was lying on top of LC with his pants down pushing his penis into LC. He asked her if it hurt when the white stuff was squirted into her.

7. [7]
   LC recalls the incident although she could not say whether she was penetrated.

8. [8]
   The third set of offences occurred when the complainant NB [born on 8March 1956] was at home with her sister L. On the day in question they were working on an assignment, the accused had tried to assault them and they had both run off to their room. When they eventually came out of the room and he offered to help them with their assignments. He then said he wanted to see them naked and when they refused to do that, he said he would show them his penis. He then began fondling himself. He talked about his penis, and asked them to measure it. They were both crying. He then started to pull on his penis. He rubbed his erect penis against NB’s skin and ejaculated over her chest and he tried to get L to lick her chest clean. When she wouldn’t he rubbed her face onto NB’s chest. They were told to stay in the room and not wash it off.

9. [9]
   On 1 March 2006, the High Court delivered the decision of Phillips v the Queen[2]. The court rejected the test in O'Keefe as the definitive test and held that intermediate trial courts need to apply the test in The Queen v Pfennig[3] and other preceding decisions of the High Court on the point^[4].

10. [10]
    The court noted in Philips v the Queen  [5]:

“…a fundamental aspect of the requirements for admissibility (of similar fact is): the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence… is exceptional and requires a strong degree of probative force”^[6] it must have “a really material bearing on the issues to be decided”^[7]. It is only admissible where it is a probative force “clearly transcends it’s merely prejudicial effect^[8]”. “Its probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind”^[9] The criterion of admissibility for similar fact evidence is “the strength of its probative force.”^[10] It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence^[11]. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused.”^[12] Admissible similar fact evidence must have “some specific connection with or in relation to the issues for decision in the subject case.”[13] As explained in Pfennig v The Queen[14]:

“The evidence of propensity needs to have a specific connection         with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the  prosecution case or some aspect or aspects of it.”   ”

11. [11]
    In light of the High Court’s comments in Phillips v The Queen[15] it is necessary, in my view, to now review the original decision in this case in relation to severance of the indictment.

12. [12]
    When the similarities between the acts alleged are examined it can be seen that some of similarities are unremarkable. In this category falls the fact that the children were pre-pubertal, the children were siblings, the accused was the uncle of the children and he was looking after them and that the events took place during the day.

13. [13]
    There are significant similarities in that the acts involved masturbation in front of multiple children and involved ejaculating directly onto the children which is in itself quite unusual conduct. However, it should also be noted that there are striking dissimilarities as well namely in relation to the first incident, the accused was masturbating on his own when he discovered the children spying on him. He wasn’t seeking out the children. The incident seems to have taken place over a reasonably short period of time and involved forcing a young male child to perform oral sex on him.

14. [14]
    The second offences involved a rape offence and they are clearly not joinable.

15. [15]
    The third set of offences namely the masturbation in front of the two girls is a longer episode, the accused attempts to see the children naked and when they refused then the masturbation followed. The masturbation occurred against the child rather than at his own hand and involves bizarre behaviour such as getting them to measure the penis and rubbing the ejaculate from the chest on to the other girls face.

16. [16]
    This leads me to the conclusion that whilst there are some significant similarities and therefore the evidence has some probative value of the requisite kind, it is not “sufficiently great to make it just to admit the evidence”. Therefore on the test laid down in Pfennig v The Queen[16]  the evidence cannot be treated as being strikingly similar.

17. [17]
    It follows from this reasoning that the evidence on counts 25 – 29 is not admissible in relation to counts 1-3 and 7 and the evidence of LC and AJ is not admissible in the case involving NB. I have already noted that the evidence in the rape charge is not joinable with the masturbation offences in counts 1 – 3. I order that the indictment be severed in respect of those counts.