R v Haines[2007] QDC 66

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   This is an application by the Crown pursuant to s 590AA of the Criminal Code (“the Code”) seeking rulings in respect of the joinder of charges and/or that similar fact evidence be admissible in the trial against Lance Lamarr Haines (“the Accused”), who faces a number of charges alleging sexual misconduct against four complainants.

Background:

2. [2]
   A brief summary of the recent history of this matter, is that the accused has been before the court on at least two previous occasions where pre‑trial rulings have been made, firstly in respect of the admissibility of similar fact evidence by Francis James Barram (“Barram”) and Gregory Alexander Bold (“Bold”), who were then potential witnesses only (so far as I can ascertain) in a trial where Luke Jonathon Brook (“Brook”) and Richard Walliker (“Walliker”) were the complainants.  Barram and Bold then became complainants themselves in the indictment against Haines, which is presently before the court.  That indictment also included a fifth complainant, Cameron Charles Dupree (“Dupree”), in respect of whom there was a second application to “sever” that trial from the trial of the other four complainants but whose evidence the Crown now wishes to lead in the trial involving those four complainants on the basis of its “similar fact” quality.

3. [3]
   A chronology of the proceedings against the accused would appear to be as follows:

1. (a)
   On 9 August 2004 a pre‑trial hearing was conducted before His Honour Judge Boulton (“Boulton DCJ”) on whether the evidence of Barram and Bold could be led as similar fact evidence in the trial against the accused, wherein Brook and Walliker were the complainants;

2. (b)
   Boulton DCJ ruled that such statements were admissible on the basis that there was “…… such a similarity of pattern in the actions that have been referred to that it would be ‘an affront to commonsense’ to exclude such matters from the jury”^[1];

3. (c)
   The further complaint then arose in respect of the fifth complainant Dupree, the charge in respect of whom was intended to be joined on the same indictment as the other four complainants and in respect of which the pre‑trial hearing on this issue came before His Honour Judge Wylie Q.C. on 15 August 2005, who ruled that the charge involving Dupree “…… should be the subject of a separate trial”^[2];

4. (d)
   At the subsequent trial involving the complainant Dupree the accused was acquitted of the charge of sexual assault against him;

5. (e)
   In the current application, the Crown seeks one or other of the following rulings:^[3]

1. (i)
   that the complaints of all four complainants ie., Brook, Walliker Barram and Bold be joined in the one indictment “…… pursuant to s 567(2) (of the Code) as they are matters ‘of the same or similar character …… and their matters heard in the same trial and that the evidence of Dupree be led as similar fact evidence”; or

2. (ii)
   that the complaints of “…… Brook and Walliker be joined and their counts be tried together and that the evidence of Barram, Bold and Dupree be admitted as similar fact evidence”; or

3. (iii)
   “…… if Brook is severed from Walliker …… the evidence of Walliker certainly and also the other three complainants be led as similar fact evidence.”

Boulton D.C.J’s Ruling to Stand:

4. [4]
   At the current hearing, when the history of the matter was reviewed and after considering a number of authorities^[4] decided post Boulton DCJ’s ruling, it was accepted by both parties that the joinder of the complaints of Brook and Walliker has already been decided by Boulton DCJ, so that this issue does not now need to be reconsidered.

Issues to be decided:

5. [5]
   Ultimately the Crown summarised the orders it seeks in this application, namely “the joinder of Bold and Barram as complainants with those of Walliker and Brook …… and also that the evidence of Dupree be led as similar fact.”^[5]

The law:

6. [6]
   Pursuant to s 567(2) of the Code:

“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.” 

The Crown’s basic submission here is that all four complaints are matters “of the same or similar character” and therefore are capable of being joined in the one indictment.  Whether charges should be heard separately is based upon the principles decided in De Jesus v R (1986) 68 ALR 1 which effectively decided that charges can only be joined and heard together if the evidence of each complainant is admissible in the trial of the other and no “unacceptable prejudice” would arise within the meaning of s 597A of the Code. 

Applicant’s submissions:

7. [7]
   The Crown submits that the main “general similarities” are:

“All five were patients of the accused;

All five trusted the accused implicitly;

The relationship moved to being social as well as professional;

There was never anything of a sexual nature happening at the clinic;

The offences occurred in a social setting;

The accused was pretending to be ‘treating’ all of these men;

The behaviour of touching by cupping the penis and testicles is the same;

Not one of these men initially said anything to the accused when they were touched as they all believed that this was some form of treatment.”^[6]

8. [8]
   The Crown further submits that “the experiences suffered by both ‘couples’ are also sufficiently similar to be strikingly similar. It is submitted that consistent with Pfennig and Phillips, all four complainants could remain and the trial deal with all four.”^[7]

“Similar fact” evidence:

9. [9]
   The principles relevant to the admission of “similar fact evidence” have been the subject of much judicial discussion and debate in recent years, particularly in the High Court matters of Pfennig and Phillips together with R v O'Keefe (2000) 1 Qd R 564 and BAR.^[8]

10. [10]
    Essentially, Phillips reiterated that the test for the admissibility of similar fact evidence is that stated in Pfennig, particularly at paragraph [54] of the judgment in Phillips, which relevantly states when referring to the “… fundamental aspect of the requirements for admissibility:  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.’  It must have ‘a really material bearing on the issues to be decided’.  It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’.”  These comments followed the reference to the well‑known statement in Pfennig:

“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.”^[9]

 Respondent’s submissions:

11. [11]
    The defence opposes the joinder of all four complaints and the admission of the evidence of the witness Dupree as “similar fact" on the basis that the criteria set out in Pfennig and reiterated in Phillips, allied with what was stated in BAR, have not been satisfied to allow either the full joinder to occur or the evidence of Dupree to be admitted as similar fact.

Findings:

12. [12]
    On a review of all the material, I find that there is “a sufficient nexus” and “strength of its probative force” in respect of the evidence to be adduced concerning the four complainants Brook, Walliker, Barram and Bold on the basis that while there are differences in the detail of the evidence to a greater or lesser extent in each of the four complaints, there is a sufficient “similar character” running through each of the complaints, namely:

• the Accused carrying out his actions in a social setting after consulting with them professionally;

• placing his hand on a complainant’s chest on the basis that such action was part of a technique to regulate breathing control and at the same time fondling the complainants testes and/or penis, either inside or outside a complainant’s trousers on the basis that it was relevant to some breathing technique, and;

• at all times giving the impression that his actions were relevant to his professional expertise as a homeopath,

to satisfy the principles of joinder pursuant to s 567(2) of the Code.

13. [13]
    With respect to the admissibility of the evidence of the witness Dupree, I am not persuaded that his evidence satisfies the fundamental “striking similarity” test, as again although there are similar features to the other four complaints, there is not “a sufficient nexus” between this witness’s evidence and the other four complaints to allow its “probative value” to outweigh its “prejudicial effect” and I find that this evidence should not be admitted as similar fact evidence in the prosecution of the complaints of Brook, Wallicker, Barram and Bold.

Rulings:

14. [14]
    My rulings therefore are as follows:

1. (a)
   The complaints of Brook, Walliker, Barram and Bold may be joined in the one indictment; and

2. (b)
   The evidence of Dupree not be admitted as similar fact evidence in the prosecution of those complaints.