JMP v The Queen[2010] QDC 162

DISTRICT COURT OF QUEENSLAND

The Application

1. [1]
   The applicant seeks to sever the indictment on the ground of an improper joinder of counts pursuant to s 567 of the Criminal Code (Qld) and seeks an order for separate trials pursuant to s 597A of the Criminal Code (Qld).

The Indictment

2. [2]
   The applicant is charged with a number of sexual offences committed on divers dates between 30 September 1990 and 31 December 2007 at various places in Queensland involving six complainant children, five his biological daughters and the sixth a non-biological daughter whom he had raised from infancy. There are five counts of maintaining a sexual relationship with a child with a circumstance of aggravation (rape), one sexual assault, seven rapes, one further maintaining a sexual relationship with a child and one indecent treatment of a child under 16, under 12, under care as a guardian.

3. [3]
   An indictment was originally presented on 7 August 2009 and an amended indictment presented by leave at the hearing of the application. Some changes were made to the dates of the offences in some of the counts. The first indictment was the subject of a nolle prosequi.

The Offences

4. [4]
   The offences as alleged in the indictment and as particularised by the prosecution are as follows. The names of the complainants have been reduced to initials only:

Complainants

5. [5]
   The dates of birth and ages of the complainants at material times are as follows:

Concessions about Joinder 

6. [6]
   The applicant conceded that some of the counts may be joined in the indictment:

1. (a)
   Counts 1 and 2 relate to the same complainant and can be joined.

2. (b)
   Counts 4 and 5 relate to the same complainant and can be joined.

3. (c)
   Counts 6, 7, 8, 9 and 10 relate to the same complainant and can be joined.

4. (d)
   Counts 11 (PBP) and 12 (IKL) can be joined because the alleged conduct involved both of them.

5. (e)
   Counts 13, 14 and 15 relate to the same complainant and can be joined.

6. (f)
   Count 3 (TLP) should be tried separately.

The Statutory Provisions

7. [7]
   The two relevant provisions of the Criminal Code provide as follows:

"567 Joinder of charges

1. (1)
   Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences. 

1. (2)
   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";

and,

"597A Separate trials where 2 or more charges against the same person

1. (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 1 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 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.

1. (1AA)
   In considering potential prejudice, embarrassment or other reason for ordering separate trials under this provision in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion."

Submissions

8. [8]
   The applicant submitted that the counts in the indictment "are not founded on the same facts or are not 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”. It was submitted there was no temporal connection and that the range of dates in respect of each count was wide. The applicant submitted that there was a risk of impermissible prejudice arising out of the joinder and that separate trials should be ordered.

9. [9]
   The respondent submitted that all the charges were properly joined for two reasons:

1. (a)
   It is a series of offences of the same or similar character or is a series of offences committed in the prosecution of a single purpose; and

2. (b)
   There is a nexus between the offences in that they are so connected that evidence of the offences involving indecent acts on one complainant would be admissible on the trial of another or other complainants.

10. [10]
    The respondent submitted that the conduct of the applicant viewed as a whole demonstrated a system or pattern of offending and an underlying unity in method; that the continuity of the offending overall was a salient feature when one considered the temporal connection between the offences. It was submitted that temporal connection was demonstrated by the following:

1. (a)
   The applicant was in a position of trust with respect to all of the complainants;

2. (b)
   The applicant was alleged to have commenced offending against each complainant when they were aged five years old or younger;

3. (c)
   The applicant, at one point, is alleged to have been maintaining a sexual relationship with the five eldest complainants;

4. (d)
   The applicant is alleged to have ceased offending against each complainant when they were aged between 10 and 16 years of age.  The offending ceased in similar circumstances for five complainants in that all started to resist the abuse of the applicant.  With respect to the other complainant, IKL, she was raped on the date of the arrest of the applicant.

11. [11]
    The respondent submitted that the pattern of offending would start against each complainant at an early age when they were vulnerable and the different ages of the complainants in a lineal sense revealed a system of behaviour by the applicant. The respondent also pointed to unusual features and striking similarities in the allegations of the complainants:

1. (a)
   The applicant is alleged to have committed offences against every one of his daughters.

2. (b)
   No complainant alleges physical violence against them by the applicant.

3. (c)
   All six complainants describe the applicant taking them for a drive into bush land having sexual intercourse with them.

4. (d)
   Five complainants describe offences occurring in their own bed.

5. (e)
   Four complainants alleged offending that commenced with partial penile penetration which gradually evolved into full penetration.

6. (f)
   Four complainants describe offences in the bed of the applicant, two of whom describe their mother being present but asleep.

7. (g)
   Four complainants describe offences occurring in the bathroom.

8. (h)
   Three complainants were told by the applicant not to tell their mother about the offending, given to each in similar terms.

1. (i)
   Two complainants describe sexual intercourse occurring on or under a bridge, although not the same bridge.

10. (j)
    Two complainants describe offences occurring in a fishing boat.

10. (k)
    Two complainants describe offences occurring in a shed underneath the house.

12. [12]
    The respondent points to some other features of the counts where evidence by one witness is material to the counts involving more than one complainant.

1. (a)
   Evidence of the wife of the applicant relating to all complainants.

2. (b)
   Evidence of PBP and IKL about simultaneous offences upon them in the shower.

3. (c)
   Evidence of BSP seeing the applicant take PBP for a drive.

4. (d)
   Midway through the offending period PBP and IKL made preliminary complaints as did AML and TLP.

13. [13]
    Finally, the respondent identified the likely issue in the trial in respect of all of the counts as being whether the offences occurred as alleged by the complainants (emphasis added). Hence it was submitted that the "similar fact" evidence is in dispute, that being a matter that is relevant to the issue of joinder.

Discussion about submissions

14. [14]
    If the issue is whether the offences occurred at all that is a salient fact in the determination of this application, for reasons that are apparent in the discussion about authorities that follows.

15. [15]
    I do not agree with the applicant’s submission. There are striking similarities that justify and support a joinder of all the charges in the one indictment. There are numerous matters of evidence, as submitted by the respondent, that are cross-admissible as between complainants. The factual circumstances show a method and a pattern of conduct by the applicant that further supports the joinder.

General Principles

16. [16]
    The general principles relevant on this application of this nature may be summarised as follows:

• Allegations of sexual offences should be tried separately except where the evidence of one count is admissible on the other count:  De Jesus v R (1986) 61 ALJR 1; 
• The evidence must possess a particular "probative value or cogency."  The authorities speak of the objective improbability of [the propensity or similar fact evidence] having some innocent explanation other than an inference that the accused was guilty of the offence charged:  Pfennig v The Queen (1995) 182 CLR 461.
• The test in Pfennig remains the relevant test and should be applied: Phillips v The Queen (2006) 225 CLR 303 at [64]; 
• Matters such as the context of the prosecution case and the ’taking of the prosecution case at its highest’ are critical considerations.  However the Pfennig test "does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.  But it does require the judge to exclude the evidence if, viewed in the context and the way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence":  Phillips v The Queen at [63];
• Whether offences are "a series of offences of the same or a similar character" involves a determination of time, place and other circumstances and their legal character or category:  R v Cranston [1988] 1 Qd R 159 at 164;
• A nexus may be constituted by factual similarity or may be demonstrated by the admissibility of the same evidence in respect of the different offences:  R v May [2007] QCA 333 at [35].
• See also R v WAH [2009] QCA 263 and R v NI [2007] QCA 442.

The Relevant Case Authority

17. [17]
    The leading authority with respect to joinder of charges in an indictment is Pfennig. Mason CJ, Dean and Dawson JJ said at pages 482-483:

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged.  The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred.  Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed.  But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused.  Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such.  But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.  Here "rational" must be taken to mean "reasonable" and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.  Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. 

In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence.  Those principles have not been disavowed by any subsequent decision of this Court and they were accepted and applied by the trial judge in this very case.  The discussion in Hoch was expressed in terms of evidence of similar facts rather than propensity evidence.  That was because the evidence in that case lent itself to that classification though, in the light of the possibility of concoction, it was held to be inadmissible. 

There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raised the same considerations in terms of admission into evidence.  The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases.  Thus, evidence 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 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.  What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand.”

18. [18]
    In R v WAH (supra) Keane J referred to the conditions of the cross-admissibility of evidence by reference to the joint judgment of the High Court in Phillips v The Queen (supra) at 307.  The following is an extract of the relevant principles, the case references having been omitted:

• 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 whereas probative force clearly transcends its merely prejudicial effect.
• Its probative value must be sufficiently high: it is not enough that the evidence merely has some probative value of the requisite kind.
• A criterion of admissibility for similar fact evidence is "the strength of its probative force."
• It is necessary to find "a sufficient nexus" between the primary evidence on a particular charge and the similar fact evidence.
• The probative force must be "sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused".
• Admissible similar fact evidence must have "some specific connection with or relation to the issues for decision in the subject case."
• 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.

Further discussion

19. [19]
    Similar issues to those which appear to be relevant in the subject case were considered in R v NI (supra). McMurdo J referred to what the High Court said in Phillips v The Queen (supra), that is:

"[i]t is essential to identify the issue or issues on which the similar fact evidence is tendered for its probative value to be assessed.  The issue here on each count was whether an offence had been committed.  The issue is not whether it was the appellant who had committed the offence.  The contest concerned whether the conduct described by the complainant did occur.  The prosecution was arguing that the similarity of the respective versions was so strong that each version had a high probative value in the proof of the events, according to the other version, did happen."

20. [20]
    It would be apparent from the passage just cited that a similar argument arises in this application. It seems to me that so far as the joinder of charges per se in respect of each of the complainants is concerned, there could be no argument against that. Indeed so much is conceded by the applicant. However, in my view the same argument supports the joinder of the charges in respect of any one complainant with each of the charges in respect of the other complainants. The compelling factor in arriving at that view is that the applicant's case on trial would seem - to the extent that it is possible to discern that at this stage of the proceedings - to be one of disputing whether the acts complained of by all or any one of the complainants actually happened; and because of the features to which I have referred, which are common to most if not all of the counts, being strikingly similar or constituting a pattern or method adopted by the applicant in his treatment of the complainants over a long period of time.

21. [21]
    See Hoch v R (1988) 165 CLR 292 per Mason CJ, Wilson and Gaudron JJ at 295 and Brennan and Dawson JJ at 301.

Conclusion

22. [22]
    The evidence of each child was probative in respect of other complainants in that the method or pattern of the conduct of the applicant (the girls being dealt with in a sense "in turn" and the offending conduct ceasing when they were about the same age and at an age when some of them protested at their treatment) was a significant feature of the case.

23. [23]
    The probative value of the evidence of each complainant that is cross-admissible in each case relating to another or others is not outweighed by the prejudicial effect of the evidence. The latter is able to be ameliorated by appropriate directions to the jury in the trial. The evidence of each complainant that is relevant in the cross-admissible sense is in respect of other complainants should not be excluded.

24. [24]
    The joinder of all the counts in the indictment is proper and permissible. I will not order separate trials.

ORDERS

25. [25]
    1. Application refused.