R v JP[2013] QDC 325

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 590AA of the Criminal Code by the defendant, JP, for the exclusion of a portion of the evidence of CA.
2. [2]
   The basis of the application is that the evidence is prejudicial, inflammatory, and is of insufficient probative value.

Charges

3. [3]
   The defendant has been charged with one count of maintaining an unlawful sexual relationship, eight counts of indecent treatment and two counts of attempted indecent treatment.
4. [4]
   The complainant is the accused’s natural daughter, BP. BP was born on 18 March 1996.
5. [5]
   The particulars of the allegations are as follows:

   1. (a)
      Count 2 – the accused showed the complainant a pornographic film;
   2. (b)
      Count 3 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;
   3. (c)
      Count 4 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;
   4. (d)
      Count 5 – the accused procured the complainant to send him a photograph of her genital area;

5. (e)
   Count 6 – the accused showed the complainant a pornographic website;

6. (f)
   Count 7 – the accused attempted to indecently touch the complainant (the subject of a nolle prosequi);
7. (g)
   Count 8 – the accused attempted to procure the complainant let a dog lick her vagina;
8. (h)
   Count 9 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;
9. (i)
   Count 10 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;
10. (j)
    Count 11 – the accused put his penis in-between the complainant’s legs and moved in and out and/or ejaculated.

The evidence objected to by the defence

6. [6]
   The evidence to which the defence objects comes from a witness, CA.  
7. [7]
   CA was a friend of the complainant. CA was born in 1996.
8. [8]
   In a s 93A interview conducted on 2 October 2008, CA told the police that on one occasion when she was staying at the complainant’s house, she and the complainant were in bed asleep.  Early in the morning the defendant came in naked and lay next to CA (T5.9).  This evidence is the subject of the objection. 
9. [9]
   She also described another occasion when he was naked in his bed and called for her or BP (T6.1).  BP went into the bedroom.  Later, BP told CA she lay on her stomach and the defendant got on her back. This evidence is not the subject of an objection.  
10. [10]
    Returning to the first incident, she described how JP, the defendant, came in and was naked.  She felt someone getting in and lying against her, and he felt as if he had no clothes on (T7-9).  At the relevant time, BP, the complainant, was in a deep sleep (T12.3). 
11. [11]
    This happened at the start of the year [2008] or late last year [2007] (T13.1).
12. [12]
    The prerecording of CA’s evidence occurred on 15 November 2012.  She confirmed the evidence that the defendant lay next to her. He asked whether she was okay, but she didn’t answer (T2-4.40-50).
13. [13]
    She confirmed that BP was asleep (T2-4).  She alleged that she told BP about this the next morning (T2-4.55).  She could feel that he had nothing on (T2-5.20).  She was half-asleep at the time (T2-5.50).  

History of the matter

14. [14]
    On 14 May 2008 BP made complaint to her mother (the wife of the defendant) that the defendant had sex with her.
15. [15]
    Thereafter BP underwent 4 s 93A interviews on 15 May 2008, 26 June 2008, 6 October 2009 and 7 December 2009.
16. [16]
    In the 93A statement of 15 May 2008 BP told the police that her father used to try and have sex with her.  She described an occasion where he came into her room naked and tried to have sex with her (T22.53)) (Count 4).
17. [17]
    She was able to give more detail by the time of the second interview on 22 June 2008.
18. [18]
    In that interview she described the following incidents:

    1. (a)
       One afternoon he typed in “My first time with daddy” on the computer and this showed sex between men and girls (T7-9) (Count 6). A similar website was located by a police forensic analysis of the computer.
    2. (b)
       One time she was upstairs in his room.  She took her pants off and were about to do it.  The mother came into the room and BP lied and said the defendant had been looking at a pimple on her leg (T14-17).  (Count 7)
    3. (c)
       On another occasion the defendant told her to let their dog lick her vagina (T19-30).  (Count 8)
    4. (d)
       On another occasion BP was sleeping at a tent at CA’s house. The defendant sent her or CA a text stating he would take CA to the Gold Coast with him if she “did it” with him (T22.30).
    5. (e)
       On another occasion he wanted CA to “do it” with him.  Instead BP went into his room and the defendant attempted to have sex with her (T22.55-52).  (Count 9)
    6. (f)
       On another occasion the defendant tried to have sex with BP.  He said he had had sex with her cousin K (T36-38).  (Count 10)
    7. (g)
       When she was in grade 5 she was at SP’s house.  The defendant wanted photos of their “rude bits”.  He sent a picture of his penis. They sent photos of their “rude bits” (T43-45) (Count 5).  There is other evidence that in fact there were photos of BP and SP sent to the defendant’s phone. 

8. (h)
   When they were at the Gold Coast, the defendant attempted to have sex with BP (T48-51) (Count 11).
9. (i)
   When BP was in grade 2 the defendant showed her a pornographic movie Catalina Capers (Count 2).  This video was seized by the police.

19. [19]
    In the third 93A statement dated 6 October 2009 BP:

    1. (a)
       Described Count 3 in more detail (T13-20)
    2. (b)
       Described Count 9 in more detail. She said that when CA was staying over the defendant texted them and said that if they had sex with him he would take CA to the Gold Coast.  CA refused but BP went into the defendant’s room and he attempted to have sex with her (T21-33).
    3. (c)
       Described Count 11 in more detail (T23-27).
    4. (d)
       Described various uncharged acts (T38-42).

20. [20]
    In the fourth 93A statement dated 7 December 2009 BP:

    1. (a)
       Again described Count 3 in more detail (T5-15).
    2. (b)
       Again described Count 9 in more detail. She again confirmed the defendant had texted them wanting to have sex with CA and BP. (T16-24).
    3. (c)
       Again described Count 11 in more detail.
21. [21]
    The pre-recording of BP’s evidence occurred on 14 November 2012.
22. [22]
    She persisted with her allegations that her father had tried to have sex with her.
23. [23]
    The first trial of this matter occurred in the Gladstone District Court in February 2013. There was a hung jury.
24. [24]
    The issue of CA’s evidence was raised but no formal ruling was given concerning the evidence.
25. [25]
    It seems that the Crown had decided not to lead the relevant evidence of CA (see T4-3). There had been an agreement between the defence and the Crown for the evidence to be edited.
26. [26]
    But at the pre-recording the defence cross examined on the matter for a forensic purpose (T4-3.45).  The defence did not require this to be edited.
27. [27]
    It was the Trial Judge’s view that the evidence of CA concerning the defendant coming in to the bed naked was relevant as it was capable of showing a sexual interest in BP (T4-5-30 and T5-134). Instructions were taken by the Defence and there was no application to exclude the evidence at that point (T4-17.15).
28. [28]
    Indeed the summing up (Day 7 pp 7-66-67), the Trial Judge directed the jury that the use that could be made of the relevant evidence was that it potentially showed a sexual interest in BP. 
29. [29]
    The defence has now objected to the evidence.
30. [30]
    I do not consider there is any requirement for the defence to establish a special reason to reopen the matter as there has never been any formal ruling on the topic (see s 590AA(3) of the Criminal Code).

Defence submissions

31. [31]
    The defence submits that the allegation made by CA that the defendant got into bed with her whilst naked is an uncharged act.  It is submitted it is not related to any of the charges and not supported by the other evidence.  It is submitted that the evidence is of no probative value.  It is submitted that the evidence at its highest would relate only to the issue of propensity.  
32. [32]
    It is not suggested that the defendant got into the side of the bed in which his daughter was sleeping nor is it suggested he attempted in any way to communicate with his daughter during the entry into the bed. 
33. [33]
    In reliance on R v Beckett [2009] QCA 196, the defence says that the admission of similar fact evidence would be rare. 
34. [34]
    As a result the defence seeks the exclusions of portions of the s 93A statement of CA and the pre-recorded evidence relevant thereto.  

Crown submissions

35. [35]
    The respondent Crown opposes the application.  The respondent Crown submits that Counts 3, 4, 9, 10 and 11 involve the defendant putting his penis in or near the complainant’s genital area or between the complainant’s legs.  
36. [36]
    The complainant says that the conduct the subject of Count 4 occurred in her bedroom.  
37. [37]
    Counts 3, 9 and 10 occurred in the defendant’s bedroom, whilst Count 11 occurred on a couch in a holiday unit on the Gold Coast.
38. [38]
    Counts 2, 5, 6 and 8 do not involve sexual touching of the complainant by the defendant.
39. [39]
    In addition to the conduct the subject of the particular charges, the maintaining charge covers other conduct.  
40. [40]
    The complainant says the defendant used to try and have sex with her in her bedroom and in his bedroom over a number of years.  She describes conduct that the defendant tried to put his “doodle in” inside her but it not going in.  He would move backwards and forwards and it would end up squirting sperm.  Sometimes he would come into bedroom in the morning to do it.  For Count 4, she described that he came in, in the early hours of the morning before he went to work.
41. [41]
    Count 9 on the indictment relates to an incident where the complainant said that CA was at the complainant’s house for a sleepover.  The complainant gave evidence that JP, the defendant, sent a text message to her or CA asking one of them to go into his bedroom where he was.  The complainant’s evidence is she went into the bedroom.  The defendant asked whether CA was going to come in too, and the complainant said she was not.  The complainant says when she went inside the room she took off her pants and crawled underneath the blankets with her father.  She was lying on her stomach.  The defendant tried to put his penis in her vagina but it went between her legs, and he ended up squirting sperm.
42. [42]
    The complainant gave other evidence relating to CA.  The complainant gave evidence that on a night in which the complainant was sleeping over at CA’s house in a tent in the backyard, the defendant sent a text message to the complainant or CA that said he would allow CA to come with the family on a holiday to the Gold Coast if she would have sex with him.
43. [43]
    The Crown submits that the evidence of CA is admissible in the Crown case as evidence of sexual interest.  
44. [44]
    It is submitted by the Crown that the test established by the High Court in Pfennig v R (1995) 182 CLR 461 is applicable to determining whether evidence of other acts by the accused are admissible as circumstantial evidence tending to prove the commission of the charges on the indictment.  
45. [45]
    The evidence will be admissible if there is no rational explanation of it consistent with innocence of the accused person (see BBH v The Queen (2012) 245 CLR 499).
46. [46]
    The Crown in this case submits:

    1. (a)
       The defendant entered the complainant’s bedroom in the early hours of the morning whilst it was dark;
    2. (b)
       The complainant’s bedroom was a place where other sexual conduct was alleged by the complainant to have occurred, in particular the conduct the subject of Count 4 and numerous unparticularised occasions forming part of Count 1;
    3. (c)
       The early hours of the morning is consistent with the time of Count 4 and other unparticularised occasions forming part of Count 1;
    4. (d)
       The complainant was asleep when he entered the room;
    5. (e)
       The defendant got into the complainant’s bed inside the complainant’s bedroom; 

6. (f)
   The defendant was naked.

47. [47]
    The Crown submits that the evidence, if accepted, could allow the jury to conclude that the defendant had a sexual interest in BP.
48. [48]
    With respect to the suggestion that the sexual conduct was directed at CA, the Crown submits the jury are entitled to infer:

    1. (a)
       The defendant expected BP to be alone in her bed; or
    2. (b)
       The defendant expected both CA and BP to be in the bed and was sexually interested in either the complainant alone or both of them.
49. [49]
    This is consistent with the complainant and CA’s account of Count 9 which involves a request by the defendant that one or both of the girls go into his bedroom.  
50. [50]
    The Crown submits, applying the Pfennig test, there is no rational view of the disputed evidence consistent with the defendant’s innocence of the charges on the indictment.  There is no rational innocent explanation for the complainant’s father to enter her bed naked during the early hours of the morning and speak to and lay against another occupant of the bed before leaving.

Determination

51. [51]
    For the purposes of my ruling I must accept the Crown evidence at its highest.
52. [52]
    It is my conclusion that the evidence given by CA is relevant and probative to the issues in the trial.  
53. [53]
    In BBH (supra at [50] per French CJ) it was noted that relevant evidence is determined by reference to the content of the proposed evidence and the issues at the trial, including the elements of the offences with which the accused is charged, issues about the facts constituting those elements and issues about facts relevant to facts in issue.
54. [54]
    Central facts in issue in this trial include whether the events occurred as alleged by the complainant. One aspect of this is whether the defendant had an unnatural sexual relationship with her.  
55. [55]
    It is my opinion that the evidence of CA is firstly admissible on the basis that it is relevant evidence to the relationship between the defendant and the complainant that he was a person prepared to go into her bedroom nude and hop into her bed.  
56. [56]
    That shows in my opinion or at least the jury is entitled to conclude that this showed that the defendant had a sexual interest in the complainant. The jury could draw the conclusion that the defendant expected to find BP in the bed.
57. [57]
    The jury would be entitled to find that there was an unnatural sexual interest by the defendant in BP. 
58. [58]
    The description of what occurred in the bed thereafter between CA and the defendant is part of the narrative. 
59. [59]
    In my opinion the evidence is further admissible on the basis that the accused had a sexual interest in both the complainant and CA.
60. [60]
    This is consistent with the allegation in Count 9. It is also consistent with the evidence that he texted the girls and wanted to have sex with both of them.   
61. [61]
    One view the jury may make of the evidence is that the defendant was interested in both of the girls CA and BP. 
62. [62]
    He in fact had tried to use his daughter BP to organise sex with CA. The fact he was prepared to use his own daughter to do this showed an unnatural relationship between him and his daughter.
63. [63]
    This was extended to his being prepared to hop into his daughter’s bed when nude and then lie against CA. 
64. [64]
    Further or alternatively, applying the Pfennig test, it is my view there is no rational view of the disputed evidence consistent with the defendant’s innocence of the charges on the indictment.  There is no rational innocent explanation for the complainant’s father to enter her bed naked during the early hours of the morning and speak to and lay against another occupant of the bed before leaving.
65. [65]
    Having determined it is relevant evidence the next question is whether in the exercise of the discretion the evidence should be excluded.
66. [66]
    It has been held previously that if evidence is of slight probative value greatly outweighed by its prejudicial effect then the discretion may be exercised (see R v Hasler ex parte Attorney-General [1987] 1 Qd R 239).
67. [67]
    In my opinion, firstly the evidence is not of slight probative value.  In the circumstances of this case it is of reasonable probative value.
68. [68]
    Secondly whilst it is prejudicial I do not consider its probative value is outweighed by the prejudicial effect.
69. [69]
    In those circumstances I decline to exclude the challenged evidence.