R v Simmons[2014] QDC 303

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with the following offences:

Count 1that on 24 March 2013 at Brisbane he unlawfully and indecently

assaulted A;

Count 2that on 24 March 2013 at Brisbane he raped A.

2. [2]
   The matter was listed for trial before his Honour Judge Horneman-Wren SC on 7 April 2014. However the matter proceeded as an application pursuant to s 590AA Criminal Code.  One issue the subject of the application related to the admissibility of evidence of consensual sexual intercourse between the defendant and B who lived with the complainant.  The incident of sexual intercourse between the defendant and B occurred shortly before the alleged rape of A.  Judge Horneman-Wren SC ruled that the evidence was inadmissible. 

3. [3]
   The defendant’s trial commenced before his Honour Judge Everson on 11 August 2014. On 18 August 2014 the jury indicated that it was unable to reach verdicts and was discharged.

4. [4]
   By application filed 27 October 2014 the Crown applies pursuant to s 590AA(3) Criminal Code for leave to re-open the pre-trial ruling made by his Honour Judge Horneman-Wren SC on 7 April 2014.

5. [5]
   In particular the Crown wish to lead the following evidence contained in B’s statement^[1]:

“26.I went to the kitchen and got a glass of water whilst (the defendant) went to the bathroom. When he was finished we both went into my bedroom and proceeded to kiss and become intimate.

….

3. 28.
   (The defendant) told me that he didn’t have a condom, but we continued to kiss before we both ended up having consensual sex.

….

3. 30.
   We would have had sex for about thirty minutes. I didn’t feel (the defendant) ejaculate. He stopped before getting off me and said ‘I’m going to go sleep on the couch’. He put his clothes on in my room before leaving. I remember that the sun was up by now as it was shining through the separations in the blinds.”

Factual background

6. [6]
   Ms A and Ms B were friends and lived together at a unit at Paddington.

7. [7]
   On the night of Saturday 23 March 2013 they went out together with others. They later returned to their unit at about 10.00pm.

8. [8]
   They decided to go out again and caught a taxi to a city hotel arriving at about 12.15am on Sunday 24 March 2013. The defendant was at the hotel with a number of his friends. The defendant and his friends had not previously met Ms B or Ms A.

9. [9]
   The defendant and his friends joined Ms B and Ms A and there was general interaction. Ms A observed Ms B and the defendant flirting with each other. Ms B said that she was consensually kissing and interacting with the defendant.^[2]

10. [10]
    Ms B invited the defendant back to the unit occupied by herself and Ms A. The defendant, Ms B and Ms A travelled back to the unit in a taxi.

11. [11]
    Ms B’s evidence is that once they arrived at the unit Ms A went to her bedroom. She said that the defendant went to the bathroom and shortly thereafter she and the defendant went to her bedroom where they engaged in consensual sexual intercourse.

12. [12]
    Ms A’s evidence is that she went to her bedroom and started to get ready for bed. She said that the defendant entered the bedroom and asked if she was alright. Ms A assured the defendant that she was fine and said she was tired and wanting to go to bed. The defendant said “let me give you a hug” and Ms A agreed to that. After the hug Ms A gave the defendant a pat on the back and went to walk away, but the defendant grabbed her and tried to kiss her. Ms A said “you’re here for B” and told the defendant that she needed to get ready for bed and asked him to leave her alone.^[3]

13. [13]
    After changing into her pyjamas Ms A went to the kitchen. At this stage Ms B was in the bathroom. While she was in the kitchen the defendant approached Ms A from behind and pressed up against her and put his hands on her hip. She asked him not to touch her like that and pushed his hands away. The defendant again tried to press up against her and Ms A told him “you’re bothering me. Can you leave me alone, please. You’re here with B. I have a boyfriend. Can you please leave me alone.”^[4]

14. [14]
    Ms A said that Ms B then finished in the bathroom and the defendant went back with her. Ms A said that after finishing making some toast she went back to her bedroom and closed the door. She telephoned her boyfriend and said that Ms B had “brought home a guy and he’s been bothering me”.^[5]  She said that she stayed on the telephone with her boyfriend until she fell asleep.  She said that she woke up feeling someone on top of her and starting to penetrate her from behind.  She said “what are you doing?  What do you think you’re doing? Get off me.  Get away from me”.^[6]

Section 590AA ruling made on 7 April 2014

15. [15]
    The ruling made by his Honour Judge Horneman-Wren SC on 7 April 2014 was as follows:

“The defence has sought to have excluded certain evidence relating to consensual sexual intercourse that took place between the defendant and the flatmate of the complainant, Ms B, earlier in the morning on which the matters the subject of the rape charge – well, both charges said to have occurred.  In my view, the evidence is not probative of – well, doesn’t have any probative value in relation to the issues in respect of the charge of rape.  And it is of a prejudicial nature which outweighs any probative value that it may have.  For that reason I will order that the – or direct that the evidence be excluded.”^[7]

16. [16]
    The ruling was expressed as being that evidence touching on the question of the defendant having had sexual intercourse with B contained in her statement, DNA evidence, and parts of the defendant’s conversation with the police, be excluded.^[8] 

Application for leave to re-open direction or ruling

17. [17]
    Section 590AA(3) provides:

“A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to re-open the direction or ruling.”

18. [18]
    In R v Steindl^[9] McMurdo P said:

“A re-opening of a pre-trial hearing should not be lightly undertaken.  It is obviously undesirable that there be two conflicting decisions on a matter of law from different judges of the same court.  Substantial disagreement with the earlier ruling may not always justify its re-opening.  For example, if a party applies for a reopening of a pre-trial hearing solely or primarily for the purpose of judge shopping, such an application should ordinarily be refused and, if appropriate in all the circumstances, the proceedings stayed as an abuse of process.”^[10]

19. [19]
    In R v Dunning; ex-parte Attorney General (Qld)^[11] Williams JA said:

“It would be contrary to all notions of justice and fairness to say that a pre-trial ruling remained binding even though in the light of circumstances which emerged during the first trial doubts were raised as to the correctness of the ruling.  Where, after the first trial, either the prosecution or defence sought to have a pre-trial ruling re-opened, a judge would have to give consideration to whether or not the change in circumstances warranted a re-opening.  If the change in circumstances warranted a re-opening then ‘special reason’ would exist for doing so.”^[12]

20. [20]
    The question of whether special reasons exist which justify the re-opening of a pre-trial ruling made pursuant to s 590AA will depend upon the circumstances of the particular case.^[13]

21. [21]
    In Baker v The Queen^[14] Gleeson CJ said:

"There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.”^[15]

The trial before Judge Everson

22. [22]
    At the trial the parties seemed to assume that the exclusion of the evidence of sexual intercourse between the defendant and Ms B meant that no reference could be made to the defendant having been in her bedroom at all. This led to a distortion of the evidence.

23. [23]
    For instance, when the defendant gave evidence he said that upon arrival at the unit Ms B went straight to the bathroom. He said that Ms A went to her bedroom. He said that he sat in the lounge room. He said he was not in the lounge room for very long. He was then asked:

“Can you be a bit more precise as to what you mean by ‘not very long’? --- Approximately two minutes

What did you do then?  --- I then walked up the hallway to (Ms A’s) room.”^[16]

24. [24]
    That was an incorrect description of what had occurred because the defendant had gone from the lounge to Ms B’s bedroom before going to Ms A’s bedroom.

25. [25]
    The ruling made by Judge Horneman-Wren SC did not justify the defendant reconstructing his movements within the unit. Mr Boe accepted that he had been responsible for the way in which the evidence was led, which was undoubtedly intended to avoid any reference to the evidence that had been ruled inadmissible.^[17]  Nevertheless this point illustrates the difficulties that arose in the presentation of the case. 

26. [26]
    Another issue that arose related to the removal of the defendant’s clothing. In his evidence-in-chief the defendant said that when he entered Ms A’s bedroom he was wearing only his underwear. Mr Boe then asked “so had you disrobed in the living room?”. The defendant replied “Yes”.^[18]

27. [27]
    The defendant’s evidence conveyed the impression that he had removed his clothing in the lounge room and then gone to Ms A’s bedroom. However when spoken to by the police the following exchange occurred:

“Police Officer:So when you jumped into the bed (with Ms A) did you have to take your clothes off ?

Defendant:I’ve jumped, well I was in my undies already.

Police Officer:Oh

Defendant:Because I, I put my undies on after being with the other girl.”^[19]

28. [28]
    The defendant’s answer “because I, I put my undies on after being with the other girl.” was edited from the recording tendered at the trial.^[20]

29. [29]
    There is an apparent conflict between what the defendant told the police about getting changed after sexual intercourse with Ms B and her evidence. Ms B said that the defendant “put his clothes on in my room before leaving”.^[21]

30. [30]
    These features do not of themselves justify re-opening the ruling made on 7 April 2014; the defence may be conducted differently at the next trial. However these factors do serve to highlight some difficulties that arose from the ruling. In my view the defence erroneously believed that the ruling justified the defendant’s evidence being tailored.

31. [31]
    Moreover the ruling apparently limited the Crown’s ability to test aspects of the defendant’s version of events relating to his movements within the unit and the removal of his clothing. The Crown could have applied to the trial judge for leave to re-open the ruling pursuant to s 590AA(3) Criminal Code.  The conduct of the trial has exposed difficulties stemming from the ruling which in my view justify leave being granted to re-open it. 

Admissibility of the evidence

32. [32]
    In HML v The Queen^[22] Gleeson CJ said:

“The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible.  Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion.  Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered.  Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.  That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability.  The prosecution may set out to establish that an accused had a motive to commit an offence charged.  Motive may rationally affect the assessment of the probability of the existence of one or more of the elements of an offence.  Evidence that tends to establish motive, therefore, may rationally affect such assessment.  If so, it is relevant.  When the prosecution sets out to establish motive, that is often a step in the prosecution case that is not indispensable.  If it is established, motive may support (sometimes powerfully) the prosecution case, but juries are often told that failure to establish motive does not mean the case must fail.”^[23]

33. [33]
    Heydon J said:

“Subject to any exclusionary rule, or to the operation of any discretion to exclude evidence, evidence is admissible either if it is relevant to a fact in issue, or if it is relevant to a fact which is relevant to a fact in issue.  One category of the latter kind is circumstantial evidence, of which uncharged acts evidence is an example.  ‘Facts in issue’ are of two kinds – those which may be called ‘main facts in issue’, and those which may be called ‘subordinate or collateral facts in issue’.  In civil cases the ‘main facts in issue’ are those which are commonly defined by the pleadings or by some other technique of definition, but which, whether so defined or not, are those which the applicable legal principles require to be proved if some cause of action or some defence or some answer to a defence is to be made out.  In criminal cases the ‘main facts in issue’ are those which the prosecution is obliged to prove if guilt is to be established, or which the defence must prove if some positive defence is relied on.  Examples of ‘subordinate or collateral facts in issue’ are those which affect the credibility of a witness, or the admissibility of particular items of evidence.

What, then is ‘relevance’?  Stephen said:

‘The word ‘relevant’ means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non existence of the other.’”^[24]

34. [34]
    The Crown does not seek to lead the evidence as propensity evidence, so the stringent test for admissibility in Pfennig v The Queen^[25] does not need to be satisfied. 

35. [35]
    The point was made by Thomas JA in R v Pettigrew^[26] that:

“Evidence of dealings between human beings cannot be given in a vacuum. Some evidence would be ordinary and unexceptional background detail evidence to render other evidence intelligible.”^[27]

36. [36]
    Evidence may be admitted to make a connected series of events seem intelligible: O'Leary v The King^[28]; R v Goulden.^[29]

37. [37]
    In my view the evidence of sexual intercourse between the defendant and Ms B is an essential part of the narrative of events. Moreover the fact that apparently the defendant did not ejaculate may explain why he was seeking further sexual gratification. The evidence is relevant and admissible.

38. [38]
    The evidence may have been relevant to exclude the possibility that the defendant mistakenly believed he was entering Ms B’s bedroom. Although this was not the basis upon which the trial was conducted, a jury is nevertheless entitled to “work out for themselves a view of the case which did not exactly represent what either party said”.^[30] However, Ms Overell disclaimed reliance on the evidence for this purpose.^[31]

39. [39]
    In any event, the evidence is relevant as forming part of the narrative of events. Whether the evidence is relevant for any other reason will depend upon the issues at the trial.

Discretionary exclusion

40. [40]
    It remains to consider whether the evidence should be excluded in the exercise of discretion. His Honour Judge Horneman-Wren SC held that the prejudicial nature of the evidence outweighed any probative value that it may have had.^[32]

41. [41]
    The evidence may be excluded if it has little or no weight but may be seriously prejudicial: Driscoll v The Queen.^[33]

42. [42]
    In Festa v The Queen^[34] Gleeson CJ said:

“But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused.  It is unfair prejudice that is in question.  Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given.  If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use.  If it were otherwise, probative value would itself be prejudice.  All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.”^[35]

43. [43]
    McHugh J said:

“It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence.  And evidence is not prejudicial merely because its strengthens the prosecution case.  It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”^[36]

44. [44]
    The evidence should be excluded if it is of slight probative value, and is so prejudicial that there is a danger that the jury will misuse it: R v Pettigrew^[37]; R v BCU^[38].

45. [45]
    At the hotel Ms B was flirtatious towards the defendant. He left his friends and accompanied Ms B and Ms A to their unit. The defendant and Ms B engaged in an act of consensual sexual intercourse. In the circumstances it is difficult to see that there is any danger of the jury misusing the evidence in any relevant sense. The evidence should not be excluded in the exercise of discretion.

Conclusion

46. [46]
    I am conscious of the general reluctance to re-open a ruling made pursuant to s 590AA Criminal Code.  However on close examination of the evidence in this case I have concluded that it ought to be admitted.

47. [47]
    I would therefore make the following rulings:

1. Application for leave to re-open pre-trial ruling made on 7 April 2014 granted.
2. The ruling made on 7 April 2014 excluding the evidence relating to the defendant having had sexual intercourse with B, be set aside.
3. Rule that the evidence relating to the defendant having had sexual intercourse with B is admissible.