Watson v The Queen[2015] QDC 347

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   The applicant has been charged with 11 offences of sexual misconduct against four complainants. The charges have all been joined in the one indictment. He seeks orders for four separate trials – a separate trial for all charges against each separate complainant. The application is opposed by the Crown.

BACKGROUND

2. [2]
   The applicant was at all relevant times a grade five teacher at a State School in Maryborough. Each of the complainants was a female student in his class – the first complainant in 2012, the second complainant (who is the sister of the first complainant) and the third complainant in 2013, and the fourth complainant in 2014. Necessarily each child was about the same age, 10 years of age, at the time of the alleged offending.

3. [3]
   Each alleges unlawful sexual conduct taking place during school time only, generally in the classroom, library or computer room at the school. Each alleges the misconduct involved only touching. There is no suggestion of penile contact, of masturbation, nor of oral sex, features which commonly arise in matters of this sort. Only one, the second complainant, alleges touching was under any clothes and she says the touching was under her pants, but outside her underpants. Whilst the two sisters, the first and second complainants, allege he touched them on their vagina on the outside of their clothing, each of the first, third and fourth complainants say he touched their bottoms. Each alleges he touched them more than once, although there is only one charge in relation to the second complainant. He is charged not only with four counts of indecent treatment but also one count of maintaining with respect to the first complainant. Each of the first, second and third complainants say he on occasions gave them money to spend at the school tuckshop. The mother of the fourth complainant, who was the first to make a complaint against the applicant, says that she received gifts, such as teddy bears and headphones, from the applicant. Each says the incidents happened when they and the applicant were alone, except that the third complainant says that count 7 occurred when she and the second complainant were together in the room and he asked them for a hug. She alleges that as he did this he stroked her bottom.

4. [4]
   Counts 3 and 5 involving the first complainant, counts 7, 8 and 9 involving the third complainant and counts 10 and 11 involving the fourth complainant relate only to an allegation that he touched the complainants’ bottoms, on the outside of clothing, whilst counts 2 and 4 involving the first complainant relate to his touching both her vagina and buttocks on the outside of her clothing. Count 1 of maintaining a sexual relationship with the first complainant involves those allegations – of touching her vagina and buttocks on the outside of her clothes, or her buttocks alone – by the applicant regularly over the course of the year she was his student.

5. [5]
   Although the second complainant complains of inappropriate conduct on about five or six occasions, the only specific example she gave was of an occasion when she was asked by the applicant to remain in class after other students had left. He asked her to crouch on her hands and knees on the floor. When she did so he put his hand down her pants, and touched her vagina, though still on the outside of her underwear.

THE STATUTE

6. [6]
   Section 567 of the Criminal Code provides that charges may be joined on the one indictment if:

“… those charges are founded on the same facts or are, or from 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.”

7. [7]
   Under s 597A(1) the court may order separate trials if it’s of the 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.”

SUBMISSIONS

8. [8]
   The parties both accept that in considering the discretion under s 597A, a court must not have regard to the possibility that similar fact evidence may be the result of collusion.

9. [9]
   The central issue in such matters has been said to be determination of the question of whether the evidence of a complainant is admissible as similar fact evidence in the case against other complainants. In R v MAP [2006] QCA 220 at para [37], Keane JA, as he then was, stated:

“If the evidence of each complainant was admissible on the charge relating to the incident alleged by the other complainant, then the offences charged against the appellant would form a series for the purposes of s 567 of the Criminal Code. If that evidence were not admissible, then there would not be a series of offences, and, furthermore, the appellant would have been unduly prejudiced in his defence within the meaning of s 597A of the Criminal Code.”

10. [10]
    So to in De Jesus v The Queen (1986) 68 ALR 1, the court held that charges should not be tried together if evidence on one count is not admissible on another count.

11. [11]
    The Crown submitted that in this case the evidence in respect of each count is cross-admissible because the evidence amounts to similar fact evidence.

12. [12]
    She submitted that the similar fact evidence here does more than demonstrate a propensity to behave in a certain way. She submitted a high threshold has been reached – that is, the evidence has strong probative force through a specific connection with the commission of the offences charged because there is no rational view of the evidence consistent with the innocence of the accused in the context of the prosecution case (see Pfennig v The Queen (1995) 182 CLR 461 at 481, 483 – 485).

13. [13]
    By contrast, the applicant’s counsel submitted that any similarity in the evidence of the four complainants was entirely unremarkable and the high probative value required is not made out. He submitted that in the circumstances the evidence of each complainant is irrelevant to the trials relating to the other complainants and that a failure to order separate trials would prejudice the applicant.

THE CASES

14. [14]
    In Phillips v The Queen (2006) 225 CLR 303 the Court in a joint judgment said at p 327:

“Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused’s character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided.”

15. [15]
    Earlier in the same case the Court, at page 308 said:

“Since at least 1995 it has generally been thought that the admissibility of similar fact evidence depends on the test stated in Pfennig v The Queen [supra]: it is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused.”

16. [16]
    Subsequently at page 320, the Court said:

“Reliance was placed on the following statement in Pfennig v The Queen [supra]:

‘[S]triking 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.’

Despite that passage, and despite the reformulation of the tests stated in Pfennig v The Queen in R v O'Keefe, neither of those cases departed from a 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’.”

17. [17]
    In Pfennig v The Queen (supra) Mason CJ, Deane and Dawson JJ at 481 said:

“In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.”

CONSIDERATION

18. [18]
    In my view, the similarity of the offending against each of the complainants in this case means that that the probative effect of the evidence is strong. That strength, to adopt the words used by their Honours at page 482 of Pfennig lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

19. [19]
    In coming to this conclusion I am particularly influenced by the following features of the case:

1. All complaints were by female students who were taught by the applicant in their Grade 5 year. No male student has made any similar allegation, suggesting that any assertion that the touchings were an “accident” is inherently improbable, as a matter of common sense.

2. All involved touching inside school buildings where teaching activities habitually took place. There is no suggestion that any such activities occurred in the open, for example, during sports events or during activities outside normal school hours.

3. Only the applicant and the student were present, except on one occasion when only two students were in the room.

4. Unusually, the applicant’s conduct towards each complainant did not progress beyond touching on the outside of their clothing, generally in the area of the bottom but in respect of two of the complainants in the area of the vagina.

5. Unusually, the teacher gave money to three of the complainants on occasions, though not necessarily directly related to the alleged incidents, and in respect of the fourth complainant, gave her gifts.

20. [20]
    Those features of the evidence cause me to conclude that the charges arise from both a series of offences of the same or similar character and also in the prosecution of a single purpose, that is the sexual gratification of the applicant from moderately low level touching (if that can be an appropriate description for a teacher indecently touching students) on the outside of the complainants’ clothes, without more serious or overt acts of sexual indecency.

21. [21]
    There were aspects of all of the offences which reveal a striking similarity, pattern or unusual features. That the offending was not identical in each case does not in my view detract from the probative force of the similarity of the offending. To adopt a submission of the Crown Prosecutor, “[o]ut of all the variety of allegations that could be made it is the combination of features described by all complainants that makes this evidence of strong probative value.”

22. [22]
    In my view, the evidence of each complainant does significantly more than merely establish the applicant’s general propensity for inappropriate conduct. The connection between the evidence of each of the complainants must, in my view, have “a really material bearing on the issues to be decided” and supports an inference that the applicant was guilty of the offences charged (see HML v The Queen (2008) 235 CLR 334 at 108).

23. [23]
    In making the determination I have, I should indicate that I am conscious of the comments of Macrossan J, as his Honour then was, in R v Cranston (1988) 1 Qd R 159 at 164 where he warned that it is necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character. In my view, the facts of this case justify a determination that all eleven matters be heard together.

ORDER

24. [24]
    The application is refused.