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R v DOM[2016] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

R v DOM [2016] QDC 118

PARTIES:

R

(respondent)

v

DOM

(defendant/applicant)

FILE NO/S:

TD 140/15

DIVISION:

Criminal

PROCEEDING:

Application under s 590 AA of the Criminal Code

ORIGINATING COURT:

District Court at Toowoomba    

DELIVERED ON:

18 March 2016

DELIVERED AT:

Toowoomba

HEARING DATE:

11 March 2016

JUDGE:

Horneman-Wren SC DCJ

ORDER:

  1. Direct that the respondent provide further and better particulars of counts 7 and 10 on the indictment by 4pm on 23 March 2016.

CATCHWORDS:

CRIMINAL LAW- PROCEDURE- INFORMATION, INDICTMENT OR PRESENTMENT- AVERMENTS-UNCERTAINTY, DUPLICITY AND AMBIGUITY- where application made pursuant to s 590AA of the Criminal Code- whether complaints are adequately particularised- whether joinder of counts/complaints is permissible-whether indictment should be quashed- whether separate trials should be ordered – where charges of a similar character and relevant nexus between charges – where potential cross-admissibility of evidence – where all counts properly joined on indictment – where separate trials not ordered – where two counts inadequately particularised – where prosecution directed to provide further and better particulars.

COUNSEL:

Ms S Petrie for the respondent.

Mr R Davies of counsel for the defendant/applicant.

SOLICITORS:

Officer Director of Public Prosecutions for the respondent.

David Burns Lawyers for the defendant/applicant.

The Indictment

  1. [1]
    There is presently before the Court a 32 count indictment charging the applicant with 23 counts of common assault; 4 counts of assault occasioning bodily harm; and 5 counts of assault occasioning bodily harm while armed. There are four complainants, each of whom were children placed in the care of the applicant. Two of the complainants, P and S, are twins.
  1. [2]
    The seven counts concerning offending against P are alleged to have been committed during various periods between 31 December 1998 and 1 August 2012. The six counts concerning offending against S are alleged to have been committed during various periods between 31 December 1999 and 1 January 2015. Nine counts concern offending against the complainant, K, during various periods between 31 December 1998 and 10 November 2008. Ten counts concern offending against the complainant, A, during various periods between 31 December 1998 and 1 January 2011.

The Application

  1. [3]
    The applicant has made an application to the court, ostensibly under s 590AA of the Criminal Code. Regrettably, there has been a failure to comply with rule 42 of the Criminal Practice Rules 1999 which requires a party applying for a direction or ruling under s 590AA to state in an application the nature of the direction or ruling sought. No application was filed.
  1. [4]
    The nearest there is to a statement of the nature of the direction or ruling sought is in paragraph 2 of the applicant’s submissions. Paragraph 2 is headed “Issues to be resolved at s 590AA” and identifies, at paragraph 2.1, that the following issues require to be determined:
  1. The adequacy of the particulars provided in relation to counts 7, 8, 9 and 10;
  1. What joinder of counts/complaints is permissible;
  1. Whether the current indictment should be quashed pursuant to s 596 of the Criminal Code and/or section 597A with the tried proceeding on a more limited basis.
  1. [5]
    The issue for determination identified at paragraph 2.1(c) may seek a ruling or direction in relation to the quashing of the indictment as contemplated by s 590AA(2)(a). However, paragraph 5.6 of the applicant’s substantive submissions states that the applicant “seeks to quash the indictment pursuant to s 596(1) of the Criminal Code”. Paragraph 5.7 asserts ‘further and in the alternative[1] that the applicant “may be prejudiced or embarrassed  in his (sic) defence by virtue of the Crown’s current proposed joinder of all counts”. Paragraph 5.8 refers to “the basis for the applications under s 596(1)and 597A”.
  1. [6]
    I make these observations not out of any desire to be pedantic. Rather, to stress the importance of compliance with procedural requirements intended to inform the court of the precise relief sought.
  1. [7]
    An application for a direction or a ruling under s 590AA in relation to the quashing of the indictment may be something quite different to an application under s 596 itself for the quashing of the indictment. An application under s 596(1) does not require any recourse to the power of the court under s 590AA because s 596 itself permits the accused to apply to the court under that provision. This might be contrasted to any relief sought under s 597A. Section 597A permits the court to order separate trials, but does not itself provide the mechanism to apply to the court for that relief.
  1. [8]
    The, at least potential, distinction between an application in relation to the quashing or staying of an indictment under s 590AA, and an application to quash an indictment under s 596 was adverted to in an early decision on the then s 592A of the Code in R v Gesa and Nona; ex parte Attorney-General[2] where the court said:

“The power to make rulings “in relation to … the quashing or staying of the indictment” is not merely a power to quash or stay an indictment. Before this section was enacted a court could quash or stay an indictment. It includes a power to make rulings on a question of law the consequence of which, if decided one way, would justify an application to quash or stay an indictment; such a ruling would be one in relation to the quashing or staying of the indictment. More broadly, the power to make rulings “in relation to …  deciding questions of law” includes a power to make rulings which, if decided one way, will result in termination of the proceedings before trial by means other than quashing or staying the indictment. The section should not be given a narrow interpretation.” [emphasis added]

  1. [9]
    This passage demonstrates why clarity is required in stating the nature of the direction or ruling sought under s 590AA, particularly if it is in relation to the quashing of an indictment.
  1. [10]
    Another reason for clarity in this regard is illustrated by this application.
  1. [11]
    In the course of the hearing I was taken by counsel for the applicant, without objection, to a statement to police of one of the complainants. Reference was also made to a document handed up by counsel for the applicant, again without objection, which provided an analysis of evidence referable to 4 counts on the indictment as contained in various statements made by each of the complainants. The court also had been provided with a folder of depositions and the applicant’s outline listed among the materials to be relied upon ‘Depositions (to be supplied by the Crown)”. A document titled “Schedule of Facts” had also been provided which seems to be a summary of the evidence in respect of each count extracted from the statement of the complainants.
  1. [12]
    On an application for pre-trial rulings under s 590AA all that might be entirely appropriate. However, insofar as the application was one to quash the indictment under s 596 it is impermissible for the judge to look beyond the indictment to the depositions or statements except where the motion to quash is on the ground that the offence charged on the indictment is not disclosed by the depositions or statements, and there has been no committal for trial of that offence.[3] Any application under s 596 in this matter is not upon that ground.

Particulars

  1. [13]
    The applicant complains that five counts on the indictment are insufficiently particularised. Two of the counts, counts 7 and 10, the applicant says are duplicitous. She submits the Crown should be invited to discontinue those counts and that if they are not discontinued they should be stayed by the court. Again, that submission rather highlights the difficulties which arise from an imprecise statement of the nature of the direction or ruling sought. It is not at all clear whether the court is being asked to issue an invitation to discontinue (any legal basis for the court to do so is not immediately apparent) a refusal of which might lead to some further application, or whether the court is being asked to stay those counts on this application.
  1. [14]
    As to counts 4, 8 and 9, the applicant says that further particulars providing greater specificity should be ordered.
  1. [15]
    The Crown concedes that counts 7 and 10 are insufficiently particularised and that it ought to be ordered to provide further and better particulars, but that the counts should not be stayed.[4]  Perhaps implicit in this is a refusal, or anticipatory refusal, of the invitation which the applicant may be seeking the court to issue.
  1. [16]
    Count 7 is a count of common assault of S. It is alleged to have occurred on an unknown date in the two year period between 31 December 2000 and 1 January 2003, when S was aged four or five. The particulars presently provided are:

“On the date alleged in the indictment the defendant dunked S’s head into a bucket of water.”

  1. [17]
    The Schedule sets out these facts in respect of count 7:

“The complainant S came home from day-care from Middle Ridge State School.  She cannot recall what she was in trouble for.  The defendant held S upside down by her body and legs and had her head dunked in a bucket of water in laundry.  She was dunked three to four times plus.”

  1. [18]
    The Crown submits that although inadequately particularised the charges in relation to this count are sufficiently identifiable because the incident is tied to a day when S had been to day-care.
  1. [19]
    In my view, tying the incident to a day when S had been at day-care may not sufficiently identify the charge. The statement of the witness says:

“I remember that this same thing happened basically whenever I did something naughty.  It happened quite a few times and the last time I recall it happening was when I was about six years old.  It only happened at 5 Gunn Street but sometimes it was also in the bath tub.”[5]

  1. [20]
    Therefore, if evidence is given in accordance with that statement, potentially, there are many such incidents of the kind described which occurred during the two year period alleged. Furthermore, it is not at all clear that a reference to it being a day when the child attended day-care in any way assists in identifying the particular occasion, and in distinguishing it from others.
  1. [21]
    In R v S[6], Mackenzie J observed that the first aspect of the need for particularity is to eliminate the risk of duplicity.  His Honour said:

“The occasion on which the offences alleged to have occurred must be sufficiently identified so that it may be differentiated by the jury as a specific event upon which they must focus.  There must ultimately be adequate directions that the jury must be satisfied beyond reasonable doubt of guilt of that particular offence and no other and as to the use which may be made of evidence of other particularised acts of the same character in the process of reaching the verdict.”

  1. [22]
    His Honour went on[7] to refer to what he described as “a general statement of what is necessary to achieve the minimum requirement of particularity” as stated by Dowsett J in R v Rogers.[8]  Dowsett J had said:

“In general, as a minimum requirement, it is necessary for there to be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence.  I cannot see how there can be a trial in the absence of that degree of particularity.  Of course, this requirement does not exclude multiple charges of substantially similar events, provided the evidence demonstrates separate, identifiable transactions which can be related to counts in the indictment.”

  1. [23]
    Dowsett J had gone on to observe that in cases involving complainants who are very young, as is the case here, it may be very difficult for the complainant to give particulars of dates, and that a specified period may be sufficient, noting however that the longer the period the less satisfactory is the degree of particularity offered.
  1. [24]
    In R v Rogers, Fitzgerald P observed that “circumstances might be so common place as to fail entirely to provide any useful, distinguishing information”.
  1. [25]
    In R v S, Mackenzie J also referred to the judgment of Lee J in R v K.[9]  In K Lee J said that designating an occasion upon which an act of sex was alleged to have occur as being “the first occasion” was “not sufficient particularisation because it does not enable the incident to be identified by referring to any objective external fact or event.
  1. [26]
    In my view, the complainant’s attendance at day-care is not the kind of external fact or event reference to which would facilitate identification of the occasion on which the charged acts occurred. S’s statement that “I had come back from day-care.  I remember that it was the Middle Ridge Day-care centre” does not exclude other of the incidents of similar conduct having also occurred after she attended day-care.  Her attendance at day-care is more likely to have been the kind of common place circumstance that Fitzgerald P referred to as failing entirely to provide any useful common distinguishing information.
  1. [27]
    Count 10 suffers from the same deficiencies. It is a charge of assault occasioning bodily harm while armed. It is alleged to have occurred in the one year period between 28 January 2004 and 30 January 2005.
  1. [28]
    The particulars provided are:

“On the date alleged on the indictment the defendant hit S on her head with a bush.  The complainant sustained swelling to her head.”

  1. [29]
    Notwithstanding the particulars referring to a hit to the head, the Schedule of Facts recites:

“The complainant was hit “everywhere” on her body with her hair brush – arm, head, fingers, ankle, legs.  She went to school after this with eggs on her head.”

  1. [30]
    S’s evidence as set out in her statement to police suggests of other occasions from which this occasion might not be distinguishable. She refers to the applicant having hit her at “other times” with “things” she had mentioned. So an assault with a hair brush may not, of itself, distinguish the occasions. Neither may the nature of the injuries. S says in her statement:

I always had bruises from her hitting me.  I had bruises on my hands, arms, ankles, legs, I also remember huge eggs on my head. She would often say that if anyone ever asks us what happened that we were to say we fell over or something similar.”[10] [emphasis added]

  1. [31]
    The Crown submits that the charges in relation to count 10 are sufficiently identifiable because they are “tied to the time when she went to school with eggs on her head”.  However, the analysis which I have set out demonstrates that this may not be a distinguishing fact or event.
  1. [32]
    In my opinion, count 7 and 10 are not sufficiently particularised. The particulars presently provided, even when read with the Schedule of Facts, do not identify a transaction which would permit the applicant to properly defend herself against them. They do not sufficiently identify the occasion on which the offences are alleged to have occurred so they may be differentiated by the jury as a specific event upon which it must focus, distinguishable from any other similar incidents which may be suggested by the evidence.
  1. [33]
    It cannot, however, be excluded at this time that the prosecution will not be able to better particularise those counts. That may require the taking of a further statement which would be provided to the defence. This is not a case in which the evidence of the complainants has been pre-recorded such that one would know definitively what the state of the evidence at trial would be.[11]
  1. [34]
    In my view, the prosecution should be allowed an opportunity to provide better particulars. Given that the trial is listed as the second trial in the sittings commencing 29 March 2016, that opportunity should be limited. If the prosecution is unable to provide any better particulars, or the particulars provided are still considered inadequate by the defence, the matter may be revisited at the trial.
  1. [35]
    Counts 4, 8 and 9 do not suffer from those deficiencies which attend counts 7 and 10.
  1. [36]
    Count 4 is an assault of P occasioning bodily harm to him. The main complaint of the applicant is in regard to the period during which it is said to have occurred; five years between 31 December 2004 and 1 January 2010. P would have been between seven and twelve years old.
  1. [37]
    The particulars provided are:

“On the date alleged on the indictment the defendant pushed P into a shelving unit.  The complainant sustained an injury to his cheek which amounted to bodily harm.”

  1. [38]
    Additionally, the Statement of Facts recites:

Gunn Street - Toowoomba.

The complainant was again in bed making noises.  The defendant came in with a wooden spoon, put it on the bed, pulled him out of bed and attacked him with her hands and feet, pushing, slapping and kicking.  The complainant was pushed into a shelving unit, the corner of which pierced his cheek and caused bleeding and an eventual scar.”

  1. [39]
    Although the breadth of the period alleged results in the degree of particularity being less satisfactory than if the period were to be further narrowed, I am not persuaded that the period is simply too wide, particularly given the complainant’s age at the time. I am not persuaded that it renders the particulars insufficient for the purpose of the administration of justice, and for the applicant to make a proper defence.[12]  The Schedule of Facts sets out such particular conduct that the applicant may not be much assisted by that conduct being alleged to have occurred in some shorter period of time.  It is unlikely that in respect of such offending said to have occurred in a domestic context, that defences such as alibi, which may have been open had the period been narrower would be denied to the applicant. 
  1. [40]
    I would not order further particulars of count 4.
  1. [41]
    Counts 8 and 9 arise from the same events. Each is a charge of common assault, count 8 against S and count 9 against P.
  1. [42]
    The particulars for each are as follows:

“Count 8 – On the date alleged on the indictment the defendant held S’s head under the water in a bath.

Count 9 – On the date alleged on the indictment the defendant held P’s head under the water in a bath.”

  1. [43]
    The Schedule of Facts contains the following:

Gunn Street – Toowoomba

The complainant children P and S both had their heads held under the water during a bath at the same time.”

  1. [44]
    The charges arise from the following statement made by S to Police:

“I know this because one time I was in the bath with P and I saw she held both our heads under the water at the same time.”[13]

  1. [45]
    It seems P made no statement to Police about this alleged incident.
  1. [46]
    There is no issue with duplicity as there is no suggestion in S’s statement to Police that there was any other occasion upon which both she and P had their heads held under water by the applicant when they were being bathed together.
  1. [47]
    Mr Davies of counsel, who appeared for the applicant on the application, points to the fact that the offences are alleged to have occurred during such a routine occurrence as bathing the children, in the context of the period having been defined as six years between 31 December 1999 and 30 January 2007. He submits that a bath is too routine a domestic occurrence to enable the applicant to properly defend the allegation. However, unlike counts 7 and 10, this is not an allegation which, on the depositions, could be referring to any number of occasions. Whilst a bath itself is a routine domestic event, there is a singular allegation that during one such routine occurrence a quite specific event (or events) constituting the two counts occurred.
  1. [48]
    Notwithstanding the lack of particularity as to the date, I consider that the charged acts are reasonably sufficient for the administration of justice and for the applicant to make a proper defence. There is a unique allegation that on some occasion she held the heads of two children under water whilst bathing them.
  1. [49]
    As Dowsett J pointed out in R v Rogers, the less satisfactory the particulars the greater the importance for an adequate direction to be given to the jury as to the difficulties created for the accused in answering the charges and the need for care in scrutinising the Crown case.  That may no doubt extend to noting the absence of evidence from P of such an event; if that be the state of the evidence at the trial.  I am of the view that appropriate directions could be given. 
  1. [50]
    I would not order further or better particulars of those counts.

Joinder and Severance

  1. [51]
    The applicant seeks to quash the indictment under s 596(1) of the Criminal Code on the ground that she may be prejudiced or embarrassed in her defence by virtue of the joinder of all counts.  The applicant’s concession that the counts concerning P and S might be tried together, and that those concerning K and A might be tried together, acknowledges that some joinder of the charges on the indictment is permissible.
  1. [52]
    Section 567(2) of the Criminal Code permits joinder of charges in the same indictment if those charges form part of a series of offences of the same or similar character.  In R v Cranston[14] Macrossan J, as his Honour then was, discussed the requirement for there to be a series of offences of a similar character.  His Honour observed, applying Ludlow v Metropolitan Police Commissioner,[15] that there was a requirement for a nexus between the offences, which was additional to the requirement that they be of similar character, before they could be described as a series.  His Honour considered that this called

“for the administration of a test in which time, place and other circumstances of the offences as well as their legal character or category are all factors which are considered for the purposes of seeing whether the necessary features of similarity and connection are present.”

  1. [53]
    In my view, the charges here are of a similar character, and there is a nexus between them.
  1. [54]
    The charges are all assaults, so at that level there are of a similar character. Beyond that, however, they are all assaults against children in the care of the applicant. As between the complainants, there is some overlapping in time and place. There is also considerable similarity in the nature and circumstances of the conduct. There are counts relating to the dunking of each of the four complainants’ heads under water. There are cuts to, or threats to cut, the fingers or hand of each of three complainants. There are charges involving the applicant hitting the face or head of both S and K. There are charges involving the applicant pulling K by her hair and dragging A by her hair.
  1. [55]
    There may, therefore, be considerable cross-admissibility of evidence. Such cross- admissibility would establish a series for the purpose of s 567.[16]
  1. [56]
    In my view, all of the charges were permissibly included on the indictment.
  1. [57]
    The issue then becomes whether the indictment should be severed and separate trials directed in exercise for the discretion under s 597A of the Criminal Code. Section 597A permits separate trials to be directed if the Court is of the opinion that the accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence on the indictment.
  1. [58]
    The applicant submits that she will be prejudiced or embarrassed in her defence because there are 32 counts concerning four complainants over a period that spans 11 years. The complaints are historical and the number of allegations and alleged child victims will unfairly suggest a disposition to offend and create significant prejudice which is avoidable.
  1. [59]
    The applicant, rightly, identifies that the prohibition on the Court when considering potential prejudice or embarrassment from having regard to the possibility that similar fact evidence which is more probative than potentially prejudicial may be the result of collusion, which s 597(1AA) imposes in trials concerning offences of a sexual nature, does not apply here. She submits that the risk of collusion amongst the four complainants is real and obvious.[17]  Implicit in this submission is a recognition that there may well be similar fact evidence admissible because its probative value outweighs its potential prejudicial effect.  Mr Davies made certain concessions in that regard in the course of argument given the similarity in some of the allegations.
  1. [60]
    The Crown submits that there is striking similarity between some of the offending, and also some uncharged matters, such that the evidence would be admissible as similar fact evidence.
  1. [61]
    In R v MAP[18] Keane JA (as his Honour then was) observed that in Hoch v the Queen,[19] Mason CJ, Wilson and Gaudrion JJ had stated the basis for the admission of evidence of similar misconduct on the part of the accused:

“lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, it accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged.”

  1. [62]
    In my view, it is likely the evidence of a complainant who says that the applicant has treated him or her in a particular way will be admissible as similar fact evidence and proof of charges relating to other complainants concerning very similar treatment in similar circumstances such as for discipline. This will be so even if the indictment were to be severed as sought by the defence so that there were only two complainants in each trial.
  1. [63]
    Whilst the opportunity for there to have been collusion between complainants is real, it will still exist as between two complainants, perhaps even more so. Appropriate jury directions would still have to be given. The standard Benchbook direction to the jury would include that:

“You must look at all the evidence to see if the prosecution proved its case on each charge against each complainant, and you must be satisfied that the evidence of each complainant is credible and reliable before you can use that complainant’s evidence in anyway.  In considering that, you must be satisfied that the evidence of each of the complainants is independent, and I direct that you cannot use the evidence of the complainants in combination unless you are satisfied that there is no real risk the evidence is un true by reason of concoction.  The value of any combination, and likewise any strength in numbers, is completely worthless if there is any real risk that what the complainant said is untrue by reason of concoction by them.  You must be satisfied that there is no real risk of concoction; a real risk is one based on the evidence, not one that is fanciful or theoretical.”

  1. [64]
    In my view, any potential prejudice to the applicant can be addressed by appropriate directions to the jury.
  1. [65]
    For these reasons, I would not direct separate trials for the counts concerning the complainants P and S and those concerning the complainants K and A.

Disposition

  1. [66]
    It will be directed that the prosecution provide further and better particulars of counts 7 and 10 on the indictment by 4pm on 23 March 2016.
  1. [67]
    The application is otherwise refused.

Footnotes

[1] If the indictment were to be quashed, there could be no further relief under s 597A.

[2] [2001] 2 Qd R 72 at [15].

[3] R v Crawford (1989) 2 Qd R 443 at 445; Connelly v DPP [1964] AC 1254; R v Chairman, County of London Quarter Sessions; ex parte Downes [1954] 1 Q B 1, R v Jones and Ors (1974 Cr App R 120.

[4] Respondent’s outline of submissions, para 2.3 and 3.2.

[5] Statement of S 13 June 2014, para 13.

[6] [2000] 1 Qd R 445 at [14].

[7] At [21].

[8] CA 445/ 1997, 17/1998, Court of Appeal, 6 May 1998, unreported.

[9] CA 64/1998, Court of Appeal, 23 June 1998, unreported.

[10] Statement of S 11 June 2014, paras 31 to 32.

[11] Although the complainants were children at the times at which the alleged offences were committed, they are now adults so their evidence has not been recorded under s 21AK of the Evidence Act 1977.

[12] See R v Rogers per Dowsett J as cited with approval by Mackenzie J in R v S in [21].

[13] Statement of S 13 June 2014, para 20.

[14] [1988] 1 Qd R 159 at 164; see also R v Beck and Smith [1983] 10A Crim R 168 at 174.

[15] [1971] AC 29.

[16] See R v MAP [2006] QCA 220 per Keane JA at [37].

[17] The submissions of the applicant refer to the complainants “four adopted siblings”.  That is an inaccurate description and may overstate the nature of the relationship between them.  Nonetheless, the submission is to the potential for collusion is not diminished by this. 

[18] [2006] QCA 220 at [41].

[19] [1988] 165 CLR 292 at 294.

Close

Editorial Notes

  • Published Case Name:

    R v DOM

  • Shortened Case Name:

    R v DOM

  • MNC:

    [2016] QDC 118

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    18 Mar 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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