DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the Crown pursuant to s 590AA of the Code to lead evidence of LR at RR’s trial relating of a charge relating to the complainant ER.

2. [2]
   The basis of the Crown application is that the evidence of LR has strong probative force such that it should be admitted under the principles expressed by the High Court in Pfennig v R (1995) 182 CLR 461.

3. [3]
   LR is ER’s mother. The possibility of collusion between them is an irrelevant consideration (s 132A Evidence Act 1977 (Q)).

The evidence

4. [4]
   The complainant ER is the defendant's grandniece. She was born in November 1998 and was about 8 or 9 at the time of the alleged offence.

5. [5]
   The defendant is charged with indecently dealing with her on a date unknown between 30 June 2006 and 1February 2007.

6. [6]
   In 2011 ER was playing up at school. She was asked why she was playing up by a family friend. The complainant alleged that the defendant raped her.

7. [7]
   The complainant provided a s 93A statement to the police on 27 February 2011. She told the police that “a couple of years ago” she was asleep with her cousins M, N, M and her little brother. The defendant and his girlfriend A were asleep on the sofa bed. The defendant then started feeling her legs all the way up to her private. The next morning, he talked to her about how dogs had sex (T2.49).

8. [8]
   She further alleged that there was a dirty movie on late night TV. The defendant came over, pulled the blanket off her, was feeling her legs up all the way to her private on each side of her legs, then she moved and he went back to sleep (T4.15).

9. [9]
   She later described him feeling her from her toes all the way up her legs to her private (T16).

10. [10]
    She thought she was in grade 4 or 5 at the time – about five or six years prior (T8). She later said she thought she was in grade 4 when it happened (T11).

11. [11]
    She said later that he tried to pull her shorts down (T13.11). She would not let him touch her inside her clothing (T13.30). She said he said “sshh” to her. He was on the bed with her for about 20 minutes, trying to get to her private (T15).

12. [12]
    No doubt as a consequence of the investigation, LR provided a statement dated 4 August 2012. She alleges that when she was a little girl, about 12 to 13 years of age (this would have been in about 1980), she recalled one night when all of the girls were sleeping in the front room of the defendant’s house when the defendant came in. The defendant lifted the blanket up, put his hand under the blanket and moved his hand onto her inner thigh and then up her leg towards her private part. She had shorts on. She immediately got up and asked, “What are you doing in here?” He slapped her across the face, whispering, “Don’t you tell no-one.” This really hurt. She got up, ran out the door and told her mother.

Submissions

13. [13]
    The Crown submits that the disputed evidence is admissible as similar fact evidence relying on the principles expressed in Pfennig v R (supra).

14. [14]
    The Crown in written submissions relied on the following similarities between the charged event and the uncharged act, namely:

1. (a)
   The conduct i.e. running a hand up the legs towards the private part under a blanket but outside the clothes;

2. (b)
   Both victims were female children in their early teenage years;

3. (c)
   Both victims were members of the defendant's extended family;

4. (d)
   Both sets of conduct occurred at night;

5. (e)
   Both victims were asleep in a room in which the other children were sleeping.

15. [15]
    In oral submissions the defence conceded that there was no issue as to accident or mistake at the trial. The only issue is whether the event occurred. Hence the evidence from LR is not admissible to rebut such a defence (such as in R v WAH [2009] QCA 263 at [40]).

16. [16]
    In oral submissions the crown submitted that R v R [1997] QCA 277 and Phillips v R (2006) 225 CLR 303 were different factually.

17. [17]
    It was conceded the fact the complainants were female and from an extended family was not remarkable. It was the conduct and the circumstances of the conduct which were sufficiently remarkable. It was conceded the fact the conduct was 30 years apart provided it less probative force.

18. [18]
    The defence on the other hand submits that there is no hallmark which renders the conduct strikingly similar such that it is has particular probative force.

19. [19]
    The defence submits that:

1. (a)
   There are a number of dissimilarities between the 2 offences.

2. (b)
   One occurred about 30 years before the other.

3. (c)
   They occurred at different locations.

4. (d)
   The fact that both females were young is not overly probative.

5. (e)
   The fact they were in the same family is not overly probative.

6. (f)
   The offences represent opportunistic offending rather than strikingly similar acts with a hallmark.

7. (g)
   There was no violence occasioned to ER.

8. (h)
   Accident does not arise in this case.

20. [20]
    In oral submissions the defence submitted that there nothing peculiar or remarkable as to the events. The defence indeed submitted there was a difference between running the hands up both legs on the side from the toes as compared to a touching from the inner thigh. It also relied on the fact there was no slap concerning ER.

Discussion

21. [21]
    In reaching my decision, I have applied the statements of principle expressed in Pfennig v R (supra). It may be said that propensity evidence which merely shows that the accused is of bad disposition has no other relevance and should not be received into evidence. Such evidence will however be admissible where its probative value in connection with the offence charged is sufficiently high. To be admitted into evidence the evidence of propensity must have a specific connection with the commission of the offence charged, a connection which may arise from the fact that the evidence gives significant cogency to the prosecution case or some aspects of it. The evidence will only be admissible if, when taken with the other evidence, there is no reasonable view of the evidence which is consistent with the innocence of the accused.

22. [22]
    In Phillips v R (2006) 225 CLR 303, the court at [54] noted:

“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’. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’”

23. [23]
    It was held at [56] that the similarities relied on were not merely striking; they were entirely unremarkable. It was further noted at [58]:

“There was no dispute about the absence of striking similarity, unusual features, underlying unity, system, pattern or signature. Although none of these features is necessary for admissibility, the high probative value required in order to overcome the prejudicial effect of the evidence was not shown to exist for any other reason. …”

24. [24]
    The above principles were applied in R v MAP [2006] QCA 220. It was noted at [43] that usually to achieve the strong degree of probative force the facts would need to be strikingly similar.

25. [25]
    In R v R [1997] QCA 277, in finding that there had been improper joinder, Dowsett J held:

“Although some of the offences were committed when more than one child was present, there is no basis for inferring that it was the appellant's preferred mode of operation. Rather, it seems that he merely took advantage of opportunities as they arose. There is no indication that he tried to arrange for other children to be present whilst he was committing a particular offence.

…

The ‘striking similarity’ test is one way in which evidence of other criminal conduct may acquire the compelling probative effect to which reference is made in Pfennig. The test will not be satisfied by strenuous attempts to find anything which might possibly be described as being a relevant similarity in the hope that the accumulation of a sufficient number of them will lead to a tipping of the balance in favour of admissibility. Similarity, by itself, is not enough. The similarity must be capable of proving some aspect of the offence charged. In this case, the striking similarity was said to demonstrate the unlikelihood of all complainants making similar complaints. On the evidence, this man certainly took advantage of opportunities as they presented themselves, but the conduct with Luke was not strikingly similar to that with Jessica or that with Naomi. All involved sexual misconduct, but that is not enough.”

26. [26]
    In this particular case, I note that the hand was on the inner thigh moving up the bare leg towards the private part of LR. On the other hand ER’s description is one where both hands were moving on the outside of the legs from the toes. I also note that in ER’s case there was an attempt to take off the shorts, not so on LR although of course LR got up when discovered the behaviour occurring. In addition one crucial fact which occurred in LR’s case is that there was the slapping across the face, a fact absent in the matter of ER. Another fact to be taken into account is the allegation involving LR occurred sometime in 1980, whereas the one involving ER occurred sometime in 2002/2003. The incidents are far removed from each other in terms of time. Their ages were different.

27. [27]
    It does not seem to me there is any matter strikingly similar between the two events. It seems to me that there are a number of dissimilarities.

28. [28]
    In the circumstances, it is my determination that there is no feature sufficiently remarkable in the evidence of LR which provides such probative force necessary to render it admissible on the trial concerning the count involving ER.

29. [29]
    By way of example in R v WAH [2009] QCA 263, the similar feature which lead to admissibility was the distinctly curious behaviour of licking his fingers or thumb after the act in question.

30. [30]
    In the circumstances, having taken into account all of the submissions and the evidence provided, it is my determination that the evidence of LR should not be led on the trial involving ER.