R v Cooper[2015] QDCPR 3

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defence pursuant to 590AA of the Criminal Code 1899 (Q) for separate trials to be ordered with regard to the different complainants.

2. [2]
   Mr Cooper is charged with 11 different counts. The first three counts relate to a complainant, JL. Those offences occurred between the 30^th of September 1984 and 22^nd November 1986 at Beaudesert. The next group of offences, counts 4 through to 11, are offences involving a complainant, MH, which occurred between 14^th April 1985 and 4^th October 1987, also at Beaudesert. The final count relates to a complainant, AB, a boy under the age of 16, which offence occurred between 4^th August 1985 and 21 November 1987 at Beaudesert.
3. [3]
   The applicant defendant submits that the charges are not joinable under section 567 of the Criminal Code or, alternatively, in the exercise of the court’s discretion, under 597A, severance should be ordered. I have read both the applicant’s submissions and the Crown’s submissions in detail. The Crown prosecutor, Mr Whitbread, has produced a summary of facts concerning the matter. As to count 1, JL was in cottage 2. He had only been in BoysTown for a few months. He was in the repair shed attached to the laundry. The defendant was standing behind him whilst JL was working on a bike. The defendant was telling him what to do. The defendant rubbed JL’s backside with his hand for a few seconds.
4. [4]
   Count 2 relates to another incident involving the repair shed. JL was the last boy in the shed. As the defendant walked past him, he groped JL’s groin region and testicles. Count 3 relates to the Outbound camp. Outbound was a rural property owned by BoysTown. JL went on three of these camps and, on each one, he was groped in the groin region.
5. [5]
   The allegations involving MH are quite different. Count 4 relates to assault occasioning bodily harm. It is alleged the defendant kicked MH, caused him to come off his bike, and then got up and abused him and grabbed him, calling him a piece of shit and then pulled him into a cell. Count 5, assault occasioning bodily harm whilst armed, involves zapping MH with a cattle prod on the legs, backside and on the genital area. Count 6, assault occasioning bodily harm whilst armed is another zap to the backside area with a cattle prod. Count 7, assault occasioning bodily harm- they were hay baling, there was verbal abuse, and king hitting MH with a poly pipe, causing bruising.
6. [6]
   Counts 8 to 10 and 11 involve an incident at the Outbound camp. There were a number of boys around. They were in a hut. The defendant rubbed the penis and testicles of some of the boys and then masturbated himself while continuing to touch the testicles and then committed the act of sodomy on MH.
7. [7]
   Count 12, involving AB, involves the defendant having an erection and pushing it towards AB’s face.
8. [8]
   Section 567 of the Criminal Code provides:

3. “(2)
   Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form 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.”

9. [9]
   This section was analysed by Macrossan J in R v Cranston [1988] 1 Qd R 159, where his Honour noted at p 164:

“… the further requirement of a ‘series’ was that some nexus should be involved between the offences. At 39B^[1] it was stated that it was necessary to take into account both the law and facts involved in the offences in deciding whether they were of a similar or dissimilar character. At 39D Lord Pearson described ‘nexus’ as ‘a feature of similarity which in all the circumstances enables the offences to be described as a series’ … [at 164.32] It seems clear that the requirement that nexus should exist is an additional requirement upon the requirement of ‘similar character’ and, however imprecise they may be, these words call for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present. How, then, are the courts to deal with the inevitable problem which is involved in the application of so imprecise a test and the consequence that different minds may be disposed to come to different conclusions in judging whether the test has been satisfied? The courts may find that an appropriately liberal exercise of discretion to sever is called for in doubtful cases. Certainly it will be necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character.”

10. [10]
    Section 597A of the Code provides:

3. “(1)
   Where before a trial or at any time during a trial the court is of 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 the court may order a separate trial of any count or counts in the indictment.”

11. [11]
    I note that the court must not have regard to any possibility of collusion or suggestion in applying such a provision^[2].
12. [12]
    It seems to me that a real issue which is raised in this case is whether the evidence of each complainant is admissible concerning the others.
13. [13]
    In Pfennig v The Queen (1995) 182 CLR 461, it was said that propensity evidence which merely shows that the accused person 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 sufficient 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.

14. [14]
    In Phillips v The Queen (2006) 225 CLR 303 at 54 it was 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.’”

And further, 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.”

15. [15]
    In R v MAP [2006] QCA 220 at [43] it was noted that usually to achieve the strong degree of probative force, the facts would need to be strikingly similar.
16. [16]
    In R v R [1997] QCA 277, in finding 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 J or that with N. All involved sexual misconduct, but that is not enough.”

17. [17]
    I have paid careful regard to paragraph 25 of Mr Whitbread’s submissions, and accept that an important feature of this case is that the defendant was a De La Salle brother at the BoysTown facility at the relevant time, and the complainants were between 12 to 15 years old. However, it seems to me there was no hallmark or aspect of the offending which is sufficient to achieve the necessary probative value to become admissible on the trial of the others.

18. [18]
    As I mentioned, with respect to the complainant JL, there is the one count of rubbing the backside and two of groping the groin area. Unlike MH, there are no assaults. Further, there is no count of self-masturbation or anal sex. Those counts are different. Also, count 12 involving AB clearly implies an attempt at oral sex, which does not feature with the other complainants.
19. [19]
    In those circumstances, I do not consider, despite the Crown submissions, that the evidence is cross-admissible, and in those circumstances, the complainants are not joinable, in my determination.
20. [20]
    Even if I was wrong, though, in that conclusion, I would order a separate trial in the exercise of my discretion under section 597A. I note in De Jesus v The Queen (1986) 61 ALJR 1^[3] and in R v Cranston (supra) at 165.30, the courts have accepted that charges of a sexual nature have the potential to inflame prejudice in a jury. I specifically consider the leading of the evidence of violence concerning MH would potentially have an impermissible prejudice to a jury when regarding the evidence of the other complainants, because, if accepted, it would be quite disgraceful behaviour by a brother in whom trust is proposed when looking after children. The jury might use impermissible reasoning by way of prejudice involving the other complainants when the evidence of violence does not exist as regards them.
21. [21]
    So in those circumstances, even I was wrong about the application of 567, I further or alternatively order severance under 597A of the Code.
22. [22]
    So, in the circumstances, I order separate trials with respect to each complainant.
23. [23]
    My formal order is the application is granted.