R v CF[2015] QDCPR 4

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defence, pursuant to s 590AA of the Criminal Code to sever various counts on the indictment charging sexual offences against the defendant.  The basis of the application is that the various complainants are not joinable under s 567 of the Criminal Code or, alternatively, there is prejudice in joinder under s 597A of the Code.  The defence submits, in this case, that the evidence is not cross-admissible because it is not sufficient to fall within the test for admissibility outlined in Pfennig v R (1995) 182 CLR 461 and Phillips v R (2006) 225 CLR 303.

2. [2]
   On the other hand, the Crown submits the counts are joinable. The Crown submits there is a nexus or connection between the offences (see R v MAY [2007] QCA 333) It submits that the following features are relevant:  each child is a female; each child is a granddaughter, step or biological, of the applicant; each child was of a similar age; each incident involved the touching of the genital area of the complainant including two acts of digital penetration.  The alleged offending occurred in generally close temporal succession. 

3. [3]
   With the exception of counts 3, 4, 7 and 8, they occurred when the child was either lying on a bed or a couch. The offending in counts 1, 2, 4 and 7 and 9 occurred in the house in which the defendant was staying with the children. With the exception of count 3, the offending occurred in close proximity with others and it is alleged that there were admissions made in a pretext call which may be regarded as being admissions to the various allegations by various complainants. Thus, it is submitted there is no reasonable view of the evidence consistent with the innocence of the applicant and, accordingly, any risk of prejudice may be overcome by directions (see R v CBM [2014] QCA 212). 

4. [4]
   The depositions have been tendered as Exhibit 4. The summary attached to the applicant’s submissions is agreed by the parties to be an accurate one.

5. [5]
   By way of background, Z, the first complainant, was the step-granddaughter of the complainant. Counts 1 and 2 occurred relative to a shower at a house at Narangba where the applicant was living. She recalls entering the grandparents’ bedroom. The grandmother was in the shower, the defendant was in the bedroom. He tucked her into bed under the covers and then started tongue kissing her (count 1). He then asked her to open her legs and he placed his hands down her pants and rubbed her vagina and inserted fingers (count 2). Count 3 involves a sexual allegation involving going to the shops at Narangba which is placing the hand on the leg and moving up the leg onto the vagina. He didn’t insert his finger. Count 4 involved her lying on the ground watching television at Narangba one evening at the defendant’s house. They were in the living room by themselves watching the Simpsons. He has some sort of vibrating machine for his neck and he gradually moved it up to her backside and onto her vagina. The complainant’s uncle came into the room a short time later but did not see this. The complainant was aged between about 6 and 10 years.

6. [6]
   A disclosure was made in 2014 when she made a complaint to a friend. It then progressed to the mother and they then attended the Bundaberg Police Station and a 93A statement was taken. There was a pretext call on 12 June 2014 and the defendant made statements therein which could be regarded as admissions. The defendant was arrested and refused to be interviewed.

7. [7]
   Turning to counts 5, 6, 7 and 8, the complainant A was 10 or 11 at the time of the incidents. So she was older than the first complainant. He was her biological grandfather. The incidents happened at Bundaberg and then in Brisbane. Counts 5 and 6 occurred on the way back home after church. They went to a friend’s house in Bundaberg. She was lying on the couch, the brother was playing video games, PlayStation One. At about 1 or 2pm, she fell asleep and woke to find the defendant’s hand down her underwear. He was rubbing her vagina and penetrated it with his fingers. Also, he moved and rubbed her breasts (count 6). The brother did not realise what had happened. Counts 7 and 8 occurred in Brisbane. They went to the defendant’s house, located at Narangba. She woke around 6 am. She went to the kitchen. She gave him a hug. He then started rubbing her vagina on the outside of the underpants (count 7), and then rubbed her nipples (count 8). She pulled away. She told her mother about this in October 2013, provided a statement to the police in January 2014 and the defendant was charged. The mother of the complainant made a pretext call to the defendant and statements which may be regarded as admissions were made.

8. [8]
   The final count, count 9, relates to the complainant D. She was 10 at the time of the offence, he was the paternal step-grandfather. The incident occurred in the complainant’s bedroom at her house in Gin Gin. She was in her room playing Nintendo. The grandmother was sleeping on the bottom bunk. The defendant was sleeping in the playroom. He walked into her room. She showed him some video files and he then put his hand down her pants and started rubbing her vagina. She tried to squirm away. There was a disclosure made in May or June 2014 to a friend and then to her mother. After this she was taken to the police a s 93A statement was provided.

9. [9]
   It may be said that propensity evidence which merely shows the accused has a bad disposition has no other relevance and should not be admitted into evidence. Such evidence will be admissible, however, 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. 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 (see Pfennig v R (supra)).

10. [10]
    In Phillips v R (supra), 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.  Its probative value must be sufficiently high;  it is not enough that the evidence merely has some probative value of the requisite kind.”

11. [11]
    At [56] it was noted that the similarities alleged were 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.”

12. [12]
    The above principles were applied in the 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; although, I note that it is not essential.  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 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 involving L was not strikingly similar to that with J or that with D.  All involved sexual misconduct, but that is not enough.” 

13. [13]
    For example, in R v WAH [2009] QCA 263, the similar feature which led to admissibility was the distinctly curious behaviour of the defendant licking his fingers or thumb after the act in question.

14. [14]
    Having regard to the submissions of counsel and the evidence to which I have referred, it is my opinion that the evidence here does not fulfil the test set out in Pfennig (supra).  There is no feature of the evidence, to my mind, which reaches the necessary probative value to render it admissible.  Whilst striking similarity is not essential, it is a usual circumstance of admission, and there is nothing about the offending here which is strikingly similar concerning the complainants.  Like that in R’s case, it seems to me it is a case where, if one accepts the complainants’ evidence, the defendant took advantage of the opportunities presented to him. 

15. [15]
    Another question was raised concerning the admissions. In my view, this is not a case like R v Hasler [1987] 1 Qd R 239 or R v C [2002] QCA 82, relied on by the learned prosecutor.  This is a case where, if there are admissions, they are admissions to the conduct with the individual complainants, not an implied admission concerning another complainant.

16. [16]
    In those circumstances, I find that the evidence of the various complainants is not a series of offences within the meaning of that term contained in s 567 of the Code. However even if I am wrong in the view, I would exercise my discretion under s 597A of the Code to sever the charges, because, noting that these are sexual offences, to which great prejudice may attach, it seems to me appropriate, in light of the absence of similarity, to exercise my discretion to sever the indictment.