R v MH[2016] QDCPR 10

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to s 590AA of the Criminal Code (Q) 1999 for severance of charges brought against the defendant.

2. [2]
   The defendant is charged with 18 counts involving his three natural daughters, KJH born in 1987, NH born in 1989 and KLH born in 1992.

3. [3]
   The range of dates of the alleged offending is between 19 August 1995 and 15 February 1999.

Background

4. [4]
   The evidence upon which this application is to be based is contained in a schedule of facts attached as Exhibit A to the Crown submissions.^[1] The facts are not in dispute for the purposes of this application.

5. [5]
   The defendant and his family (including two other children) lived at a number of addresses between 1987 and his divorce from the complainants’ mother. They lived at an address at Paradise Point and an address at Pacific Pines.

6. [6]
   KJH and NH attended the Coombabah State Primary School whilst the family was living at the Paradise Point house. NH and KLH were enrolled at the Gaven State Primary School in April 1998.

7. [7]
   Counts 1 to 3 each allege indecent treatment of NH between 19 August 1995 and 15 October 1998. She was most likely between eight to nine years of age at the relevant time. The alleged offending occurred at the Paradise Point house. She alleges that she and the defendant had been to the beach fishing. They returned home and had a shower together in the downstairs bathroom. In the shower the defendant rubbed NH’s vagina with his hand (count 1) and asked her whether she liked it and she said “yes”. He then moved her to the bathroom sink and licked her vagina (count 2). He then masturbated himself to ejaculation (count 3). He told her not to tell anyone, it was their secret and that she should not tell anyone.

8. [8]
   Counts 4 to 9 involve allegations of indecent treatment against NH and one count of rape against NH. These events occurred at the Paradise Point house. One morning on a weekend or school holiday NH and the defendant were at the Paradise Point house by themselves. NH was still in her pyjamas watching TV when the defendant yelled out to her “come here”. She entered her parents’ bedroom. The defendant was lying on the bed with the covers over him and told her to come and lie down with him. She sat on the edge of the waterbed, he grabbed her shoulders and moved her so she was lying under the bedcovers with him and he cuddled her. He then turned on a VCR player which showed a female sucking on a male’s penis and a male licking a female’s vagina (count 4). He then touched her genitals on the outside of the clothing, asking her whether she liked it and then put his hand underneath her underwear and started rubbing her between her labia minora (count 5). He asked whether she liked it and she said “yes”. He then pulled the covers back and knelt at the end of the bed, took off her underpants and began licking her vagina for about five minutes (count 6). The complainant was naked. He then asked her if she wanted to do what the lady was doing on TV and she initially said “no”. The defendant was naked by this point and the complainant then sucked on the defendant’s erect penis for about 30 to 40 seconds. She lifted her head up and he then grabbed the back of her head forcing the mouth onto his penis (count 7). She felt like she was choking. NH then heard the family car pull into the driveway and she ran to the bathroom. NH’s mother entered the house and then left a short time later. The defendant then entered the bathroom, NH was still naked. He asked whether she was okay and she said “yes”. He then told her to turn around and started to rub the outside of her vagina again for about two minutes (count 8). He asked her whether it felt good and she said “yes”. She was pushed forward and then he inserted his penis into her vagina which hurt a lot and she let out a loud scream. He removed his penis straight away and then she started crying (count 9). He said he was sorry and told her not to tell anybody. She went downstairs and cried a lot. The mother and sisters arrived shortly after this.

9. [9]
   Later that night the defendant came to the room in which KJH and NH were sleeping. NH was in the bottom bunk and KJH in the top bunk. NH recalls the defendant tucked KJH in first. KJH was lying under bedcovers wearing pyjamas which included boxer shorts and underwear. The defendant climbed onto the top bunk and lay under the blankets with her. He began to rub KJH’s thigh and inner leg with his hands and rubbed his hand up and down her leg with each stroke getting closer to the vagina. He then rubbed the vagina on the outside of the boxer shorts and then put his hand inside the shorts and rubbed her on the outside of the underwear. He then moved his hand under the underwear and rubbed her vagina (count 10). He then took her wrist and placed her hand on the top of his shorts on his penis. He moved her hand up and down to stroke it (count 11). He asked her whether she liked the feel of that,^[2] she pulled her hand away.  The defendant whispered to her “no matter what happens you cannot tell anyone about this” which he repeated a few times.  She estimates the incident lasted between 10 and 15 minutes.

10. [10]
    He then left the top bunk and leaned over the bottom bunk and told NH “it’s all right” he then put his hand under the blankets and rubbed her on the outside of the genitals over her underpants (count 12) and said “don’t tell anyone I mean it don’t tell anyone”.^[3]

11. [11]
    With respect to count 13, the complainant is KJH. The alleged offence occurred at the Paradise Point house. This occurred about three weeks after count 11. The alleged offending occurred on a non-school day. The family was having a BBQ at the park across the road from the Paradise Point house. KJH was at home alone with the defendant midmorning. She got out of the shower and wrapped a towel around herself and started to walk to her bedroom. As she walked along the hallway she saw the defendant sitting on the toilet with the door wide open. He said to her “KJH come here”. She turned around and walked to the toilet entrance and asked what he wanted and he said “show me open your towel”. She opened her towel and she was naked. He told her to come closer and she stood directly in front of him with her towel open and he began rubbing KJH’s vagina up and down with one finger (count 13). She told him “daddy don’t”. He asked her “don’t you like that?” to which she said “no” and he then told her to go to her room and get dressed.^[4]

12. [12]
    With respect to counts 14 to 16, they involve NH. One morning, a few months after the pornographic movie incident, NH and the family had been at the beach. They returned to the house and NH had a shower in the downstairs area of the house. The defendant rubbed the outside of NH’s vagina with his hand with their naked bodies touching (count 14). He then grabbed her hand and placed it on his erect penis and moved her hand up and down for a couple of minutes (count 15). He then picked her up and sat her on the sink area and licked her vagina for about five to ten minutes and he ejaculated (count 16). They got back into the shower and afterwards he told her not to tell anyone.

13. [13]
    Count 17 involves KLH. She thinks this offending happened at the Pacific Pines house. She was in her bed in her bedroom one night about to go to sleep. The defendant entered the room to tuck her in and sat on the edge of the bed. She was lying on her back. He reached under the blankets, pulled her underwear to one side and rubbed the front of her vagina (count 17). He kept rubbing her until she pushed him away. She cannot recall if he said anything to her.

14. [14]
    Count 18 involved NH at the Pacific Pines house. On Saturday morning she was getting ready to play netball and was wearing her netball uniform. She was in the kitchen making toast when the defendant called out to her “NH come here”. She went into the bedroom and he was lying on the bed. He asked her to “come and give me a cuddle before you go”. She lay on the bed under the covers next to the defendant and he grabbed her right breast with his hand and rubbed it (count 18). She said “don’t”. He then tried to move his hand in between her legs and she got out of the bed and went into the kitchen. A disclosure was made to the mother shortly after that incident.

15. [15]
    The complainants’ mother, SH, alleges that KJH made a disclosure about the offending when she was around 9 or 10. The mother confronted the defendant about this and told him he was not allowed back into the house unless he admitted to it. He told her “I did it because I wanted to know if anybody had been interfering with her”.

16. [16]
    In about 2001 SH told her brother SW that two girls had made disclosures to her. SW was having a beer with the defendant later and said “MH what’s is this shit I’ve been hearing about you molesting the kids?”. The defendant replied “I’m not going to lie to you to be one hundred percent honest I did it”. SW asked him why and he said “I don’t know”. SW then told the mother to contact the police.

17. [17]
    The matter was reported to the police in 2009.

18. [18]
    The defendant participated in an interview with the police on 1 May 2010 in which he denied all allegations and denied confessing to it. He admitted sometimes tucking the girls into bed and admitted he used to take NH and KGH to the beach all the time when they were kids. He said the reason for the allegations was because there was a family vendetta against him because of an occasion when he had violently assaulted KGH and dragged her by the hair.

Submissions

19. [19]
    In written submissions^[5] the defence submits as follows:

1. (a)
   it is accepted that counts 11 and 12 (the bunk bed incident) are cross- admissible;

2. (b)
   the evidence of KGH and KLH is not cross-admissible in relation to the counts which allege more serious offending against NH;

3. (c)
   there is no similarity or nexus with the other charges except that each complainant is a biological child of the applicant;

4. (d)
   separate trials should therefore be ordered pursuant to s 597A with respect to each complainant.

20. [20]
    In oral submissions the defence conceded that if all of the NH allegations were tried together with the bunk bed incident(including the count involving KJH) then there would be not that much prejudice against the defendant if count 13 involving KGH was tried with the other counts.

Crown submissions

21. [21]
    The crown submits^[6]:

1. (a)
   that the joinder of the counts on the one indictment is permissible under s 567(2) of the Criminal Code;

2. (b)
   relevant is that counts 4 to 12 occurred on the same day;

3. (c)
   the following are similarities with respect to each complainant

1. (i)
   each complainant child was pre-pubescent with the offending commencing at around eight or nine;

2. (ii)
   the defendant was the biological father for each child and resided with them;

3. (iii)
   the offending started when they reached a certain age;

4. (iv)
   the offending against each complainant involves an occasion where he tucked them into bed;

5. (v)
   with the exception of counts 10 to 12 all of the offending occurred while they were alone;

6. (vi)
   the offending was in close temporal succession;

7. (vii)
   the offending against NH and KJH contains an additional scenario i.e. he told them not to tell anybody;

4. (d)
   it is submitted that there is no reasonable view consistent with innocence here;

5. (e)
   additionally relevant is the admission made to SW that he had molested the “kids”.

Relevant law

22. [22]
    Section 567(2) of the Criminal Code permits joinder of charges where the 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.” 

23. [23]
    Further under s 597A of the Criminal Code separate trials may be ordered in the circumstances where the defence of the accused person may be prejudiced or embarrassed by reason of the joinder of charges on the same indictment.  In considering this issue the court must not have regard to the possibility of collusion or suggestion.^[7]

24. [24]
    In order for evidence to be cross-admissible it must go beyond merely reasoning that a defendant has a general propensity or disposition to commit a sexual offence. For counts to be cross-admissible on the basis of amounting to similar facts, the evidence must have a high degree of cogency or probative force.^[8] The test for cross- admissibility of similar fact evidence is that when the evidence is assessed with the whole of the prosecution case and assuming it to be accepted by the jury it has such probative value that there is no reasonable view of that evidence consistent with the innocence of the accused.^[9]

25. [25]
    In Pfennig it was held that it is not required there be striking similarity before the propensity evidence is admitted. I note in Pfennig the offender pleaded guilty to one of the charges. In Pfennig at p 484 it was noted:

“Striking 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.”

26. [26]
    Further in Phillips v R^[10] it was held:

“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 value ‘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.  The criterion of admissibility for similar fact evidence is ‘the strength of its probative force.’  It is necessary to find ‘a sufficient nexus’ between the primary evidence on the particular charge and the similar fact evidence.  The probative value must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused.’  Admissible similar fact evidence must have ‘some specific connection with or in relation to the issues for decision in the subject case.’”

27. [27]
    Of course one must have regard also to that which was stated in R v Cranston^[11] where Macrossan CJ following De Jesus v R^[12] noted at p 163 that sexual cases are particularly likely to arouse prejudice which is a relevant factor to the exercise of the discretion.

28. [28]
    His Honour also said that it may be considered there should be a liberal exercise of the discretion in doubtful cases.^[13]

Disposition

29. [29]
    It is my view that the evidence of KJH concerning count 11 is clearly admissible on the trial involving NH of count 12 so the starting point is that a trial of counts 11 and 12 should be heard together.

30. [30]
    The next point though is whether the evidence on the other counts is admissible.

31. [31]
    In my view despite the serious nature of the charges involving NH compared to those involving KJH the evidence is cross-admissible for the following reasons:

1. (a)
   the complainants were of a similar age when the offending commenced;

2. (b)
   the offending occurred in the family home often when they were alone;

3. (c)
   the defendant asked each of them whether they liked the clearly inappropriate sexual behaviour^[14] which I consider to be an unusual feature of this case;

4. (d)
   The defendant was the natural father of each complainant;

5. (e)
   The defendant started off by rubbing the vagina of each complainant.  Whilst it is true the defendant then licked the vagina of NH and later inserted his penis into NH, NH appears to have been more compliant and indeed KJH pulled her hand away^[15] and told him she did not like it, unlike NH;^[16]

6. (f)
   With respect to NH and counts 1 to 3 at the conclusion of that incident the defendant told her “don’t tell anyone this is our secret don’t tell anyone”. This also occurred at the conclusion of count 12. With respect to KJH he made a similar comment to her after the occurrence of count 11.

32. [32]
    I consider that the difference with KLH is that she does not give evidence that she was asked whether she liked the behaviour; he did not tell her not to tell anyone and she pushed the defendant away.

33. [33]
    In the circumstances applying the test in Pfennig concerning NH and KJH I am of the opinion that having regard to the whole of the prosecution case the evidence of each has such probative value that there was no reasonable view of that evidence consistent with the innocence of the defendant.  I also have regard to the fact that counts 4 to 12 occurred on the same day.  In the circumstances I consider that counts 1 to 16 and count 18 are joinable. 

34. [34]
    I further consider the exercise of the discretion under s 597A of the Criminal Code.  In my respectful view having determined that at the least counts 11 and 12 are joinable there seems to be less prejudice by joining the one additional count (count 13) in the one trial. Additionally in my view any prejudice is substantially dissipated as the defendant is alleged to have admitted to molesting the “kids” (plural).

35. [35]
    In the circumstances I decline to exercise the discretion to sever the charges involving NH from the charges involving KJH.

36. [36]
    On the other hand I have determined by reason of the dissimilarities I have mentioned above concerning KLH that I should sever count 17 from the indictment.

37. [37]
    It seems to me that there are arguments that there are sufficient dissimilarities with that count such that a separate trial should be ordered.

38. [38]
    In conclusion I order that count 17 be heard separately from counts 1 to 16 and count 18.