R v Thompson[2016] QDCPR 14

DISTRICT COURT OF QUEENSLAND

Introduction

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

The charges

2. [2]
   The defendant is charged with counts involving two complainants as follows:

1. (a)
   Count 1 – indecent treatment of JT at Beaudesert on a date unknown between 17 July 1994 and 16 February 1996;

2. (b)
   Count 2 – Indecent treatment of JT at Beaudesert on a date unknown between 17 July 1994 and 16 February 1996;

3. (c)
   Count 3 – Indecent treatment of RD at Beaudesert on a date unknown between 25 September 1996 and 10 October 1997;

4. (d)
   Count 4 – Indecent treatment of RD at Beaudesert on a date unknown between 25 September 1996 and 10 October 1997;

5. (e)
   Count 5 – Indecent treatment of RD at Beaudesert on a date unknown between 25 September 1996 and 10 October 1997;

6. (f)
   Count 6 – Indecent treatment of RD at Beaudesert on a date unknown between 25 September 1996 and 10 October 1997; and

7. (g)
   Count 7 – Indecent treatment of RD at Beaudesert on a date unknown between 25 September 1996 and 10 October 1997.

The facts

3. [3]
   The defendant was a brother who worked at Boystown Beaudesert. The role of the brothers at Beaudesert were to perform duties as cottage brothers. They were each allocated to one cottage. They were responsible for supervising boys when the cottage parents were away and accompanied them on picnics with house parents. They supported cottage parents in their role and also disciplined the boys. They were responsible for doing night time checks on the cottages and would also liaise with social workers regarding any incidents as considered appropriate.^[1]  The brothers were also qualified teachers and were involved in taking classes. 

4. [4]
   The defendant was in charge of the medical centre.

5. [5]
   The complainant JT was born on 15 February 1980. On 18 July 1994 he came to the Boystown facility. He was 14. He had come from a troubled and disadvantaged background. Whilst he was there he attended the medical centre during the day as a result of chafing between his legs on the inside of his thighs. This chafing extended to his testicles and between his bottom cheeks. The defendant was the designated medical officer.

6. [6]
   The alleged offending occurred in the medical centre. The defendant said he would have a look at the chafing.^[2]

7. [7]
   Whilst the complainant was lying on one of the beds the defendant applied a cream to the chafed area wearing gloves. When applying cream to the area of the anus he pushed his finger in and out of the complainant a couple of times. He then moved his hand to the complainant’s testicles and onto the penis and started to stroke it. He grabbed the penis with the fingers from the tip of the penis and moved his hand up and down. This occurred for about 10 minutes. The defendant did not say anything during this. He then stopped and instructed the complainant to dress and come back if he needed more cream.

8. [8]
   Turning to RD, he came to the facility on 26 September 1996. He also came from a disadvantaged and troubled background. He said he was about 14 years of age at the time of the offending. He recalls the defendant coming into his bedroom on five occasions, at night whilst he was in bed, and offending against him. All occasions involved touching, fondling or masturbation of the penis.

9. [9]
   On the first occasion RD awoke to find the defendant trying to put his hand down his shorts and also touching the complainant’s penis on the top of his clothing. There was some resistance but the defendant left without saying a word.^[3]

10. [10]
    On the second occasion RD was asleep and the defendant entered the room and touched RD’s penis on top of the boxer shorts. He tried to put his hand down the shorts but RD pushed him away. The defendant said “Don’t worry, it’s only natural”. He then left the room.^[4]  I note it is not alleged any such comment was made to JT.

11. [11]
    Prior to the third occasion the defendant told RD he would get what he wanted.^[5]  Again it is not alleged any such comment was made to JT.

12. [12]
    On the third occasion RD awoke to the defendant masturbating his penis inside his boxer shorts. Ultimately RD told him to stop or he would scream. The defendant then removed his hand and left the room.^[6]

13. [13]
    The fourth incident occurred when RD awoke to the defendant with his hand down RD’s pants touching his penis. RD did not stop him and the masturbating went on for 5-10 minutes. He does not recall anything being said and the defendant then left the room.^[7]  

14. [14]
    On the fifth occasion RD awoke and the defendant had his hand inside RD’s boxer shorts and started masturbating RD’s penis. RD then jumped up and out of a window. He stole a car and ended up in a youth detention centre.

Defendant’s submissions

15. [15]
    The defendant submits in this case there is nothing in the nature of the allegations involving RD which can have a sufficiently strong degree of probative force or any specific connection to the charges involving JT. It is submitted, in the circumstances, the evidence of each is not admissible on the evidence of the other.

16. [16]
    In oral submissions Mr Glynn QC stressed matters contained in the written submissions. He submitted that the facts were not sufficiently similar to achieve the necessary probative value.

Crown’s submissions

17. [17]
    The Crown submits that there are number of similarities with respect to the offending. It submits that each complainant was at the facility, each complainant was a 14 year old boy and away from their parents, being from disadvantaged or troubled backgrounds. It is submitted that the defendant was responsible for the supervision of the boys at the relevant time, each was lying on a bed and the offending involved the defendant masturbating the penis, or at least attempting to. It is submitted that the defendant did not say anything, at no time did he warn the boys not to tell anybody and that the acts were brazen.

18. [18]
    In oral submissions the Crown submitted:

1. (a)
   it was highly relevant these were 14 year old boys at Boystown;

2. (b)
   the defendant was a De La Salle brother and their supervisor;

3. (c)
   the offending occurred over a discrete period;

4. (d)
   they were both in bed;

5. (e)
   the conduct involved masturbation during which the defendant did not say anything, which was unusual; and

6. (f)
   the masturbation continued when there was no resistance. 

Reply by the defence

19. [19]
    In reply the defence submitted that the Crown was merely striving to find similarities. There was really nothing remarkable about the case and indeed on occasions the defendant did say something to RD.

Legal principles

20. [20]
    Section 567 of the Criminal Code provides:

“(2)  Charges for more than one 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.”

This section was analysed by Macrossan J in R v Cranston^[8] 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^[9] 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.”

21. [21]
    Section 597A of the Criminal Code provides:

“(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.”

22. [22]
    The Court must not have regard to any possibility of collusion or suggestion in applying such a provision.^[10] 

23. [23]
    In Pfennig v The Queen^[11] 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.

24. [24]
    In Phillips v The Queen^[12] 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.”

And further at [79]:

“Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant.”

25. [25]
    In R v MAP^[13] it was noted that usually to achieve the strong degree of probative force, the facts would need to be strikingly similar. 

26. [26]
    In R v R^[14] 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.”

Determination

27. [27]
    I have paid close regard to the evidence and the submissions of counsel. In my opinion there is no hallmark or aspect of the offending which is sufficient to achieve the necessary probative value to become admissible on the trial of the other. Whilst there was certainly touching of the penis of 14 year old boys and the defendant was the supervisor at Boystown, the circumstances of the offending were somewhat different. The offending on the first complainant, JT, occurred in the medical centre during the process of cream being applied, yet, on the other hand, the offending involving RD occurred when the defendant snuck into his room and indecently dealt with him.

28. [28]
    The mere fact of masturbation of the penis does not of itself provide sufficient similarity. Indeed, in this case there was no common fact of insertion of the finger into the anus. If both matters involved the defendant sneaking into their rooms at night and then indecent touching then the position may have been different.

29. [29]
    Also, at no stage did the defendant tell JT it was “natural”, a matter which would have increased the probative value of the RD allegations.

30. [30]
    In those circumstances I do not consider that there is sufficient similarity between the allegations involving each complainant. I do not consider, therefore, that the evidence is cross-admissible. The complaints are not joinable in my view.

31. [31]
    The Crown relied on a number of cases in its submissions which, in my view, are distinguishable.

32. [32]
    In R v Gregory^[15] the crucial feature was that the defendant was a mature man who struck up a friendship with the male child and engineered the child to share the bed with him.  In both cases massage was used as a pretext.  There was also the progression from touching of the penis to fellatio and then to sodomy.  Clearly, this was sufficiently probative.

33. [33]
    In R v Brown^[16] the appellant was charged with burglary with violence, grievous bodily harm, rape and stealing.  The 61 year old complainant went to bed, heard a noise, checked the doors and was knocked unconscious the other offences then occurring.  The second victim was a woman who lived alone.  At about 11.40pm she heard noises at the front door and went to investigate.  The defendant tried to pull her out of the door and rubbed his genital area.  She was able to call for help and pull herself free. The defendant walked away.  Again, I consider the similar fact evidence was clearly admissible.

34. [34]
    R v Hooper^[17] was relied on.  I apply caution when considering that case bearing in mind the approach taken by the High Court in Phillips.

35. [35]
    In R v Hoch^[18] there was the distinct similarity of two of the offences involving approaches in the showers and the defendant stating “it cleans it” when referred to touching the penis.

36. [36]
    R v CBM^[19] involved allegations that the complainants were the cousins of the appellant; there was close temporal connection of offending; and other people were present in the homes at the time of offending.

37. [37]
    Finally, in R v Brophy^[20] there was the distinct allegation that the complainants had gone to bed and/or had fallen asleep.  I consider that different to the present case.

38. [38]
    An example of where joinder was permitted is to be found in R v WAH^[21] where there was the distinct feature of the case which involved the accused licking his fingers after inserting them into the complainants’ vaginas.

39. [39]
    In any event, in the exercise of my discretion under s 597A of the Criminal Code I would order separate trials.  In this regard I take into account that which was stated in De Jesus v R.^[22] The courts have accepted that charges of a sexual nature have the potential to inflame prejudice in a jury.  I also note that Macrossan J in R v Cranston^[23] said that “The courts may find that an appropriately liberal exercise of discretion to sever is called for in doubtful cases”. 

40. [40]
    In the circumstances, I have determined that the charges are not joinable and, further, or alternatively, order severance under s 597A of the Code.

41. [41]
    For the reasons given I order separate trials with respect to each complainant.