R v JC[2017] QDCPR 34

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the Crown to reopen a ruling given in the District Court at Mackay on 18 March 2016 whereby the court ordered that separate trials be held.

2. [2]
   The complainants in this case are MC, the defendant’s former wife, his step-son, JEB, born 20 April 1995 and his step-daughter, TLC, born 24 May 2000. There are two other witnesses, namely JCB and CCB, the biological children of JC and MC.

Charges

3. [3]
   The defendant is charged on three indictments alleging the following counts.

Complainant TLC

4. [4]
   Count 1: Assault occasioning bodily harm – when she was two years old (23 May 2002-24 May 2003) at Mt Pleasant. The defendant punched her to the face leaving a black eye.

5. [5]
   Count 2: Assault occasioning bodily harm whilst armed between 31 January 2006 and 1 March 2006 at Mt Pleasant or elsewhere. She was struck with a gold bracelet leaving bruises on her body.

6. [6]
   Count 3: Common assault when 10 years old on a date unknown between 23 May 2010 and 24 May 2011 at Mt Pleasant. She was hung from a balcony by her legs.

7. [7]
   Count 4: Indecent treatment of a child as guardian between 31 January 2013 and 1 March 2013 at Mt Pleasant or elsewhere. The defendant shaved her vagina when she was 12 years old.

8. [8]
   There is also evidence of uncharged acts,^[1] namely:

1. (a)
   regular assaults;

2. (b)
   breast inspections;

3. (c)
   leg rubbing;

4. (d)
   the shaving of other intimate parts of TLC’s body;

5. (e)
   chasing by the defendant with his penis out.

Complainant JEB

9. [9]
   Count 1: Assault occasioning bodily harm on a date unknown between 31 December 2002 and 1 January 2004. The defendant struck his head against the floor a number of times leaving lumps.

10. [10]
    Count 2: Assault occasioning bodily harm on a date unknown between 20 April 2009 and 20 April 2010 at Mt Pleasant. The defendant pushed his head into a bedroom draw, attempted to shut it, leaving grazes and spotting to the area.

11. [11]
    Count 3: Assault occasioning bodily harm whilst armed on a date unknown between 20 April 2009 and 20 April 2010 at Mt Pleasant. The defendant assaulted the complainant with a poop scoop leaving bruising.

12. [12]
    Count 4: Common assault on a date unknown between 20 April 2010 and 20 April 2011 at Mt Pleasant. The defendant pushed the complainant’s head into a dog’s water bucket and he could not breathe.

13. [13]
    Count 5: Assault occasioning bodily harm whilst armed on a date unknown between 30 September 2010 and 1 November 2010. The defendant punched the complainant after he returned home. He stood on the complainant’s throat and jumped on his head. He picked him up and threw him down on the tile. He then struck the complainant with a steel capped shoe leaving a wound to the head.

14. [14]
    Count 6: Common assault on a date unknown between 20 April 2011 and 20 April 2012 at Mackay or elsewhere. The defendant punched the complainant to the head when a phone was thrown out of the car window.

15. [15]
    Count 7: Common assault on a date unknown between 20 April 2011 and 20 April 2012 at Mackay or elsewhere. The defendant punched the complainant to the face and kicked him.

16. [16]
    Count 8: assault occasioning bodily harm on a date unknown between 20 April 2011 and 20 April 2012 at Mackay or elsewhere. The defendant backhanded the complainant to the nose causing immediate bleeding.

17. [17]
    Count 9: Common assault on a date unknown between 20 April 2011 and 20 April 2012 at Mackay or elsewhere on a pigging trip. The defendant punched the complainant and then grabbed a branch and hit him to the head with it.

18. [18]
    Count 10: Assault occasioning bodily harm whilst armed on a date unknown between 31 December 2012 and 1 March 2013 at Mackay or elsewhere. The defendant hit the complainant with a screwdriver to the left arm resulting in a small cut saying “I’m going to put this through your chest”.

19. [19]
    Count 11: Common assault of a date unknown between 31 December 2012 and 7 June 2013 at Mt Pleasant. The defendant punched the complainant in the face calling him an idiot and a “fuck head” and hitting and kicking him whilst he was on the ground.

20. [20]
    Count 12: Assault occasioning bodily harm whilst armed on a date unknown between 31 December 2012 and 7 June 2013 at Mt Pleasant. The defendant picked up a vacuum and threw it at the complainant’s head knocking him to the ground followed by a punch, and an assault with a vacuum pipe leaving him bruised.

21. [21]
    Count 13: Common assault on a date unknown between 31 December 2012 and 7 June 2013 at Mackay or elsewhere on a pigging trip to Mt Spencer. The defendant punched and kicked the complainant to the head and then struck him with a branch to the head and body.

22. [22]
    Count 14: Common assault on a date unknown between 31 December 2012 and 7 June 2013 at Mackay or elsewhere on a pigging trip. The defendant chased the complainant with a knife stating “I’m gonna fucking stab you and gut you”.

23. [23]
    The uncharged acts to be led are:

1. (a)
   an assault with a rake;

2. (b)
   placing the complainant’s head in a toilet and flushing it;

3. (c)
   riding over the complainant’s leg with a bike;

4. (d)
   striking him with a garden hose;

5. (e)
   making him write a slave letter;

6. (f)
   locking him in a dog cage;

7. (g)
   locking him in a freezer;

8. (h)
   pointing a gun and threatening to shoot him.

Complainant MC

24. [24]
    Count 1: Common assault. On a date unknown between 31 January 2006 and 1 March 2006 at Mt Pleasant. The defendant pointed a rifle at her temple and threatened to use it to commit family suicide.

25. [25]
    Count 2: Assault occasioning bodily harm on a date unknown between 31 May 2008 and 1 July 2009 at Mt Pleasant. The defendant assaulted the complainant in a bedroom banging her head against a window and assaulted her generally leaving bruising.

26. [26]
    Count 3: Rape on a date unknown between 31 May 2008 and 1 July 2008. The defendant at Mt Pleasant raped the complainant.

27. [27]
    Count 4: Common assault on a date unknown between 31 July 2008 and 1 September 2008 at Mt Pleasant The defendant held a knife to the throat and stomach of the complainant threatening to gut her like a pig.

28. [28]
    Count 5: Assault occasioning bodily harm. On 6 June 2013 at Mt Pleasant the defendant assaulted the complainant with a broomstick and punched her to the head leaving sore red marks to the face.

29. [29]
    An uncharged act of threatening to break her jaw was alleged to have occurred in April 2013.

Events after charge

30. [30]
    A 23 count indictment involving all complainants was presented in 2015.

31. [31]
    Prior to the ruling in March 2016 the defence filed submissions.^[2]  It was submitted to the court that the charges were not properly joined as they did not constitute a series of offences of a similar character. It was further submitted there was a real risk of prejudice arising from the joinder of the charges and the defendant would be prejudiced or embarrassed in his defence.

32. [32]
    The Crown conceded that MC’s charges should be severed from those involving JEB and TLC. It was submitted that the charges relating to JEB and TLC were properly joined. This was because he was the stepfather and the offences spanned a significant period of time.

33. [33]
    His Honour ultimately determined that the charges involving JEB were rather more serious than those involving TLC, and he found it difficult to conclude that the offences were of a same or similar character and were joinable. He considered, in any event, there was a risk of prejudice to the defendant and ordered separate trials.

Events which have arisen since the ruling

34. [34]
    On 9 February 2017, pre-recordings commenced in this matter. TLC was called as a witness with respect to the charges involving her as the complainant. She was cross-examined by counsel for the defendant. She gave evidence of the charges alleged against her. It was put by the defence that family court proceedings occurred after June 2013 and a custody application had been brought by MC with respect to JCB and CCB. It was put to her and accepted that she had read affidavits in the Family Court proceedings which had been given to her by her mother. It was put to her that she was telling stories about the defendant in order to help MC in her custody dispute with the defendant. The witness denied this.

Crown submissions

35. [35]
    The Crown submits that in light of the nature of the defence cross-examination of the pre-recording, special circumstances have arisen such that the earlier pre-trial ruling should be reopened. The Crown relies on the South Australian Full Court decision of R v M, BJ.^[3]  It submits that the present case is fairly much on all fours with the South Australian decision and in those circumstances it submits these are offences of the same or similar character and any prejudice can be addressed by directions given by the trial judge.

36. [36]
    Further in written submissions^[4] it is said:

1. (a)
   The offences (aside from the indecent treatment charge) involves allegations of violence at the hands of the defendant on family members.

2. (b)
   The offences are part of a series of offences of a similar character.

3. (c)
   They explain inaction by the mother.

4. (d)
   In re-examination an explanation for inaction may be given.

Defence submissions

37. [37]
    On the other hand the defence submits the ruling should not be reopened and submits:^[5]

1. (a)
   The sexual offences are likely to inflame prejudice.

2. (b)
   The evidence of the rape (MC) and the indecent treatment charge (TLC) is not admissible in the trials involving the other complainants.

3. (c)
   There are no factual similarities between the alleged sexual offences.

4. (d)
   It is highly unusual MC and the defendant reconciled despite the fact she alleged she had been raped by him.

5. (e)
   The evidence of violence is not relevant to the modus operandi concerning TLC sexual offences.

6. (f)
   MC left the home in 2013 and the violence is not the reason she did not complain earlier.

7. (g)
   There is no reason why the defence of coaching and collusion cannot be run on separate trials.

Relevant law

38. [38]
    Section 567 of the Criminal Code 1899 (Q) relevantly provides that:

“567  Joinder of charges

3. (1)
   Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

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.”

39. [39]
    Further 597A of the Criminal Code 1899 (Q) provides:

“597A  Separate trials where 2 or more charges against the same person

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.

3. (1AA)
   In considering potential prejudice, embarrassment or other reason for ordering separate trials under this provision in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.”

40. [40]
    Evidence of collusion does not render similar fact evidence inadmissible.^[6]

41. [41]
    In R v M, BJ^[7] the Full Court of South Australia held that evidence of sexual offences and violence against a number of complainants were properly joined and were cross-admissible.

42. [42]
    In a similar vein in R v R^[8] the Queensland Court of Appeal accepted that instances of violence in a domestic setting may be relevant to sexual offences committed in that environment.

43. [43]
    Indeed section 132B of the Evidence Act 1977 (Q) provides that relevant evidence of the history of the domestic relationship^[9] between the defendant and the complainant^[10] is admissible.

44. [44]
    In order for evidence to be cross-admissible in Pfennig v R^[11] it was said that “the admission of similar fact evidence lies in its possessing a particular, probative value or cogency” such that if accepted bears no reasonable explanation other than the inculpation of the accused in the offence charged.^[12] In Pfennig it was held that it is not required for there to be striking similarity before the propensity evidence is admitted. I note in Pfennig the offender pleaded guilty to one of the charges.

45. [45]
    At p 484 it was noted:

“[S]triking 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 relevant probative force if the evidence does not possess such characteristics.”

46. [46]
    In Phillips v R^[13] it was held at [54]:

“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.’  The criterion of admissibility for similar fact evidence is the ‘the strength of its probative force.’  It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence. The probative evidence 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 relation to the issues for decision in the subject case.’” 

It was further noted in Phillips at [56]:

“The similarities relied on were not merely not striking, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and to seek it consensually in the first instance, is not particularly probative … (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.”

Disposition

47. [47]
    In this case there is no doubt that the indecent treatment allegation is joinable with respect to the other allegations involving TLC. Further there is no doubt that the rape allegation involving MC is joinable with the other offences of violence involving MC.

48. [48]
    There is an argument available to the Crown that the offences of violence (or at least some of them) are cross admissible as between the complainants.

49. [49]
    However the difficulty in this case is the existence of the sexual allegation involving TLC and the sexual allegation involving MC.

50. [50]
    I agree with the defence submissions that there is a real risk of prejudice here by the joinder of those charges and also the leading of uncharged (sexual) acts relative to TLC.^[14]

51. [51]
    But even if directions could be given to address this prejudice, the main difficulty confronting the Crown here is the existence of the March 2016 ruling. Under s 590AA of the Code leave can only be brought to reopen that ruling if there is “special reason” to do so. Mere disagreement with an earlier ruling is an insufficient basis to re-open it.^[15]

52. [52]
    In conclusion it is my view it cannot be established despite the issues raised in cross-examination that the original ruling given by the District Court judge is definitely incorrect. I particularly note of course the Crown conceded that MC’s charges were not joinable with the others at that stage. It is my view that significant prejudice would arise to the defendant if the rape allegation, and the indecent treatment and the uncharged act allegations involving TLC were joined with the offences of involving the other complainants.

53. [53]
    I do not find that special reason has been established to reopen the earlier ruling.

54. [54]
    Of course the defence will need to tread carefully in cross-examination otherwise the re-examination may lead to a disclosure of the other charges.^[16] 

Conclusion

55. [55]
    In all of the circumstances I dismiss the application by the Crown.