R v DBR[2018] QDCPR 31

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   DBR is charged on indictment before the District Court of Queensland at Ipswich as follows:

Count 1: Assault occasioning bodily harm (on a date unknown between 9/4/2016 and 6/5/2016 at Camira)

Count 2: Burglary and stealing (on 6/5/2016 at Springfield)

Count 3: Burglary by breaking in the night (on 8/5/2016 at Springfield)

Count 4: Sexual assault (on 8/5/2016 at Springfield)

2. [2]
   The prosecution applies for a pre-trial ruling, pursuant to s 590AA of the Code, that “relationship” evidence be admitted pursuant to s 132B of the Evidence Act 1977, on the trial of the defendant DBR.

3. [3]
   DBR applies, pursuant to s 590AA of the Code, for pre-trial rulings that:

1. the trial of count 1 on the indictment be heard separately from the trial of counts 2, 3, and 4; and
2. statements made by the applicant in a recorded interview with police on 8 May 2016 be excluded from evidence on his trial.

4. [4]
   I have reached the view that evidence of a telephone conversation on 7 October 2015 is admissible but that other “relationship” evidence is not. I have also reached the view that DBR’s applications should be refused. These are my reasons for those conclusions.

Material

[5]  On the hearing of the applications, the following material was admitted.

Exhibit 1:  Application by prosecution;

Exhibit 2:  2 x Outline of submissions of prosecution;

Exhibit 3:  Application by DBR;

Exhibit 4:  Outline of submissions of DBR;

Exhibit 5:  Transcript of field recording of 8 May 2016;

Exhibit 6:  Disc of recording by officer Horton-Hunter of 8 May 2016;

Exhibit 7:  Disc of recording by officer Ferguson of 8 May 2016;

Exhibit 8:  Statements of police officers Horton-Hunter, Ferguson, Cox, and diary notes of Horton-Hunter and Ferguson;

Exhibit 9:  Statement of WZV;

Exhibit 10:  Statement of PMQ.

Prosecution case

6. [6]
   The indictment alleges three separate occasions that DBR committed offences involving his ex-wife. It is alleged DBR and the complainant were married for about 8 years but separated in December 2012. They have two children together who reside with the complainant. It is alleged that in April 2016, the complainant went to DBR’s residence at Camira to speak with him and have him sign some paper work. It is alleged DBR undressed and masturbated in front of the complainant. When the complainant attempted to leave, DBR became aggressive and prevented her from doing so, forcing her onto a lounge and sitting on her. In the course of the struggle, the complainant suffered injuries including scratches and bruising. This incident is the basis of count 1, the offence of assault occasioning bodily harm.  

7. [7]
   It is alleged that on 6 May 2016, DBR went to the complainant’s residence at Springfield and entered without permission. He went into the complainant’s bedroom and spoke to her. He refused to leave. Whilst in the bedroom, it is alleged DBR produced two pairs of the complainant’s underwear and some nude photographs of her from his bag. He also looked through her property. It is alleged he took another pair of the complainant’s underwear before he left. This incident is the basis of count 2, the offence of burglary and stealing.   

8. [8]
   It is alleged DBR again entered the complainant’s residence, early on the morning of 8 May 2016. The complainant says she was awoken by DBR in her bedroom and again he refused to leave. On this occasion DBR produced the underwear he had taken on the previous occasion and commenced to masturbate whilst holding it. The complainant tried to get out of bed, but DBR held her down whilst he continued to masturbate until he ejaculated. DBR eventually left. The complainant described DBR as being “high” at the time of these events. This incident is the basis of counts 3 and 4, the offences of burglary by breaking in the night and sexual assault. 

Statements to police

9. [9]
   A complaint was made to police on 8 May 2016. Just before 5.00pm that day, police attended the residence of DBR to execute a search warrant. Police interaction with DBR at his residence was audio recorded. In light of the matters raised in objection to the evidence of statements made by DBR, it is necessary to set out in some detail the relevant events and conversations. Present at the residence were DBR, his mother and brother. Police detained those present, advised they intended to search the residence and provided DBR with a copy of the warrant which identified items they were looking for and the charges they were investigating.

10. [10]
    Police informed DBR, his mother and brother of their right to silence and each was asked questions to confirm they understood the warning. The following exchange occurred between police officer Horton-Hunter (OHH), DBR, his brother (GCR), and his mother (HLR). 

OHH: [DBR] do you understand that warning I’ve just given? [DBR]–

DBR: Yeah.

OHH: Yep, so if I ask you a question do you have to answer me mate?

DBR: Yes I do.

OHH: No.

DBR: No I don’t –

OHH: No.

DBR: – have to. Um you’re right okay.

OHH: Okay. So you understand –

DBR: I don’t have to answer.

OHH: Yep, but you understand that you don’t have to answer any questions I ask?

DBR: Um, so –

OHH: [DBR] –

DBR: Yeah.

OHH: Ah, I’ll just get you to answer that question first.

DBR: Mmhmm.

OHH: Do you understand – you don’t have to speak to me?

DBR: I do.

OHH: Okay, fantastic. Um you also, sorry, I don’t know your name mate?

GCR: Ah [GCR].

OHH: [GCR], do you understand that warning I’ve given in relation to –

GCR: Yeah.

OHH: – rights to silence? Yeah. What do you understand by that?

GCR: Ah I –

DBR: What a cow.

GCR: – don’t have to say anything if I don’t want to.

OHH: Spot on. And sorry ma’am, I don’t know your name.

HLR: [HLR].

OHH: [HLR], okay. Do you understand that warning I’ve given you?

HLR: Yes.

11. [11]
    Officer Horton-Hunter next informed each of their right to contact a friend, relative or lawyer. Before police commenced searching, DBR asked to speak privately with them. Police identified a suitable room in the house “for having a chat in”. DBR said he did not want to involve his brother and mother. Police then informed DBR they were investigating “an incident which occurred last night” and were looking for clothing he was allegedly wearing, as well as clothing taken from the residence. DBR told police he could take them to each of the items. DBR pointed out the bag listed in the search warrant was wrongly described as black when it was actually brown. DBR then explained the complaint was an embellishment of the truth. He said he had first spoken to the complainant before he entered the residence and that she knew he had possession of items of her clothing. DBR then said he did not know “what your charges are gonna be” and the police officer pointed out the charges they were investigating, as per the search warrant, were sexual assault and entering a dwelling with intent. DBR said there was a long history between himself and the complainant, described her as manipulative, said she had made false claims against him, and that he hoped he had done nothing wrong. Police said “we’d really like, to be honest, for you to come back to the station with us, so we can have a chat to you without your mum and your brother here.” DBR responded “I, I don’t wanna go anywhere. Unless you’re gonna arrest me, I don’t wanna go.” The police officer suggested they deal with the search warrant first and DBR agreed.

12. [12]
    DBR then identified items and police took possession of them. Police located items obviously associated with drug use but did not raise this with DBR. DBR said he had “more things to say” and “I’ve just got a couple more things to add” and police said “you can just come outside and have a chat with us there if you want to”. Police formally ended the detention of those present and provided DBR with a receipt. Police asked if anyone had any complaint and HLR replied “Absolutely not”. Police then asked DBR to go outside for “a bit more of a chat”. Once outside, the police officer said “Alright, sounds like you’ve got something you wanna tell us mate.” DBR then gave an account of events. This included that because he had not seen his children and had no phone, the only way to contact them was to go to the complainant’s residence. He said he went there on the Thursday and Friday morning and the complainant had invited him into the bedroom.  He said he asked her for a pair of her underwear and returned the underwear that she knew he had. He said he also returned some polaroid photos. He said this was “getting me by” and “as part of the transition, or moving on, I was returning them”.

13. [13]
    DBR said that morning he was again returning underwear but the complainant “didn’t want them”. He was asked what happened that morning and he said he went to wish her a happy mother’s day. He said the last couple of times he had seen her he had given her massages and had done so that morning. Police asked “Did she invite you around this morning?” and he replied “Of course not, of course not, no. But I did speak to her before.” He said this occurred at about 3.00am.  He went on to say he knocked on the window and woke the complainant. He said “I would say she didn’t not invite me in, but she didn’t you know, so it’s a really fine line that one.” DBR went on to describe the complainant as being unfaithful during their marriage and passing STDs to him as a result. He said he had been prevented from having contact with his children and accused the complainant of Centrelink fraud. DBR also explained the complainant had caused him to suffer significant debt and he was now left with nowhere to live. When asked about what happened when he entered the house he said “we can talk about that another time.” The police officer then asked DBR if he maintained his earlier position that he did not wish to go with police and DBR said “Yeah”. Police then arrested him for “entering a premise with intent and sexual assault” and DBR responded “I did not have intent.” DBR was then transported to the Ipswich Watch House.
14. [14]
    Enroute, conversations with DBR were also recorded. DBR told police he was being medicated for depression. He was asked by officer Horton-Hunter about drug use and responded “Do I have to answer? Should I speak to a solicitor?” DBR then indicated he wished to contact his solicitor from ATSILS before talking further. In this recording the police officer referred to having located utensils that suggested DBR was a drug user, DBR’s erratic and fluctuating demeanour that day, and wondered whether it was appropriate to question him in those circumstances. Upon arrival at the watch house, DBR was given an opportunity to speak with a lawyer from ATSILS. Later, officer Cox observed DBR to be “highly erratic, speaking fast, have large pupils and profusely sweating”. DBR then declined to be interviewed by police.   

Relationship evidence

15. [15]
    The prosecution seeks to lead evidence of other conduct by DBR on his trial. In particular, this includes evidence of a phone conversation between the complainant and DBR on 7 October 2015. In this conversation, it is alleged DBR made threatening and sexualised statements, including that he wanted to have sex with the complainant, he knew when she was home alone, that he would “come in the night and fuck you”, police could not always protect her, and if she did not want her secrets known to others she would have to meet him “face to face”.  In addition, the prosecution seeks to lead evidence of events the following day, 8 October 2015. It is alleged DBR attended the complainant’s address, spoke to his children outside, approached the residence, but was told by the complainant to leave as he was in breach of a temporary protection order. It is alleged DBR spoke aggressively to the complainant and then left. Evidence of the events alleged on these dates comes from the complainant.

16. [16]
    The prosecution also seeks to lead evidence that in March 2016, DBR attended the address of the complainant’s boyfriend and sat outside on the footpath before leaving. The boyfriend’s residence is in the same street as the complainant. The complainant says DBR was wanting to speak to her boyfriend and was aggressive to her when she told him to leave. The boyfriend also told him to leave. The prosecution also seeks to lead evidence of DBR harassing the complainant on occasions at the children’s sporting events.

Submissions

Application by prosecution

17. [17]
    The prosecution application is to lead the evidence set out above at [15] and [16]. The prosecution argues this evidence is relevant evidence of the history of the domestic relationship, and admissible in proof of count 1, pursuant to s 132B of the Evidence Act. (Section 132B applies only to offences defined in chapters 28-30 of the Code. Count 1 is the only offence charged which falls within those chapters.) The prosecution argues the evidence is also admissible in proof of all counts as relationship evidence, consistent with Pfennig v The Queen.^[1] It is submitted the evidence is relevant to identify the offender and to rebut the claim the complainant was consenting to the alleged conduct. It is submitted the conduct reveals the true nature of the relationship, which would otherwise be seen in a vacuum and present the offences as occurring without context. It is also submitted the conduct shows the state of mind of the defendant at the time of the alleged offences.  
18. [18]
    DBR opposes the admission of the evidence. It is submitted the evidence is not relevant as required under s 132B. It is also submitted the evidence does not satisfy the test in Pfennig and is therefore not otherwise admissible in proof of any of the charges. In particular, DBR submits the evidence sought to be admitted is temporally disconnected from the charged allegations, does not involve any actual assault of the complainant, and is dissimilar to all of the alleged offending. It is submitted it is not capable of proving the occurrence of any other event and the probative value of the evidence is therefore slight, compared to the substantial prejudice to the defendant of the jury hearing of uncharged allegations.

Application by DBR to sever count 1

19. [19]
    In the event the relationship evidence is ruled admissible, DBR applies for an order that count 1 be tried separately from counts 2, 3, and 4. It is submitted count 1 is not properly joined with the other counts pursuant to s 567(2) of the Code because it is alleged to have occurred at a different time and place and is an offence of a different type. Count 1 is alleged in approximately mid-April 2016 at the residence of DBR at Camira; counts 2-4 are alleged on 6 and 8 May 2016 at the complainant’s residence at Springfield. Also, count 1 (assault occasioning bodily harm) is a charge of a different legal character than the other counts (burglary and sexual assault), which do not allege infliction of physical violence or injury. It is submitted therefore, consistent with R v Cranston,^[2] the necessary nexus or connection between the charges, is absent. In those circumstances, it is submitted, the offences do not form part of a series of offences of the same or similar character. In addition, it is submitted, the circumstances do not show the offences were committed in the prosecution of a single purpose. On that basis, or in exercise of the discretion conferred under s 597A, DBR submits an order that count 1 be tried separately to counts 2-4 should be made.

20. [20]
    The prosecution submits the charges are properly joined under s 567(2) because they are a series of offences of the same or similar character, or because they were committed in the prosecution of a single purpose. The prosecution argues all of the charges involve behaviour by DBR, directed against his ex-wife, over a relatively confined time frame, which has a sexual connotation. In this regard, the prosecution points to the allegation for count 1 that DBR masturbated in front of the complainant before assaulting her. It is submitted count 2 involved DBR stealing the complainant’s underwear whilst also returning underwear and nude photos; and counts 3 and 4 involved DBR masturbating in front of the complainant whilst holding underwear he had earlier stolen. It is submitted the circumstances demonstrate a nexus or connection between the various allegations and also show DBR engaged in a course of conduct. The prosecution submits a single trial of all counts should be held.

Application by DBR to exclude statements made to police 

21. [21]
    DBR also seeks to exclude statements made by him to police officers on 8 May 2016, when they attended his residence to execute a search warrant. It is submitted these statements should be excluded because the statements were obtained in circumstances that would make it unfair to use them against DBR, or they should be excluded in weighing of public policy considerations.

22. [22]
    It is submitted police breached various provisions of the Police Powers and Responsibilities Act 2000 (PPRA) when questioning DBR. Further, police should not have questioned DBR in circumstances where he expressed a belief he was obliged to answer police questions, contrary to s 431 of the PPRA. It is also submitted that without repeating the caution required by s 431, police should not have continued questioning, and/or referred to questioning as “private” or a “chat” since that gave the appearance the questioning was informal or off the record.

23. [23]
    In addition it is submitted, contrary to s 423 of the PPRA, police questioned DBR in circumstances where they knew, or ought to have known, DBR was under the influence of a drug. It is submitted, whilst at DBR’s residence, as observed by officer HortonHunter, DBR’s demeanour showed him to be under the influence of drugs. Also, in the course of the search, police found drug paraphernalia consistent with his having used drugs, and when transporting DBR to the watch house, questioned whether he was fit to be interviewed. The account of police officer Cox is to the effect that when seen by him at the watch house, DBR was clearly affected by drugs, such that he was not then fit to be interviewed. 

24. [24]
    DBR also submits police did not comply with s 420 of the PPRA which required they ask whether DBR identified as aboriginal. It was submitted police should have been alive to this because DBR’s mother, who is dark skinned and obviously Aboriginal, was present at the house. Also, it was submitted police did not follow the procedure, required by rule 22 of the Responsibilities Code, for asking a suspect to accompany police to a police station for questioning. It is submitted police should have cautioned DBR he could, but did not have to, voluntarily attend the station for questioning, but instead questioned him at the residence before simply arresting him.

25. [25]
    The prosecution submits it would not be unfair to admit the statements against DBR and that public policy considerations weigh in favour of them being admitted. The prosecution submits police did not breach any provisions of the PPRA or, if they did, it was unintentional and had no impact upon DBR speaking with police.

26. [26]
    As regards whether DBR understood his right to silence, the prosecution argues the full recording of the conversations demonstrates DBR well understood he did not have to answer questions but chose to speak with police. This includes that DBR expressly said he understood he did not have to speak to police, and he was present when his brother explained the caution and his mother said she understood it. In addition, the prosecution argues DBR was the one who initiated conversations about the allegations by asking to speak with police privately and away from the hearing of his mother and brother. In that conversation, DBR volunteered to police he would show them where to find items listed in the search warrant and engaged in discussing the complaints. In addition, the prosecution argues DBR demonstrated his understanding of his rights by twice telling police he would not go with them for an interview and declining to answer some questions. Later, whilst enroute to the police station, DBR said he wished to speak to his solicitor before answering questions about drug use. The prosecution argues police did not breach s 431 of the PPRA.

27. [27]
    The prosecution highlights it was DBR, not the police, who initiated the conversations inside the dwelling and he did so by asking to speak privately. The group then moved to another room. Accordingly, because the police had not commenced questioning, and DBR chose to speak away from his mother, it is submitted no breach of s 420 occurred. As regards the issue of whether DBR was questioned whilst under the influence of a drug, the prosecution asserts the circumstances show DBR was lucid and responsive, demonstrated he understood what was occurring, and clearly understood and exercised his rights. It is submitted DBR made a choice, in the presence of his mother and brother, to engage with the police, and in the course of doing so gave an exculpatory account of events. It is submitted therefore, police did not breach s 423 when speaking with DBR at the house, even though at a later time, DBR was evidently affected by drugs. The prosecution argues there was no breach of rule 22 of the Responsibilities Code given police explained they wished to question DBR at the police station and he flatly refused to go voluntarily for that purpose.

28. [28]
    The prosecution also submits it is relevant the account given by DBR to police was exculpatory in the sense that, although he admitted being at the complainant’s residence as alleged for counts 2 and 3, he denied entering without consent or doing anything wrong. He, in effect, alleged the complaints were false and gave details of the complainant making other false allegations against him in circumstances of their ongoing dispute concerning property matters and contact with children. The prosecution submits therefore, the statements against interest relied upon, namely attending the complainant’s residence, taking underwear, and returning underwear to her, appear reliable so that it would not be unfair to admit them against DBR. The prosecution also argues, assuming some impropriety by police, the circumstances are such that weighing of competing public policy considerations would result in the evidence being admitted.

Consideration

Application by prosecution

29. [29]
    The evidence which the prosecution seeks to lead concerning the prior conduct of DBR consists of statements made in a phone conversation on 7 October 2015, DBR visiting the complainant’s residence the next day, DBR visiting the residence of the complainant’s boyfriend in March 2016, and DBR’s harassment of the complainant at children’s sporting events. Not all of this conduct can be regarded in the same way.

30. [30]
    In the phone conversation of 7 October 2015, DBR is alleged to have expressed a desire to sexually engage with the complainant, regardless of her consent. He threatened to enter her residence at night when she was alone, and to divulge sexual secrets unless she met him in person. If accepted, this behaviour can be regarded as an attempt by DBR to dominate the complainant and gain her acquiescence for his own sexual gratification. On each of the three occasions identified in the counts charged, sexually explicit behaviour took place. On the occasion of count 1, the conduct was non-consensual, albeit at his residence not the complainant’s. On the occasion of count 2, DBR did not then engage in an overtly sexual act. However, this conduct was clearly for the purpose of facilitating DBR’s sexual gratification and his method was to demonstrate to the complainant that her resistance was futile.  On the occasion of count 3, DBR again entered the complainant’s residence without her consent and engaged in non-consensual sexual behaviour.

31. [31]
    The out of court statements by a defendant may become admissible, as an exception to the rule against hearsay, if they might reasonably be regarded as statements against interest.^[3] The statements allegedly made by DBR in the phone conversation of 7 October 2015 potentially fall into this category. Evidence is admissible if it is relevant. It is relevant “if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding”.^[4] Statements by a person in effect declaring an intention to commit an offence might readily be considered as relevant to whether the person later carried out the threat. I am satisfied the statements made by DBR in the phone conversation could reasonably be regarded by the jury as threats to carry out the type of behaviour alleged, namely to engage the complainant in sexual conduct. Therefore, the statements attributed to DBR in the phone call of 7 October 2015, are admissible in proof of all of the alleged offences on this basis. In that case it is not necessary to consider whether they are admissible under s 132B of the Evidence Act or otherwise admissible as evidence proving the true nature of the relationship. It will of course be necessary to direct the jury that in order to use the statements, or any of them, in this way, they must be satisfied they were made and are true. It may also be necessary to give directions restricting the way the statements may be used. In my view, the statements of 7 October 2015 are admissible.

32. [32]
    The other evidence relied upon does not involve any statements against interest. DBR allegedly attended the address of the complainant the day after the phone conversation and spoke with the couple’s children. He is then said to have approached the house in breach of a protection order and to have spoken aggressively to the complainant before leaving. On a date in March 2016, it is alleged he went to the address of the complainant’s boyfriend, in the same street as the complainant lived, and attempted to speak to her boyfriend. The complainant says he was aggressive towards her and stayed outside for a time before leaving. The other conduct alleged is some unspecified occasion or occasions upon which it is claimed DBR harassed the complainant at children’s sporting events. The question is whether any of this conduct is “relevant evidence of the history of the domestic relationship” between the complainant and DBR, or is otherwise admissible as relationship evidence. 

33. [33]
    The prosecution contends the evidence provides context to the alleged offences which otherwise will be considered in a vacuum. In R v Roach,^[5] Holmes JA concluded earlier acts of violence, demonstrating a propensity by the offender to assault the victim when intoxicated, amounted to relevant evidence of the relationship in accordance with s 132B. Her Honour likened the probative value of the specific propensity disclosed by that conduct with that of evidence of sexual interest often led in cases of sexual offences. Her Honour contrasted the evidentiary value of that specific propensity evidence with evidence of general criminal disposition, as described in Pfennig.^[6] General propensity evidence, not having specific relevance to proof of an issue, “lacks cogency yet is prejudicial” to a defendant.^[7]  The incidents described here may show ongoing animosity on the part of DBR towards the complainant and perhaps even towards her boyfriend. But that is a long way short of demonstrating a specific propensity to engage in sexualised non-consensual conduct against her. In my view, none of the other allegations, if accepted, are capable of providing any real assistance in determining the probability of the commission by DBR of the alleged offences. I conclude that evidence is not admissible pursuant to s 132B of the Evidence Act or as relationship evidence.

34. [34]
    Because I have concluded the evidence of the phone conversation is admissible, the application by the prosecution should be allowed only to that extent, although not on the basis sought.

Application by DBR to sever count 1

35. [35]
    DBR complains joinder of count 1 with counts 2-4 is not authorised under s 567(2) of the Code. If that submission were made out, the appropriate order would be to quash the indictment, pursuant to s 596, or alternatively to order the trial on count 1 be held separately from the other counts. Section 567(2) permits joinder only 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”. In R v Cranston, Macrossan J, in considering what is required, said:

It seems 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.^[8] 

This test has been subsequently applied. ^[9]

36. [36]
    As set out above, count 1 is alleged in about mid-April 2016, count 2 on 6 May 2016, and counts 3 and 4 on 8 May 2016; i.e. covering a period of about three weeks. Count 1 involves infliction of actual injury in assaulting the complainant, whilst counts 2 and 3 allege entry of her dwelling without her consent but with the intention to steal and sexually assault her.  Count 4 involves sexually assaulting the complainant. As noted above, all of the offences have a sexual connotation. Also, as noted above, it is open to conclude all of the offences were committed in the course of DBR’s declared intention to dominate the complainant for his own sexual gratification. 
37. [37]
    I am satisfied these are offences of the same or similar character, evidencing DBR’s aim of sexual exploitation of the complainant without her consent. Whilst the conduct involved in each offence is different, it shows ongoing engagement with the complainant in an overtly sexual way. The offences demonstrate a pattern of dominating behaviour by which DBR sought his own sexual gratification. For those reasons, I am also satisfied the offences are, or form part of, a series of offences committed in the prosecution of that same purpose. The admissibility of the evidence of the phone conversation of 7 October 2015, in proof of all counts, highlights the nexus between all offences. It also seems to me the evidence of each alleged offence is admissible in proof of the other alleged offences; in other words, the jury will be entitled to have regard to all of the evidence in determining the likelihood that each offence occurred as alleged. I am satisfied the counts are properly joined.
38. [38]
    Discretion exists, pursuant to s 597A of the Code, to order the separate trial of counts against a defendant where “the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence … or that for any other reason it is desirable …”.  In Sutton v The Queen,^[10] Brennan J said:

When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.^[11] 

39. [39]
    Although the present charges clearly have a sexual connotation, as set out above, all of the evidence is cross-admissible. The jury will of course be instructed, that in order to find an offence proved, they must be satisfied beyond reasonable doubt of the specific conduct relied upon. A warning against impermissible propensity reasoning will be necessary. However, such directions should not be overly difficult to comprehend or apply. The defence case, so far as is disclosed by the statements made to investigating police by DBR, is that consensual activity took place. In that context it may be suggested some alleged activity did not occur. None of this seems to me to raise conflicting defences or any other circumstance such as might embarrass or prejudice DBR in his defence if all the allegations are heard by one jury. I am not satisfied any basis exists to order count 1 be tried separately from the other counts.  

40. [40]
    I am satisfied count 1 is properly joined with counts 2-4 and no basis exists to quash the indictment.  Since I am not satisfied any basis exists to order the trial on count 1 be heard separately from counts 2-4, that application should be refused. 

Application by DBR to exclude statements to police

41. [41]
    DBR contends police breached a number of requirements of the PPRA, such that the statements he made on 8 May 2016 should be excluded from his trial as unfair or on public policy grounds. Although no submission was made that DBR’s statements were not voluntary, it was submitted he was interviewed when under the influence of drugs, without a support person being present, and his responses did not unequivocally show he understood he did not have to speak to police. Those submissions inevitably raise an issue as to voluntariness. In those circumstances, I am required to consider whether the statements of DBR have been proved to have been made voluntarily.^[12]

42. [42]
    The principles relating to the admission of confessional statements are well settled. An admission or confession of guilt is not admissible unless it is shown to be voluntary. A statement will be voluntary if it was made in the exercise of a free choice to speak or be silent. The prosecution bears the onus of establishing on the balance of probabilities that a confessional statement was voluntarily made.^[13] Where a confessional statement is voluntarily made, a court retains discretion to exclude it, if in all of the circumstances, it would be unfair to admit it against the defendant. In determining whether it would be unfair to admit the statement, the court must have regard to all of the circumstances in which it was made. The question is not whether the defendant was treated unfairly but whether reception of the evidence would be unfair. Dubious reliability of the confessional statement will be relevant to the exercise of discretion but is not necessarily determinative. Discretionary exclusion may be warranted where a confession might not have been made but for improper behaviour of investigators.^[14] A further basis upon which confessional statements might be excluded is in the weighing of competing public policy considerations. This requires balancing the public interest in the detection and prosecution of offenders and the need to protect individuals from unlawful or unfair treatment by those whose task it is to enforce the law.^[15] A fourth basis for exclusion of confessional statements exists where the probative value of the statement is outweighed by its prejudicial effect.^[16]

43. [43]
    The evidence shows DBR was at his residence with his mother and brother, apparently packing his things in order to move out, when police attended on the afternoon of 8 May 2016. Police were lawfully in attendance, pursuant to a search warrant, and detained those present for the purpose of the search. Police specifically explained to DBR, in simple terms, that he did not have to answer any questions they might ask him concerning items located in the search. Police insisted on DBR verbalising his understanding of his right not to answer questions. Although initially DBR said “Yes I do” when asked if he had to answer, the officer immediately corrected him. The officer then asked whether DBR understood he did not have to speak and he replied “I do”. The police officer next asked DBR’s brother to explain his understanding of his right and the brother said “I don’t have to say anything if I don’t want to”. DBR’s mother was then asked if she understood the warning and she replied “Yes”. All of that took place in the presence of DBR. I am satisfied DBR clearly expressed his understanding that he was not obliged to speak with police.

44. [44]
    The subsequent events also show DBR understood what was occurring and responded appropriately. Clearly he had read details in the search warrant. He asked to speak privately with police and volunteered where items could be found. He was able to articulate his claim that the allegations made by the complainant were false. DBR twice expressed his position that he would not voluntarily accompany police to the police station. Although police used the term “chat” when speaking with DBR away from his mother and brother, I do not regard use of that term as suggesting the conversation was informal or off the record. I am satisfied DBR did not regard the conversations in that way. The conversations that took place outside after the search were also as a result of DBR expressing his wish to say more to police. In that conversation DBR ultimately exercised his right to silence by declining to discuss events after he entered the complainant’s residence. I have listened to the recording of the conversations and do not regard them as indicating any reason for concern as to DBR’s state. He demonstrated the ability to comprehend what was occurring and safe guard his own position. The account he gave was largely exculpatory.

45. [45]
    Whilst enroute to the watch house, officer Horton-Hunter referred to DBR’s fluctuating and erratic state. DBR declined to answer questions regarding his drug use. When seen later by officer Cox, DBR was obviously affected by drugs. Drug use implements were apparently located during the search of DBR’s residence.  It is not possible on the material available to me to ascertain when DBR might have ingested the drugs which affected him. It seems to me to be open to conclude he may have done so prior to arrival of police and that the effects became obvious only later. Alternatively, he may have ingested drugs after arrival at the watch house. None of the circumstances demonstrates to me that whilst at his residence DBR was so affected by any substance as to have impaired his capacity to understand what was occurring and respond accordingly. I am satisfied DBR was able to, and in fact did, exercise a free choice to speak with police. I am satisfied he did so because he was intent on giving his side of the story, perhaps to persuade police the allegations were not true. I find DBR was able to, and did exercise his rights, by refusing to go voluntarily with police and declining to answer some questions. I am satisfied his statements were made voluntarily. 

46. [46]
    Complaint is made that police breached various provisions of the PPRA. In particular, it is asserted they did not comply with s 431, which required they advise DBR he did not have to answer any questions. I have dealt with this issue in considering the voluntariness of DBR’s statements. I conclude police did comply with that provision and the course of events did not result in any disadvantage to DBR, who well understood and exercised his rights. Complaint is also made that police did not comply with s 423 of the PPRA, which required police to refrain from speaking with a person they suspected was under the influence of drugs. As explained above, DBR did not seem to be under the influence of drugs during the recorded conversations, and DBR appeared well able to look after his own interests. There is no evidence police knew for certain of DBR being affected by drugs until he was in the watch house. Police do not suggest they suspected that to be the case whilst at the house. I see no basis upon which police must or should have concluded DBR was then apparently affected. In those circumstance, I conclude police did not breach the requirements of s 423 of the PPRA.

47. [47]
    It is also asserted, pursuant to s 420 of the PPRA, police should have delayed questioning DBR until they had advised a legal service he was in custody and they wished to question him, and also ensured a support person was present for questioning. As made clear above, the statements made by DBR occurred after he had been detained for the search but before he was arrested for the offences. Further, any questioning resulted because DBR insisted on speaking. In addition, DBR insisted on speaking away from his mother and brother, either of whom might have been a suitable support person for questioning. Arguably, the requirements of s 420 do not apply in these circumstances because DBR was not in custody for the offence until he was arrested and no questioning of him occurred after that time. But assuming the section has application, it was not the police officers’ decision to question DBR, rather, it was his decision to speak to police. Police explained his right to contact a lawyer and DBR’s later statements referring to his solicitor show he was aware of this. I conclude the police did not breach the obligation to contact a legal service while at the house to carry out a lawful search. Further, there was no breach of a requirement to have a support person present in circumstances where DBR insisted the conversation be in private.
48. [48]
    It is also argued police did not comply with rule 22 of the Responsibilities Code which required they ask DBR to attend for questioning. As set out above, DBR twice refused to go with police when told they would like to interview him at the police station. The circumstances demonstrate DBR well knew he did not have to accompany police and exercised his right not to. I am satisfied police did not breach the Responsibilities Code in this respect. 

49. [49]
    As is obvious, DBR admitted attending the complainant’s residence on the occasions alleged as counts 2 and 3, and taking her underwear. However, he maintained he did not enter or stay in the dwelling without consent, and denied committing any offence. The prosecution seek to lead the evidence of the admissions to entering the house and taking property as statements against interest. These statements are capable of being regarded as admission or confession to some elements of the offences.^[17] The prosecution will no doubt argue the exculpatory parts of the statements should be rejected by the jury. In the circumstances here, there can be no dispute the portions of the statements relied upon by the prosecution as admissions are in fact reliable. Those statements are an acceptance of that part of the complainant’s account alleging DBR’s presence in the dwelling and his taking of her property. To that extent, there is no basis to doubt the reliability of the statements made by DBR during the search of his residence. 

50. [50]
    As I have explained, I conclude the police here acted in accordance with the law in speaking with DBR on 8 May 2016. I find the police did not act in breach of the provisions of Chapter 3 of the PPRA, or of the requirements of the Responsibilities Code. I am satisfied DBR chose to speak with police because he saw that as being to his advantage. The circumstances do not show he was then so affected by drugs as not to understand what was happening and remained well able to look after his own interests. I am also satisfied there was no conduct by police which disadvantaged DBR. I conclude police treated DBR fairly and no circumstance arises which would render it unfair to admit his statements against him on his trial. Since no impropriety by police is demonstrated, it is unnecessary to consider whether the circumstances warrant exclusion of the statements on public policy grounds.

51. [51]
    In light of these conclusions, the application to exclude from DBR’s trial statements he made to police on 8 May 2016, should be refused.

Orders

52. [52]
    The orders of the court are:

1. Evidence of the telephone conversation of 7 October 2015 is ruled admissible.

2. Other “relationship” evidence is ruled inadmissible. 

3. The application by DBR that count 1 be tried separately from counts 2-4 is refused.

4. The application that statements made by DBR to police on 8 May 2016 be excluded from evidence at his trial is refused.