R v Cook[2018] QDCPR 60

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The accused is charged with the following offences:

Count 1  That on 21 December 2016 at Wacol he unlawfully and indecently assaulted the complainant;

Count 2  That on 21 December 2016 at Wacol he unlawfully detained the complainant in a car against her will;

Count 3  That on 21 December 2016 at Wacol he wilfully and unlawfully damaged a mobile phone.

2. [2]
   The Crown intends to lead evidence that the accused indecently assaulted another woman on 19 October 2002. The accused pleaded guilty to that offence in the District Court at Brisbane on 15 December 2003. Counsel for the Crown submitted that the evidence of the earlier offence of sexual assault is probative of a fact in issue in the trial and is admissible to demonstrate the modus operandi of the accused.^[1]

3. [3]
   Counsel for the accused submitted that the previous offence involved significantly more serious conduct and that there is insufficient similarity between the two events to justify the admission of the evidence.^[2]

The facts in relation to the present offences

4. [4]
   The complainant is a Vietnamese woman. She did not previously know the accused. She was 27 years of age at the time of the alleged offences.

5. [5]
   At approximately 11:30am on 21 December 2016 the complainant parked her car at the Inala Civic Centre. As she was walking through the car park she walked past the accused who said hello to her in Vietnamese. The complainant was surprised that a Caucasian male could speak Vietnamese.

6. [6]
   The complainant said that the accused told her that he helped Vietnamese people write forms. She said that he introduced himself as David. She requested the accused to assist her with a letter from Centrelink. It is not in dispute that the accused assisted the complainant with paperwork.^[3]

7. [7]
   According to the complainant’s statement to the police, the accused told her that she had to obtain a bank statement, a statement from her employer and a tax return. The complainant said that she asked the accused how she could get her mother to come to Australia on holidays. The accused said that he would assist her with that. The complainant suggested that they sit down at McDonald’s and have a coffee. She said that the accused told her that McDonald’s at Inala was very noisy and suggested going to McDonald’s at Oxley. The complainant said that she would need to get her car. The accused offered to drive her there.

8. [8]
   The complainant got into the accused’s car, which she described as an old white car. They drove to McDonald’s at Oxley. They were there for about one hour.

9. [9]
   The complainant alleges that after a while the accused suggested that he take her back to Inala. However, the complainant alleges that she was driven to Darra. The complainant asked why she was not being taken back to Inala, and the accused replied “I have a new thing. I have a good place that’s quiet for talking.”

10. [10]
    The complainant alleges that she was driven to Darra where the accused parked in a quiet street. He then opened the back door and got into the back seat. She alleges that the accused then asked her to sit in the back seat with him because it would be easier to fill out a form.

11. [11]
    The complainant alleges that the accused then asked why she was separated from her husband. She says that the accused then told her that he had helped her a lot and that he found her beautiful. He then said “I would like to kiss you softly”. She asked what he meant and he replied “It means I kiss you”.

12. [12]
    The complainant refused but the accused moved closer to her. She says that he then grabbed her, at which point she opened the car door and called for help. The accused then leaned over her and closed the car door. The complainant says that she grabbed her mobile phone and tried to make a call, but the accused took it from her and threw it to the ground, which damaged it.

13. [13]
    The complainant alleges that she tried to climb through the open car window but the accused grabbed her leg. The complainant says that she called out for help and kicked backwards. The accused let go of her, and she managed to get away by climbing through the window.

14. [14]
    The complainant approached a car containing two council workers and told them about what had happened. The accused drove past where the complainant was standing with the council workers and stopped to offer her a lift back to Inala or call a taxi for her. The complainant declined the offer. The council workers made a note of the vehicle registration number.

The facts in relation to the offence of sexual assault committed on 19 October 2002

15. [15]
    The accused was charged that on 19 October 2002 at Brisbane he unlawfully and indecently assaulted the female complainant. He pleaded guilty to the offence and was sentenced in the District Court at Brisbane on 15 December 2003.^[4]

16. [16]
    The facts outlined by the Crown prosecutor at sentence were that the female complainant and the accused were strangers. The complainant was 18 years of age; the accused was 34. The complainant had spent the evening of 18 October 2002 and the early morning of 19 October 2002 out in the city. By 3:30am she was, to some extent, affected by alcohol. At about that time the complainant decided to walk to the home of a friend at Woolloongabba. She had walked a short distance down Adelaide Street when she saw the accused in his car waving at her. The complainant spoke to the accused and he offered a lift home. She accepted the offer.

17. [17]
    After some general conversation the complainant realised that she did not recognise the streets they were driving through. The accused indicated that he knew where he was going. He turned into an industrial area. He stopped the vehicle and immediately jumped across the front seat towards the complainant. Her first reaction was to jump out of the vehicle. She grabbed at the door handle, but was overpowered by the accused. The complainant described the accused grabbing at her and trying to pull her hair. She was fighting back in an attempt to keep the accused off her. The complainant said that she was hitting the accused with her hands and screaming for help. The accused then grabbed her hair. The complainant said that the next thing she recalled was that her head was down behind the driver’s seat facing the floor. The accused said “If you don’t shut up, I’m going to kill you.” The complainant tried to stop the accused by claiming that she had AIDS. However, the accused said “I want to come in your arse.” The complainant tried to reason with the accused, asking him to let her go so that they could talk. However the accused refused and continued to hold the complainant down.

18. [18]
    The accused then pulled the complainant’s pants down. The complainant said “You can do whatever you want to the outside of me, but don’t stick anything in me. Just get it over and done with and just let me go.” The complainant said that she would not cause a fuss and that she would just go home. The complainant said those things because she said that she genuinely feared for her life.

19. [19]
    In the course of the attack the complainant had the presence of mind to bite off a piece of her fingernail which she spat onto the floor of the car.

20. [20]
    At some point the complainant realised that the accused had his pants down. The accused masturbated behind the complainant and in the course of doing that the complainant felt his penis strike her buttocks.

21. [21]
    The accused suddenly stopped what he was doing and said “This is really wrong. This is really wrong.” The accused then offered the complainant a lift home. She refused the lift and gathered her belongings, got dressed and left. The accused called out “You’re not running, are you?” As the complainant left she noted the majority of the registration number of the vehicle.

22. [22]
    The complainant then told two girls who were walking nearby that she had been attacked. She then reported the matter to police who were conducting random breath testing nearby. While she was speaking to the police the accused’s vehicle drove past. The police attempted to pursue him but they were unsuccessful.

23. [23]
    Later that morning the accused contacted the police and stated that he wished to speak to them about an incident. He was then interviewed. The version provided by the accused was that he got lost when driving the complainant home. He said that the complainant tried to get out of the vehicle but the door jammed. He claimed that he leaned over to open the door and the complainant then bit him twice and burnt him with a cigarette. He said that he then tried to stop the complainant from biting him and she left the car. He claimed that it was all a misunderstanding. He denied pulling the complainant’s hair, or putting her head down between the seats, or pulling down her pants.

24. [24]
    At the sentence hearing, counsel for the accused stated that his instructions were that the complainant had asked the accused for a lift “…because there were some guys acting like hooligans” in Adelaide Street. Counsel stated that the accused then drove towards Woolloongabba. The vehicle was stopped for a random breath test on the way and the accused was allowed to continue driving. He then got lost in the back streets of Woolloongabba, apparently because the complainant’s consumption of liquor was such that she was not able to provide directions. It was submitted that the accused believed that the complainant “…freaked out because he was driving slowly.” It was conceded that the accused moved across the complainant to open the door and that “he then saw that (the complainant’s) skirt was higher up her leg and bad thoughts crossed his mind.”^[5]

25. [25]
    These submissions led the sentencing judge to conclude that:

“Although your initial intentions may have been honourable, I am satisfied that by the time you stopped the vehicle you intended to sexually assault the complainant.”^[6]

The submissions for the Crown

26. [26]
    Ms Ball, who appeared for the Crown, submitted that the offending by the accused on 19 October 2002 satisfies the test for admissibility of similar fact evidence in Pfennig v The Queen^[7] because there is no reasonable explanation for it other than that the accused is also the perpetrator of the alleged sexual assault of the complainant on 21 December 2016.^[8] It was submitted that the prior offence has a particular signature of striking similarity which would rationally affect the assessment of the probability of the existence of the facts in issue in the present trial.^[9] It was submitted that the evidence demonstrates a pattern of conduct which is of such high probative value as support for the present complainant’s evidence as to make it admissible despite its potential prejudicial effect.^[10]

27. [27]
    Ms Ball submitted that the following similarities between the circumstances of the present allegations and the previous offending justified the admission of the evidence:^[11]

• Both incidents involved female complainants;
• On each occasion the complainant was younger than the accused. The complainant in respect of the offence on 19 October 2002 was 18 years of age. The complainant in respect of the present offences was 27 years of age. The accused was 34 years of age at the time of the offence on 19 October 2002. He was 48 years of age at the time of the present offences;
• The complainants each had a degree of vulnerability. The first complainant was intoxicated and the other complainant was from a non-English speaking background;
• The accused approached each complainant offering assistance. He offered the first complainant a lift home. He offered the second complainant assistance filling out forms;
• The accused used his own vehicle to drive each complainant to another location;
• The accused drove both complainants to secluded areas and parked his vehicle.
• The accused used force to overcome resistance to his sexual advances. In respect of the offence on 19 October 2002, the accused jumped across the front seat at the complainant. She grabbed the door handle but was overpowered. The accused grabbed at her but she fought back. The accused grabbed her hair and put her head down behind the driver’s seat holding her down. In respect of the present allegations, after the complainant refused, the accused grabbed her and she opened the door. The accused leaned over and closed the car door. When she started to climb out the window the accused grabbed her leg;
• On each occasion the accused offered to drive the complainant elsewhere. He offered to drive the first complainant home and he offered to drive the present complainant back to her car.

The submissions for the accused

28. [28]
    Mr Benjamin, who appeared for the accused, submitted that the evidence of the offence on 19 October 2002 does not possess the high degree of probative force required for admission. He submitted that there are four factors for consideration:^[12]

• The relevance of the evidence in the proceeding;
• The probative value of the evidence;
• Whether the probative value of the evidence is so strong as to outweigh the prejudicial effect of it; and
• Whether there is a reasonable explanation for the evidence consistent with the innocence of the accused.

29. [29]
    Mr Benjamin submitted that there is an insufficient level of similarity between the previous offence and the present charges to justify the admission of the evidence as evidence of a modus operandi.^[13]

30. [30]
    It was submitted that the previous offence involved significantly more serious conduct by the accused. It was pointed out that on the occasion of the offence on 19 October 2002, the accused removed the complainant’s clothing and his own clothing. He masturbated himself in such a manner that his penis came into contact with the complainant’s skin. He threatened to kill the complainant and told her that he wanted to ejaculate inside her rectum.^[14]

31. [31]
    It was submitted that the similarities are limited to the type of offence and the fact that they occurred in a car in a somewhat secluded area.^[15]

32. [32]
    It was submitted that such limited similarity gives the evidence little in the way of probative value yet it is obviously highly prejudicial.^[16] Mr Benjamin submitted that for those reasons the similar fact evidence should not be admitted as evidence of the modus operandi of the accused.^[17]

The applicable principles

33. [33]
    The test for the admissibility of propensity evidence or similar fact evidence established by Pfennig v The Queen,^[18] and reaffirmed in Phillips v The Queen,^[19] requires that the evidence has a strong degree of probative force.^[20] The significant potential prejudice of propensity evidence means that admissibility depends on there being no reasonable view of it consistent with the innocence of the accused.^[21] The evidence must have a specific connection with the commission of the offence charged.^[22] The similar fact evidence does not require features of striking similarity or underlying unity, although the evidence will usually lack the necessary degree of probative force if it does not have those features.^[23]

34. [34]
    The similar fact evidence must be viewed in the context of the prosecution case.^[24] The question of admissibility must be determined on the assumptions that the similar fact evidence would be accepted as true and that the prosecution case may be accepted by the jury.^[25]

35. [35]
    The probative value of disputed similar fact evidence is less than evidence that is not in issue.^[26]

Consideration

36. [36]
    There is a period of approximately 14 years between the offence of sexual assault on 19 October 2002 and the present offences on 21 December 2016. The length of time between the events does not necessarily mean that the earlier offence does not possess the requisite degree of probative force. In R v Gregory^[27] the appellant was charged with sexual offences against a 14 year old boy that allegedly occurred in February 2009. The Crown was permitted to lead similar fact evidence relating to sexual offences committed upon an 11 year old boy in 1993. The appellant had pleaded guilty to those offences in March 1994. Muir JA, with whom White JA and Martin J agreed said:

“[24] There were aspects of both sets of offences which revealed a “striking similarity” or a “pattern” or an “unusual feature”. In both cases, the mature aged appellant struck up a friendship with a male child in such a way that the appellant engineered that the child soon shared his bed in the evening. In both cases, massage was used by the appellant as a pretext. In the 1993 offences, it directly paved the way for sexual handling. In this case, the massage was employed as part of a sexual grooming process. There were necessarily some differences between the two sets of offences. In this case, a more obvious and coercive approach was deterred by the presence of Ms Smith.

…

[27] The foregoing comparison demonstrates that the evidence of the 1993 offences did rather more than merely establish the appellant’s general propensity for sexually offending against boys. The connection between the evidence in respect of the 1993 offences and the other evidence relied on by the prosecution in this case is sufficient to warrant the admission of the former. The evidence in respect of the 1993 offences had “a really material bearing on the issues to be decided”, and supported an inference that the appellant was “guilty of the offence charged, and [was] open to no other, innocent, explanation.”  (citations omitted)

37. [37]
    If the propensity evidence supports an inference of guilt of the offences charged and is open to no reasonable view of the evidence consistent with the innocence of the accused, the fact that there are some differences in the offending does not preclude its admission. In R v Brown,^[28] the appellant was convicted of burglary, grievous bodily harm, rape and stealing. The appellant broke into the home of the 61 year old complainant on 28 April 2008. She was attacked and raped. When apprehended the appellant had two pairs of underpants that belonged to the complainant. The trial judge admitted evidence of an assault by the appellant on another woman on 18 March 2006. The appellant pleaded guilty to common assault arising from the circumstances of that incident. The complainant was a female described as being of mature age who lived alone. She heard noises at the front door and went to investigate. She saw a person leaning against the wall of her residence next to the screen door to the kitchen. She opened the door to get a better look and was grabbed by the left arm. The appellant attempted to pull her out the door. He was rubbing his clothing over his genital area. The complainant called for help, managed to free her arm and pushed the appellant away with her walking frame. The appellant backed off and walked away.

38. [38]
    The appellant argued that the evidence in relation to the assault on 18 March 2006 lacked the necessary degree of probative force because of dissimilarities in the surrounding circumstances including the fact that the subject offences involved a violent rape whereas the other offence was a simple assault. It was also argued that the subject offences occurred inside the complainant’s residence whereas the offence of common assault occurred outside. The Court of Appeal dismissed the appeal. Muir JA, with whom McMurdo P and Chesterman JA agreed, said:

“[16] Although the subject offence involved considerable violence and actual rape, and the earlier offence involved a relatively slight degree of violence and no rape, the more significant feature of the two offences, in the circumstances of this case, was that the attack was sexually motivated. It may be readily inferred that the earlier attack would have escalated in its severity had the victim not had the strength of character and presence of mind to act as she did.

[17] The fact that one assault was inside the house and one outside was simply a function of where the assailant was in relation to his victim when the assault commenced. The frustration of the appellant's attack in the earlier offence ensured that there was no "trophy". Counsel for the respondent made the point that it is a reasonable inference that noise was deliberately made prior to both attacks with a view to the assailant being able to make sure that his victim was alone. The silence of the assailant also appears to me to provide some basis for a conclusion that there are "striking similarities" or similar "unusual features" of both attacks.”

39. [39]
    As was pointed out by Fraser JA in R v Little:^[29]

“[32] It is not ordinarily to be expected that a modus operandi will involve behaviour by an offender which is identical in every single respect upon each occasion of offending. Some changes are virtually inevitable as a result of differing circumstances, such as the unexpected behaviour of an intended victim as occurred in Incident 3.”

40. [40]
    The evidence in relation to the circumstances of sexual assault committed by the accused on 19 October 2002 reveal a distinctive pattern of behaviour. When viewed in the context of the prosecution case, there is a strong underlying pattern in the conduct of the accused amounting to a modus operandi.

41. [41]
    In each instance the accused approached females offering assistance. The complainants were vulnerable in the sense that the first complainant was intoxicated and the second complainant was from a non-English speaking background and required assistance with a Centrelink form.

42. [42]
    On each occasion the accused offered the complainant a lift in his vehicle which the complainants accepted. The accused drove to a secluded area on each occasion.

43. [43]
    On each occasion the accused used force to overcome resistance. After the offending the accused offered the complainants a lift.

44. [44]
    The differences between the two incidents do not undermine the underlying unity in the conduct of the accused. The propensity evidence has substantial cogency in the prosecution case and therefore has significant probative force. In my view the probative value of the evidence exceeds its prejudicial effect.

45. [45]
    I therefore conclude that the evidence in relation to the circumstances of the offence of sexual assault committed by the accused on 19 October 2002 is admissible.

46. [46]
    The manner in which the evidence is adduced can be determined by the parties. In R v Little^[30] a formal admission was made pursuant to s 644 Criminal Code.  Alternatively the relevant parts of the transcript of proceedings on 15 December 2003 would be admissible: R v Delgado-Guerra.^[31]