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The Queen v TJM QDCPR 85
DISTRICT COURT OF QUEENSLAND
R v TJM  QDCPR 85
District Court at Cairns
12 December 2018 (ex tempore)
12 December 2018
CRIMINAL LAW – PROCEDURE – PRE TRIAL HEARING – where single defendant charged with multiple counts against two complainants – severance of indictment – whether charges properly joined – whether charges should be severed owing to impermissible prejudice
Criminal Code 1899 (Qld), s 567(2) and 597A
R v Cranston  1 QD R 159
Pfennig v R (1995) 182 CLR 461 R v Brown  QCA 16
Phillips v R (2006) 225 CLR 303
BBH v R  245 CLR 499
R v CBM  1 QD R 165
R v Nibigira  QCA 115
R v Bauer (2018) 359 ALR 359
R v Watson  QCA 82
CA Cuthbert for the Applicant
N Friedewald for the Respondent
Queensland Lawyers for the Applicant
Cairns Office of the Director of Public Prosecutions for the Respondent
- The defendant is charged on a single indictment with six counts involving two complainants. The complainants are his younger sisters, B and A. Counts 1 and 2 relate to B, charging indecent treatment of a child under 16, under 12, and common assault, respectively. Count 1 alleges that on a date unknown between 31 December 2012 and 1 January 2014, at Cairns, the defendant unlawfully and indecently dealt with B, a child under 16 years, who was also under 12 years. Count 2 alleges that within the same date range, that is 31 December 2012 and 1 January 2014, at Cairns the defendant unlawfully assaulted B.
- Counts 3 to 6 relate to A, charging three counts of rape and one count of maintaining a sexual relationship with a child. The maintaining count, which is count 6, relies upon counts 4 and 5, as well as an unknown number of uncharged acts. It does not rely upon count 3 because it relates to the period after the defendant turned 18 years of age. Count 3 alleges that on a date unknown between 31 May 2013 and 15 July 2013, at Cairns, the defendant raped A. Count 4 alleges that on an unknown date between 31 August 2017 and 3 October 2017, at Cairns, the defendant raped A. Count 5 alleges that on an unknown date between 29 September 2017 and 10 October 2017, at Cairns, the defendant raped A. Count 6 alleges that between 24 October 2015 and 10 October 2017, at Cairns, the defendant, being an adult, maintained an unlawful sexual relationship with A, a child under 16 years.
- The defendant submits that the charges have been impermissibly joined on the indictment. He makes a pre-trial application pursuant to section 590AA of the Criminal Code to sever counts 1 and 2 relating to B, from counts 3 to 6 relating to A. Further or alternatively, he submits that if the charges have been validly joined, the Court should exercise its discretion under section 597A of the Code to order separate trials for each complainant to prevent prejudice to the defendant.
- The Crown disputes both contentions. It contends that the charges are properly joined and there is no unfair prejudice arising from them being tried together.
- It is necessary to consider the alleged circumstances of the offending. The Court was provided with the transcripts of the police interviews of both complainants and a draft Schedule of Facts, as well as detailed written submissions from both parties.
- The circumstances of the alleged offending are summarised in the Schedule of Facts. The complainants are the defendant’s younger sisters and lived with him and their family in Cairns. Both complainants shared a bedroom. The facts of count 1 are these. On a date unknown between 31 December 2012 and 1 January 2014, the defendant is said to have entered the room of the complainants at night. B was asleep. She was wearing underwear and a crop top. The defendant approached B and touched “her thing”, close to her vagina. That forms count 1. This caused B to wake. She discovered the defendant lying on the ground adjacent to her bed. She told the defendant she didn’t want him to touch there, to which he responded, “Okay”, and crawled out of the room. At that time the defendant was 15 to 16 years old. B was a child of seven to eight years old.
- On the next night, B says the defendant, again, entered the shared room of the complainants. B was asleep with her bedcovers pulled over her. The defendant approached B and touched her arm over her sheet. He began moving his hand down her arm. That forms count 2. B woke and pushed the defendant’s hand away before telling him she didn’t want him to “touch it.” The defendant was, again, lying on the ground adjacent to B’s bed. Again, he crawled out of the room.
- A alleges that on a date unknown between 31 May 2013 and 15 July 2013, the defendant entered the shared bedroom of the complainants. A was asleep in her bed. H approached A and pulled down her shorts and underwear while she was asleep. The defendant then inserted his finger or fingers into her vagina, causing her to wake up. That forms count 3. A picked up a torch and discovered the defendant on the ground by B’s bed. He stated he was looking for his torch, before leaving the room. The defendant was 15 years old at that time. A was nine years old.
- On a date unknown between 31 August 2017 and 3 October 2017, the defendant is alleged to have entered the shared room of the complainants again. A was asleep in her bed. A woke after hearing a noise and went to get a glass of water from the kitchen before going back to sleep. The defendant approached A, placed his hand underneath her shorts and underwear, and inserted his finger or fingers into her vagina. That forms count 4. A woke and recognised the defendant’s hand pull away. When questioned by A, he remarked, “oh, nothing, just looking for something on the floor”. He then crawled out of the room. At that time the defendant was 19 years old. A was 14.
- Count 5 relates to a date unknown between 29 September 2017 and 10 October 2017. A says she fell asleep on the lounge room couch watching television at night. The defendant approached her while she was asleep and pulled her pants and underwear down slightly. He then inserted his finger or fingers into her vagina. That forms count 5. A woke and recognised the defendant’s arm pull away. The defendant ran towards his bedroom. At that time the defendant was 19 years old. A was 14.
- On 10 October 2017, A disclosed to a friend that the defendant had been inappropriately touching her for some time. That information was provided to police. Both A and B recorded section 93A statements the same day disclosing the offending conduct. A disclosed further uncharged acts. She said that between the date of the first incident that she reported, which occurred in mid-2013 and the last incident in count 5 which is said to have occurred in September or October 2017, the defendant had touched her in a similar way approximately 30 to 40 times, usually while she slept. The defendant became an adult on 25 October 2015. Count 6 alleges that he unlawfully maintained a sexual relationship with A while he was an adult in the period between 24 October 2015 and 10 October 2017.
- On 10 October 2017, the defendant voluntarily attended the police station and participated in a record of interview in which he denied all the offending.
- The first issue is whether the charges have been impermissibly joined on the indictment under section 567(2) of the Criminal Code. The relevant section and principles applicable in determining that part of the application were not in dispute between the parties. The parties accepted that it was only the second line of section 567(2) which was relevant here. That is, the part that provides that charges for more than one indictable offence may be joined in the same indictment against the same person if the charges are:
…or form part of, a series of offences of the same or similar character.
- With respect to the meaning of the expression “a series of offences of the same or similar character”, the relevant principles were set out by the Court of Appeal in R v Cranston. There the court said:
It was said that the further requirement of a “series” was that some nexus should be involved between the offences…
It seems clear that the requirement that nexus should exist is an additional requirement upon the requirement of “similar character”, and, however imprecise that 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.
- In considering the issue in section 597A, the Court must not have regard to the possibility of collusion operating between complainants as a basis for the separation of the counts: section 597A(1AA).
- The defendant relies upon the fact that the counts themselves are not identical. Some of the counts are for different offences or have a different legal character. While that is true, all of the counts except count 2, are, on their face, offences of a sexual nature. And when the factual circumstances of count 2 are considered, it is clear that it is closely connected to count 1 in time, place and other circumstances. It is also conceded that the touching alleged for count 2 has a sexual connotation or nature. The defendant’s solicitor, appropriately in my view, conceded this on the hearing of the application.
- The defendant also concedes that there are a number of similarities between the circumstances of the offences. In particular, he refers to these facts: the offences are alleged to occur at night; counts 1 and 2 involving B and counts 3 and 4 involving A, are said to occur in the shared bedroom of the complainants’ family home; the allegations are said to occur while the complainants are asleep; in each case the applicant or defendant desists when the complainants are roused; the complainants are sisters of the defendant; and both complainants are children.
- The defendant, however, relies upon a number of dissimilarities or differences in the circumstances of the offences. Those are set out at paragraph 7 of the defendant’s written submissions. Although many dissimilarities are listed, in that paragraph the defendant accepts that the dissimilarities may be grouped into several categories.
- First, the period of time over which the offending occurred. In relation to this, the offending against B is over a two day period, whereas it is said the offending against A occurs over a four year and four month period.
- The second dissimilarity relied upon is the place in which the offending occurred. Although it all occurred in the family home, the defendant relies upon the fact that count 5 is alleged to have been committed in the lounge room, rather than in the complainants’ shared bedroom. A number of the unparticularised and uncharged acts encompassed in count 6 also occurred in the lounge room rather than in the bedroom.
- The third dissimilarity relied upon is that child A alleges that the defendant sometimes strangles her, whereas there is no allegation of this kind from child B.
- The next dissimilarity relied upon is that there are no uncharged acts alleged by child B against the defendant, whereas there are for child A.
- The next dissimilarity relied upon is that the offending did not always occur in the presence of the other child, although it sometimes did. In particular, counts 1, 2 and 3 are alleged to have been committed with the other complainant present in the bedroom.
- The next area of dissimilarity relied upon is the complainants’ accounts about where the defendant was located in the bedroom when the complainant awoke and how he left the bedroom.
- The final dissimilarity relied upon is in the nature of the touching. Child B alleges that the defendant touched her on her private parts, which she later clarifies as her vaginal area, that is over her underpants, whereas child A alleges digital penetration on a number of occasions, and that the defendant pulled her pants and underpants down.
- The prosecution submits that there is both similarity in character and a clear nexus between the offences. It relies upon the following matters to demonstrate that. They are set out at paragraph 8 of the respondent’s outline of submissions.
- First, that all of the offending is of a sexual nature and is alleged to have been committed against children. It qualifies that by reference to count 2, but as I have already pointed out, although that is a common assault, it is conceded that the nature of the touching was sexual.
- Second, that the complainants are sisters and the applicant defendant is their older brother. Third, that there is an overlap in time between when counts 1, 2 and 3 occurred. That is, count 3 involving complainant A is alleged to have occurred squarely in the middle of the time period alleged for counts 1 and 2 involving complainant B.
- In addition to that, there is evidence of between 30 and 40 uncharged and unparticularised offences by the defendant against A. The period over which those are said to occur begins in mid-2013 with count 3 and continues for more than four years until late October 2017. During that time, A’s evidence is that the defendant touched her on the vaginal area with penetration. Her evidence is that it happened when she fell asleep in the lounge room or when the defendant came into her bedroom and that on those occasions, he touched her on her private parts in the same way. Therefore, it is said that there is a significant overlap between the offences in a temporal sense.
- Fourth, the prosecution relies upon the fact that the complainants are close in age. B was seven to eight years old at the time of counts 1 and 2. A was nine years old at the time of count 3.
- Fifth, that each offence occurred in the family home.
- Sixth, that each offence occurred late at night or in the early morning when the complainants were asleep.
- Seventh, that the defendant does not persist in his offending once the complainant wakes up.
- Eighth, that in relation to the offences occurring in the bedroom, both complainants describe the defendant sitting or lying on the floor.
- Next, both complainants describe the defendant crawling on the floor of the bedroom on at least one occasion.
- Next, the offending in the bedroom occurs on occasions while the other complainant is present in the room. I would add to that list that each complainant wakes to find the defendant in the room with her.
- The defendant, in particular, relies upon the differences in the way the complainants described how the defendant was located when they became aware of him in the room, and how the defendant left the room. He also points out that the complainants do not describe that in identical terms in their police interviews. In my view, the fact that the complainants did not use identical language is unsurprising, particularly given their young age at the time of the alleged offending and the period of time that had elapsed between then and when they were interviewed. In my view, it enhances the credibility of their accounts because they have, in fact, used their own words. That suggests their accounts are more likely to be the product of their own independent recollection.
- In addition, there is one matter in particular which, in my view, is striking about each of the accounts of the alleged offending in the bedroom. That is that they both refer to the defendant sitting or lying on the floor and crawling on the floor of the bedroom on at least one occasion. That, in my view, is a peculiar detail common to both complainants’ accounts.
- Based on the similarities I have identified, I am satisfied that the offences do form part of a series of offences of the same or similar character, and that there is some nexus between the offences in their time, place and other circumstances, as well as their legal character.
- I turn now to consider the issue of similar fact evidence because cases involving alleged sexual offences are particularly to give rise to prejudice. If an accused is charged with multiple sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. Therefore, the second issue, then, is whether the evidence on counts by one complainant would be admissible on the counts involving the other complainant.
- The Crown submitted that the evidence of each complainant was cross-admissible as so-called similar fact evidence, and, therefore, no unfair prejudice arises from having both charges heard together. The principles in the High Court decision in Pfennig v R were summarised by Justice of Appeal Muir in R v Brown. At paragraph 18, he said:
Of course, the existence of “striking similarities”, “unusual features” or an “underlying unity”, “system” or “pattern” is not an essential prerequisite to the admissibility of such similar fact evidence. But evidence of the type under consideration is admissible only if there is no reasonable view of such evidence, considered together with the other relevant evidence in the case which is consistent with the innocence of the accused.
- At paragraph 19, he went on to say:
The correct approach to the determination of the admissibility of such evidence was stated by Hayne J in HML v R quoting from the reasons in Phillips v R:
In deciding the question of admissibility presented by Pfennig, the trial judge is not called on to decide whether the evidence which the prosecution intends to adduce does or does not establish the accused’s guilt.
the test [in Pfennig] is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v R does not require the Judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.
- The following points emerge from Pfennig v R and Phillips v R: (1) the admission of similar fact evidence is exceptional and requires a strong degree of probative force; (2) the evidence is only admissible where its probative force transcends its prejudicial effect; (3) the propensity evidence must have a specific connection with the commission of the offence charged; (4) the evidence is admissible if there is no reasonable view of it consistent with the innocence of the accused; and (5) the 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 characteristics.
- The parties here also referred to the decision of the Court of Appeal in R v CBM12 and, in particular, the comments of Justice Henry at paragraph 41. In CBM, the appellant was charged with multiple sexual offences against two younger female cousins, the offending against which occurred when he lived with their respective families. In that case, the application Judge relied upon a number of factors in arriving at the conclusion that the evidence was cross-admissible. Those factors included the familial relationship between the complainants and the defendant, the similar ages of the complainants, the temporal connection between the offences and the presence of other children during some of the offending. Justice Henry concluded that the application Judge was entitled to conclude as he did that the evidence of each complainant was cross-admissible against the accused as similar fact evidence.
- The parties also relied upon the restatement of principle by the Court of Appeal in R v Nibigira. I have taken those principles into account. The prosecution relied upon the fact that in Nibigira, the Court of Appeal was satisfied that within each of the two groups of offences, those in the van and those at the house, there were sufficient similarities, despite the offending itself being different, for example, in the nature and extent of the sexual touching. Here, the defendant concedes the areas of similarity exist which I have previously outlined.
- For completeness, I also record that the defendant referred me to the High Court decision in R v Bauer, where the High Court said:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together.
- The defendant submits that the particular counts are not cross-admissible against each other on the basis of similar fact evidence and that they do not satisfy the relevant high threshold set out in the authorities. The defendant submits that the prosecution cannot establish a high degree of probative cogency with respect to the evidence of both complainants so as to justify the joinder of all counts on the same indictment.
- The High Court decision in Phillips makes it clear that the prosecution must identify the issues of the trial in which the similar fact evidence would be tendered to identify its relevance and assess its probative value.
- The Crown submits that those features which are similar demonstrate the requisite nexus to form a series of offences and that there is an underlying pattern and unity to the behaviour, such that there is no reasonable view of the evidence consistent with the innocence of the defendant in respect of the charges relating to the other complainant and vice-versa.
- Finally, the Crown submits that the facts on the counts show an underlying pattern or unity which is not only similar in time, place and circumstances, but also viewed in isolation. Viewed together, they are said to show a sufficient pattern of activity referred to in the cases, as well as, perhaps, a striking similarity in the offending itself.
- The defendant relies upon the fact that in his interview with police he admitted being in the complainants’ bedroom at night when the complainants were asleep, but denies the offending. He says he went there to turn off a complainant’s iPad and torch, thereby offering an innocent explanation for being present in the room. But that explanation is not addressed to the offending itself. It is not a rational explanation consistent with innocence for touching the complainants on their vaginal area.
- In my view, there can be no innocent explanation consistent with innocence for that touching. There are, clearly, some differences in the circumstances of the offending between the complainants with respect to time, location of the offending within the house, whether violence is alleged, whether another child is present, the descriptions of how the defendant was located when the complainant awoke, how the defendant exited the room, and the alleged touching itself.
- Despite those differences, in my view, the underlying similarities or unity in the complaints satisfy me that there is no other view of the evidence of each complainant than that it is true.
- The similarities include the following matters. The complainants are sisters in the same family. The defendant is their older brother. The alleged offending began around the same time or within the same date range. There is a temporal connection between counts 1, 2 and 3, as well as a temporal connection between those counts and the beginning of the uncharged acts, which are numerous, which are relied upon for count 6. The complainants were close in age. The defendant lived with the complainants in the same house when the offending occurred. Each offence occurred in the family home. Each offence occurred late at night or in the early morning when the complainants were initially asleep. The defendant used a similar approach, at least in the early stages, in which he entered their shared bedroom at night. Each sexual offence involved touching in the vaginal area and only the vaginal area, with the difference being whether there was penetration or not. Each complainant awoke to find the defendant in the room. The defendant did not persist in offending when the complainants woke up or challenged him. Both complainants described the defendant sitting or lying on the floor beside their bed. Both complainants described the complainant crawling on the floor of the bedroom on at least one occasion. The offending in the bedroom occurred on occasions when the other complainant was present.
- In conclusion, the matters said to demonstrate striking similarities or an underlying unity do, in my view, have the necessary quality required to be properly joined on the indictment. The common aspects of the offending do, in my view, have a sufficiently distinctive character. The counts manifest a marked similarity or a distinctive modus operandi so as to give evidence relating to one complainant a real probative effect in respect of the other. In my view, the activity and circumstances described by the complainants possess underlying unity and reveal a pattern of activity that permits of no reasonable explanation other than that the defendant committed the offences concerning each applicant.
- I pause to note that on occasions it is argued that propensity evidence should be excluded because the similarities are “entirely unremarkable”. That submission is based on the observations by the High Court in Phillips at paragraph 56, where the Court said:
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 seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances.
- Those comments by the High Court in Phillips that the similarities in the case were entirely unremarkable were made in the context of the facts of that particular case. This is not a case like Phillips. It cannot be said that a male teenager who enters the bedroom or a room in which his younger sisters are sleeping at night and seeks to touch them on the vaginal area before crawling out when disturbed is entirely unremarkable. It is, in my view, behaviour of a kind that would be remarkable for innocent people in the way described by the Court of Appeal in R v Watson, including at paragraph 20.
- I have formed the view that there is no reasonable view of the evidence of each complainant, which is consistent with the defendant’s innocence in respect of the charges relating to the other complainant.
- Therefore, I find that the charges are and do form part of a series of offences of the same, or similar character, for the purposes of section 567(2) of the Code. I also find that the evidence of each complainant is cross-admissible against the defendant as similar fact evidence and could be used by a jury as supporting proof of the charges relating to the other complainant. The defendant’s application is therefore dismissed.
  1 Qd R 159 at 164.
 (1995) 182 CLR 461.
  QCA 16 at  - .
 (2006) 225 CLR 303.
 Pfennig v R (1995) 182 CLR 461 at 481.
 Pfennig at 481.
 Pfennig at 485.
 Pfennig at 484.
 Pfennig at 484.
 Pfennig at 485; Phillips at 323.
  245 CLR 499 at 532. 12  1 Qd R 165.
  QCA 115 at .
 (2018) 359 ALR 359 at .
  QCA 82.
- Published Case Name:
The Queen v TJM
- Shortened Case Name:
The Queen v TJM
 QDCPR 85
12 Dec 2018