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R v PWE QDCPR 132
DISTRICT COURT OF QUEENSLAND
R v PWE  QDCPR 132
27 November 2020 (delivered ex tempore)
Brisbane District Court
27 November 2020
CRIMINAL LAW – EVIDENCE – PROPENSITY AND SIMILAR FACT EVIDENCE – ADMISSIBILITY – EVIDENCE OF PRIOR CONVICTIONS – where the applicant charged with burglary in the night and sexual assault – where the Crown sought to use prior convictions of burglary and sexual assault as similar fact evidence
Evidence Act 1977 (Qld) s 132A
R v McNeish  QCA 191
Hughes v R  263 CLR 338
R v Little  QCA 113
Phillips v R  225 CLR 303
P Richards for the applicant
M Whitbread for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant, PWE, seeks to exclude similar fact evidence which the prosecution proposed to lead arising out of previous convictions by the applicant in Queensland and Tasmania.
- The applicant’s summary of the Crown case is as follows (Outline of submissions of applicant 51-3):-
The Prosecution Case:
The applicant is charged with one count of burglary in the night and one count of sexual assault. The offences allegedly occurred at [address redacted], West End sometime around 5 to 6 am on 27 November 2018. The complainant had retired the previous evening around 8.30 pm. She was wearing a nightie, but no underwear. The unit’s two sets of windows were open, but both doors to the unit were locked and secured. At the relevant time the complainant awoke to the sensation of being touched on her vagina. She was lying on her back in her bed. She saw the intruder’s face above her. The intruder was lying on the bed to her right, leaning over her, propped up on one elbow. His face and chest were above her when she awoke. The intruder was rubbing the complainant’s vagina and clitoris with his fingers. She screamed, “Who are you? Get out. Get out”. The intruder appeared shocked when she began screaming. He jumped off the right-hand side of the bed and ran around the end of her bed, grabbing clothes before he left the bedroom.
He ran through the unit and left through the front door of the unit. She observed the intruder was wearing a t-shirt, but no pants. A nearby witness heard a woman screaming, “Get out”. He observed a man “bounding down the front steps of the block of units, then up the next set of steps in the same block.” He describes the man as Caucasian, average build, light brownish blonde hair, wearing no pants and carrying what the witness assumed to be clothes. He described the t-shirt as being grey, reminding him of a faded band shirt apparently for sale in Kmart.
The complainant makes an immediate complaint and police are called to the scene. Investigating police see a man, said to be the applicant sometime after 6 am, 250 metres away near the intersection of [street redacted] and [street redacted] Streets. The man fled. He was seen again by the same officer a few minutes later in Boundary Street but fled.
Police allegedly viewed CCTV images to identify the man and employed a QPS tracking dog. The police dog tracked the man and found him hiding behind a boarding house in James Street. Despite the handler’s requests to drop to the ground the man again fled. Around 11.30 am the applicant was located by police inside a cubicle in a toilet block on the corner of [street redacted] and [street redacted] Streets, West End.
The Crown seeks to link the offender to pre-offence conduct. It comprises evidence from another resident in the same unit block. Around 10 pm on 26 November – two nights earlier, the witness was lying on her bed semi-clothed when she observed a man “staring” through a window at her. She says his face was inside the room. She told him to leave. He left 20 seconds later. She describes the man as mid to late 30s, short dark hair, Caucasian but tanned, and facial hair “with no real defining features”.
The complainant states that prior to the offending of 28 November, on 21 November 2018 she returned home to notice marks on her front door and around the frame consistent with an attempt to break into her unit. The Crown alleged the pre-offence conduct is somehow linked to the offending on the indictment.
The applicant was on parole at the time of the alleged offending. Between 21-28 November 2018 he was fitted with a “Smart Tag” [an ankle bracelet] and his movements were being monitored by Queensland Corrective Services.
A QCS electronic monitoring report of his movements puts him in the vicinity of the offending between 5:13:54 hours and 6:00:42 hours on that date.
At all material times the applicant resided in a nearby boarding house.
The Proposed “Similar Fact” Evidence:
Annexure 1 to this outline outlines the proposed evidence. Pages 11-16 comprise an agreed schedule of facts tendered upon the applicant’s sentence in the Beenleigh District Court on 9 December 2016. The Crown alleges the conduct with respect to each count therein described is admissible upon his trial and the present indictment. Pages 1-10 comprise Tasmanian documents outlining past offending in that State and tendered by the prosecution at his sentencing proceedings on 9 December 2016.
The Crown alleges the conduct with respect to each offence in Tasmania, therein described, is admissible upon his trial on the present indictment.
- It is not accepted any of the above documents are in admissible form at this stage.
- I note that subsequent to the preparation of that outline the Crown has provided further material which fleshes out, in particular, the material from Tasmania.
- The respondent Crown accepts that outline from the applicant, noting however some additional features (Exhibit 4 – Outline of Submissions of Respondent, paragraphs 4-11):-
4: The central issue at a trial would be whether the offender is identified as the applicant.
5: The evidence from the ankle monitor places the applicant at [address redacted], West End. The address of the offending is [address redacted], at unit 4, which is on the second level of the building. Witnesses hear the complainant yell or scream at about 5:30 am (O'Neill); 5:58 am (Platt); 5:49 am (Barrie); and 5:45 am (Jackson). The applicant is at this position between 5:13 am and 6:00 am, but the data is not such that it can show which unit he is inside, or indeed if he is, in fact, inside any unit. The report also shows that he is moving to various positions at that address between the period from 21 to 28 November 2018 (the offence being on 28 November 2018).
6: The applicant was residing at a boarding house located at [address redacted], West End.
7: The other identification evidence includes the complainant being shown a photo board and identifying the photograph of the applicant whilst stating, “I cannot be 100 per cent certain”.
8: In relation to the ankle monitor evidence, the accuracy of the location of the wearer is up to 1.8 metres, but it can be variable depending upon a number of factors such as:
- (a)If the wearer walks into a building:
- (i)A type of construction of the building;
- (ii)The type of material it was made of, such as timber, tin, brick, besser block;
- (iii)If communication with GPS ceases it diverts to GSM (mobile phone towers).
- (b)The number of satellites the device is communicating with at the time;
- (c)How frequently the device is recording locations;
- (d)If the device is moving or if it’s stopped;
- (e)Environmental factors;
- (f)Being in a vehicle or a train;
- (g)Any structures between the device and the satellite, such as a device in the middle of high rises versus a device out in the open not around any structures;
- (h)Potentially extreme weather conditions, although that has not been experienced, but not cloud cover.
9: Depending on the construction of a building entered by the wearer, the device may communicate via satellites out of a door or window which shows “…an arc of GPS data out – that would sit beside the building”.
10: The applicant was apprehended by police nearby at about 11:30 am on the same day as the offending, although observed throughout the morning at various nearby locations, and he declined to participate in a formal interview.
11: There is no DNA or fingerprint evidence identifying, or assisting in identifying, the applicant as the offender. [Citations deleted]
Proposed similar fact evidence:
- The respondent Crown seeks to call evidence in respect of five other matters as follows:-
- (a) On 8 December 2008, [file number redacted], Launceston Magistrates Court, charge 2, aggravated burglary (dwelling) on 18 December 2007 at Launceston (to which the defendant pleaded guilty):
- The facts are set out in exhibit A, p. 11, ll.8-27 of the affidavit of Sarah Kingston affirmed 6 November 2020, as follows:-
On index 18, which is complaint [number redacted] of 08. The facts are that sometime between the 1st of December 2007 and the 17th of December 2007, the defendant went to a unit at [address redacted] and gained entry to that unit by climbing through an unlocked window. Nothing was stolen from the unit. Around 12:20 am on the 18th of December, 2007, the defendant returned to that unit and climbed into the unit by the same unlocked window. Once inside the unit, he went into the bedroom and found the complainant, [name redacted] in bed asleep. The defendant climbed on top of the [complainant] while she lay in bed, and pinned her shoulders to the bed and tried to push her legs apart. The complainant began to struggle with the defendant, and during that struggle she has struck her head. The complainant continued to struggle with the defendant, resulting in the defendant running out of the unit via the front door. As a result of that assault…the complainant…suffered a laceration to the scalp, an abrasion to the hand and bruises to…both of her arms and her stomach and her knee.
- (b) On 8 December 2008, [file number redacted], Launceston Magistrates Court, charge 3, aggravated burglary (dwelling) on 21 December 2007, at Launceston (to which the defendant pleaded guilty).
- The facts are contained at exhibit A, p. 11, l.27-p. 12, l. 12 of the affidavit of Sarah Kingston affirmed 6 November 2020 as follows:-
At about…3:02 am on the 21st of December 2007. The defendant went to an address in Margaret Street. He used wheelie bins to climb on to a balcony and enter the unit via an unlocked door. Once inside the unit, the defendant found the complainant, [name redacted], in bed asleep. The defendant knelt beside the complainant’s bed and touched her leg, causing her to wake up. The complainant screamed and the defendant ran from the house and ran out of the unit through the open door, jumped off the balcony and disappeared into the back yard. The complainant noticed that the defendant appeared to be naked from the waist down. The complainant checked her unit and found that her mobile phone had been removed from her [bedside] table. Police were called and forensic examinations were conducted. The defendant was interviewed on the 24th of December of 2007. And denied any knowledge of any of the abovementioned matters. However, he did say that he and his de-facto partner, [name redacted] had been to unit [address redacted] prior to any burglaries. The defendant stated that he tried to rent the unit, and had been inside the kitchen area. On the 4th of February, police received DNA evidence linking the defendant to both the crime scenes at [redacted] Street and…[redacted] Road. A high grade match of the defendant’s DNA was found on hairs taken from a window sill at [address redacted]. And a high grade match of the defendant’s DNA was taken from the complainant’s mobile phone from [address redacted] Street. As a result of these DNA evidence (sic), the defendant was reinterviewed on the 12th of…February of this year. He was interviewed again and he admitted that he had gone to the unit at Invermay Road, sometime prior to the 17th of December and climbed through an unlocked window. He…intended to steal money but he didn’t steal anything. He denied returning to that unit on the 18th of December and denied assaulting the complainant. And this was despite the same method of entering being used. The defendant admitted going to Margaret Street on the 21st of December, stating that he had been drinking in the Launceston area, and stated that he climbed on to the balcony and let himself into the unit via an unlocked door. The defendant stated that he intended to steal and admitted picking up the…complainant’s mobile phone. The defendant denied assaulting the complainant saying he had fallen over on to her while she was in bed asleep. And denied being…naked from the waist down, saying he was wearing shorts.
- (c) On 8 December 2008, [file number redacted], Launceston Magistrates Court, charge 1, aggravated burglary (dwelling) on 21 June 2008 at Launceston (to which the defendant pleaded guilty).
- The facts from exhibit A, p. 13 ll.8-31, affidavit of Sarah Kingston affirmed 6 November 2020, as follows:-
On index 21 which is complaint [number redacted] of ’08. The facts are that [complainant] resides at unit [address redacted]. At approximately 3:30 am on the 12th of June 2008 she was awoken by her doona being pulled down towards her feet. The bedroom was in darkness and she has reached out and taken the arm of a person who has caused her…which has caused her to scream. The person then ran off. Police were subsequently called and attended, and located the front door [indistinct] where the complainant’s keys. Which she stated she believed she left in there about 10:30 pm that evening when she arrived home. At approximately 4:15 am, police attended the [redacted] Road, to speak to the defendant but the defendant was not present. His partner was spoken to. Approximately an hour later police re-attended that address. The defendant was spoken to and he accompanied them to police headquarters for an interview. During which he admitted that he was the person who had been at that Invermay address earlier that morning. He stated he had walked down the driveway and observed keys in the door. Opening it with the intention of stealing cash. He claimed to have only partially entered the residence when he heard screams and has run off. He denied pulling the doona down off the complainant or having entered the bedroom.
- (d) On 7 December 2016, Beenleigh District Court, indictment [number redacted], count 1 – burglary by break in the night; count 2 – sexual assault, on 1 April 2014 at Eagleby.
- Facts – exhibit SME1, p.11 (schedule of facts) affidavit of Stephen Erickson affirmed 24 July 2020 as follows:-
Counts 1 and 2 – on 1/4/2014 – the complainant [name redacted] resides at [address redacted], Eagleby with her children. She was 39 years old at the time of the offences. [Complainant] went to bed at 11 pm that night. She woke up in the middle of the night after feeling a hand move gently from her waist down to her buttocks. She was very frightened and screamed out loudly saying, “What the fuck”, and hit this person’s hand away.
She then observed this person run out of her bedroom into the lounge room and then open the screen door of the lounge room and left. She stated that he moved very quickly.
Her description of the person is that he was a young male but could not provide a better description because it was dark in her bedroom. She checked on her children to make sure they were okay and then called the police.
Police later identified that entry was gained by damaging the flyscreen of the rear security door and flicking over the external lock. The accused then slid the door open and approached the complainant in her living room. No property was stolen from the complainant.
- These facts were summarised by counsel for the Crown on the record as follows (Exhibit A, p.30 ll.35-40 (sentence submissions) affidavit of Sarah Kingston affirmed 6 November 2020):-
Counts 1 and 2 relate to the first incident that occurred around 11 pm on the 1st of April 2014 at [address redacted] in Eagleby. It was a 39 year old female complainant. She woke during her sleep and felt a hand move gently from her waist down to her buttocks and she screamed out and hit the defendant’s hand away. He fled at speed on foot. It seems entry was gained by damaging a screen door mesh so that the lock could be accessed and flicked over to unlock the door.
- In paragraph (b) - on 7 December 2016, Beenleigh District Court, indictment [redacted], count 7 – burglary by break in the night; count 8 – sexual assault, on 15 April 2014 at Pacific Pines.
- Facts – exhibit SME1, p.14 (schedule of facts), affidavit of Stephen Erickson affirmed 24 July 2020. On 15/4/2014 – the next incident occurred at [address redacted], Pacific Pines 20 minutes after the previous incident.
The complainant [name redacted] was 38 years old at the time of the offence. She resided at the address with her husband, [name redacted] and their two young children. That evening the children went to bed at 7 pm and [complainant] and [complainant’s husband] went to bed at 9 pm. [The complainant] and [complainant’s husband] both slept in the main bedroom in the same bed. Prior to going to sleep they locked the sliding doors of the lounge and dining room. At 3:30 am [the complainant] woke up because one of her children was crying, she attended to him for 5-10 minutes and then went back to bed.
At approximately 4:45 am the accused entered the house. He went into the complainant’s bedroom. The complainant described suddenly waking up and felt a hand touching her right hip. She looked to her right and saw a male figure crouched down beside her with his right hand under the sheet. She immediately screamed as loud as she could. [The complainant’s husband] woke up to her scream and the accused was seen run (sic) out of the bedroom. [The complainant’s husband] got out of bed and shouted out at the accused and ran after him. [The complainant’s husband] saw him exit the house through the side access gate and sprinted towards Santa Isobel Boulevard.
Several minutes later Triple O was called and police arrived soon afterwards.
Police conducted a video line-up where the accused was positively identified by [the complainant’s husband]. [The complainant] was unable to positively identify the accused.
Entry was gained by cutting the flyscreen and then sliding open the glass door. No property was stolen from the complainant.
- These facts were summarised by counsel for the Crown on the record as follows:-Affidavit of Sarah Kingston affirmed 6 November 2020, exhibit A p.31 l.33-p.32 l.3 (sentence submissions):-
Counts 7 and 8 relate to the fifth incident at [address redacted]…Pacific Pines. Now, that’s only 20 minutes after the previous incident with the complainant with the cockatiel. On this occasion a 36 year old woman was at home with her husband and children. She awoke because someone was touching her right hip at the top of her underwear. She saw a silhouette of a person crouched down beside her bed with a hand under her sheet. She realised that her husband was asleep next to her. She then screamed which woke the husband up and the defendant began to leave through the glass sliding door and he was chased by the husband, no property stolen.
- Evidence Act s.132A provides:-
In a criminal proceedings similar fact evidence, the probative value of which outweighs its potential prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.
- In R v McNeish  QCA 191, the Court of Appeal explained at  – :
 Similar fact evidence (including evidence that demonstrates propensity) will fall for use as circumstantial evidence. It is in the nature of circumstantial evidence that an accused’s guilt will not be demonstrated by only one item of circumstantial evidence standing alone. If it were required by the Pfennig test that propensity or similar fact evidence must be capable of demonstrating an accused’s guilt on its own, the Pfennig test would never be met.
 In Phillips the High Court explained that is not what the Pfennig test required, observing:
“Pfennig v the Queen 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. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence”. [At 323-324 ].
 That passage’s reference to “viewed in the context and way just described” was a reference to the court’s view that, in determining admissibility, the trial judge must view the similar fact evidence in the context of the prosecution case and assume the similar fact evidence would be accepted as true and that the prosecution case may be accepted by the jury.
 The two points made in the above-quoted passage, are therefore that:
- (1)The similar fact evidence standing alone does not have to compel the conclusion the accused is guilty of the charge it has led to prove; but –
- (2)The similar fact evidence must be excluded if, assuming it is true and that the prosecution case may be accepted by the jury, there is a reasonable view of the similar fact evidence, considered in the context of that prosecution case, which is consistent with the accused’s innocence of the charge.
- In Hughes v R  263 CLR 338, 356 , the High Court observed:
In criminal proceedings where [tendency evidence] is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon a close similarity between the conduct evidencing the tendency and the offence.
- In R v Little  QCA 113, the Court of Appeal noted with approval the following propositions from Phillips v R  225 CLR 303, , namely:
- (a)The admission of similar fact evidence is exceptional and requires a strong degree of probative force;
- (b)The evidence is only admissible where its probative force clearly transcends its merely prejudicial effect;
- (c)There must be a sufficient nexus between the primary evidence or a particular charge and the similar fact evidence;
- (d)There must be some specific connection with or in relation to the issues for decision in the subject case;
- (e)The similar fact evidence is inadmissible unless, viewed in the context of the Crown case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused;
- (f)That requirement may be fulfilled either by evidence showing a “striking similarity, unusual features, underlying unity, system, pattern or signature or by some other feature of the evidence revealing the required probative value”;
- (g)In this context, the assumption is that the similar fact evidence would be accepted as true and the Crown case may be accepted by the jury. (R v Little  QCA 113,  – ).
- The Crown case is a circumstantial identification case, and the similar fact evidence does not stand alone. If admitted in evidence, it is but one strand of the Crown’s case, and demonstrates (the Crown submits) the defendant’s modus operandi.
- The Crown identifies the other evidence going to identification as follows. (Exhibit 4 submissions on behalf of the prosecution) para 28(a) – (i).
- (a)A downstairs neighbour (Jackson), awoke at 5:45 am and heard muffled noises following by screaming of the complainant;
- (b)A downstairs neighbour (O'Neill) awake at 5:30 am, heard movement upstairs, followed by screaming, “Get out”. Also recalls a male matching the applicant’s description looking at her through her bedroom window on 26 November 2018.
- (c)A witness on the street at 5:58 am (Platt) heard the complainant screaming, “Get out” (and “He tried to rape me. He was on of me”) and saw a male bounding down the front steps of the unit complex, and provides a description. The male then went up the next set of steps in the same complex.
- (d)The occupant of unit 6 (McCarthy), who had awoken at 4:45 am and was having a shower (after yoga and breakfast) and heard footsteps in his unit whilst in the shower. (Another witness sees the offender "disappearing" into this unit).
- (e)After 6:00 am police (Sgt Seymour) identified the applicant on the street near the [name redacted] Hotel on the corner of [redacted] and [redacted] Streets, a distance of about 250 metres from the complainant’s unit. The applicant ran off down [redacted] Street. The same officer remained in place awaiting the police dog and a few minutes later saw the applicant return walking along Boundary Street. When the applicant appeared to see the officer, the applicant ran off again. He was also present when the applicant was apprehended at the toilets in the park.
- (f)The police dog handler (SC McLeod) tracked the applicant through unit 6 (McCarthy) down the backstairs through the back yard of [address redacted], [address redacted], up James Street and behind the boarding house where the applicant was observed hiding behind some bins. The applicant disobeyed police commands and ran off, jumping a fence.
- (g)CCTV footage from [address redacted], West End; the [name redacted] Hotel and [name redacted] was obtained and it identified the applicant moving about the area. It also shows the applicant leaving some garage doors at 11:05 am (SC Trembath).
- (h)A QPS officer (Lynsey Ooi) received a telephone call from a member of the public who reported a suspicious person in the toilet blocks of a park.
- (i)At 11:25 am police (SC Trembath) apprehended the applicant in a public toilet on the corner of Vulture and Thomas Street, West End.
- The Crown identifies the following similarities between the current and previous offending (Submissions of the Crown, exhibit 4, para 30(a)-(f)):-
- (a)The complainants in each event were strangers to the applicant;
- (b)Each complainant were (sic) vulnerable females seemingly alone in their own homes at night;
- (c)Each complainant was asleep when the offending occurred;
- (d)Each complainant was awoken by the applicant touching them, or to a touch or movement caused by the applicant.
- (e)After being discovered or confronted, the applicant ran from the residence on each occasion.
- (f)On one prior occasion the applicant was observed to be naked from the waist down (21 December 2007), as was the observation on the current occasion.
- There are also some differences. In the events of 15 April 2014 the complainant’s husband was in bed with her. In the events of 12 June 2008, the complainant’s doona was pulled to her feet and the complainant then touched the defendant’s arm.
- Mr Richards, who appears on behalf of the applicant, submits that the evidence of the five previous matters does not amount to more than “mere propensity”, and is not sufficiently probative to warrant admissibility. He did, however, in oral submissions concede that the occasion when the applicant was naked from the waist down (21 December 2007) might be sufficiently probative to warrant admissibility.
- With respect, the Crown’s submission that the previous convictions reveal a course of offending that bears no reasonable explanation other than that the applicant was the perpetrator of the offences, is extremely persuasive.
- In my view, despite some differences which I’ve identified above, those previous convictions do have a signature of striking similarity. Clearly, that evidence represents cogent, probative evidence, which would rationally affect the assessment of the probability of the existence of the facts in issue in this trial, namely the identity of the offender who burgled the complainant’s residence and sexually assaulted her.
- The evidence from the five previous sets of convictions has a strong degree of probative force which, I accept, overwhelms the obvious prejudicial value of that evidence. There is a clear pattern of conduct demonstrated by the defendant’s prior offending. That evidence should be admitted on the defendant’s trial in respect of the current charges, subject of course, to an appropriate direction from the trial judge.
- It follows that the application seeking to exclude the prior similar fact evidence sought to be led by the Crown, should be refused.
- Application dismissed.
- Published Case Name:
R v PWE
- Shortened Case Name:
R v PWE
 QDCPR 132
27 Nov 2020