The Queen v Jonathan[2021] QDCPR 76

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is charged with two counts of rape.  Both complainants were friends of the applicant child.  The first offence occurred on 11 December 2019 and the second on 11 January 2020.  Both complainants are 15 years of age, as is the applicant child.  The applicant seeks to sever the charges.
2. [2]
   On 10 December 2019, the complainant C and the applicant attended T’s house for a party.  In the early hours of 11 December 2019, the applicant, C and T went to the master bedroom of the house and got into bed.  Others were sleeping on the floor of the room.  The applicant was in the middle of the bed with the two girls on either side.  At approximately 3.00am, the applicant reached around C’s body and put his hand on top of her vagina over her skirt.  T was asleep.  C was in a sleep-like state.  She wriggled her body in an attempt to get the applicant to remove his hand but instead he moved his hand under her skirt and underwear.  She told the applicant “No” but he did not respond.  She again said “No” multiple times and he did not respond.  He became more aggressive and rubbed and penetrated her vagina with two fingers and attempted to add a third.  She gave up trying to stop him and when the offending concluded she rolled over and went to sleep.  In the aftermath of the offending, she made a preliminary complaint to T and others.  
3. [3]
   On 10 January 2020, T, C and the applicant attended Brisbane city.  The three of them went to bed that night with T and C sleeping in one bed and the applicant in another separate room at T’s house.  The following day they spent time together.  C left at 5.00pm leaving T and the applicant together.  The applicant went to sleep in T’s room and at approximately 11.00pm that night T went to her room and went to sleep next to the applicant.  She woke up to the applicant touching her on the buttocks.  He began to touch her on the outside of her clothes and moved his hand under her underwear.  She feigned sleep and the touching escalated to touching her genitals and penetrating her vagina with his finger two times. She moved her body and pretended to wake up in order to stop him.  She left the bed and slept on a pull-out couch for the remainder of the night.  
4. [4]
   The Crown submits that the two counts are joinable on the basis that they form part of a series of offences of the same or similar character.  In particular, they rely on the principles outlined in R v McNeish^[1] where the issues around admissibility of similar offences are discussed and the need to identify the issue in relation to which the evidence is led is emphasised.  In McNeish the court considered the reasons why evidence of this type should be joined together and identified four reasons, including “to demonstrate that the accused not only had a motive to commit the offence but that he was a person who was prepared to act on his motivation to commit the charged offence because he committed similar offences against the complainant or others previously”^[2].
5. [5]
   The applicant, in his argument for severance of the indictment, relied heavily on Phillips v The Queen.^[3] Phillips v The Queen concerned a young man charged with rape offences against six complainants. One of the issues with the joinder of the charges was that the defences in relation to the six complainants were different. In some cases the applicant denied the commission of the offences, in some cases consent was an issue and in others an honest and reasonable but mistaken belief in consent was raised. However, the applicant in this case relies on a passage from that case which considers whether the actions of Phillips was strikingly similar. In the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, and Heydon JJ it was noted:^[4]

2. “[56]
   The similarities relied on were not merely not “striking” they were entirely unremarkable.  That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance is not particularly probative.  Nor is the applicant’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.  His recklessness in persisting with this conduct near other people who might be attracted by vocal protest is also unremarkable and not uncommon…

2. [58]
   There was no dispute about the absence of striking similarity, unusual features, underlying unity, system, pattern or signature.  Although none of these features is necessary for admissibility, the high probative value required to overcome the prejudicial effect of the evidence was not shown to exist for any other reason.”

6. [6]
   It was confirmed in that judgment, that: 

“Since at least 1995 it has generally been thought that the admissibility of similar fact evidence depends on the test stated in Pfennig v The Queen (1995) 182 CLR 461: it is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused.”^[5]

7. [7]
   In McNeish the court examined Phillips and noted that none of the features in Phillips demonstrated sufficient probative value to overcome the prejudicial effect of the evidence.  The court in McNeish noted:^[6]

“In Phillips the High Court explained that it 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.”^[7]

8. [8]
   The difference between McNeish and Phillips is illustrated by the decision of the Court of Appeal in R v MAP.^[8] MAP is a similar case to this in that there were two occasions when the 18 year old defendant and the 15 year old complainants were together. The complainants were both on difference occasions asleep when the defendant digitally penetrated them.  He denied those things happened.  There were, like this offending, differences in the events but there were similarities in that the girls were both asleep on the Crown case when they were attacked.  The court in MAP noted that the trial preceded the decision of the High Court in Phillips v The Queen: 

“In that case the High Court made it clear that the improbability that complainants would tell similar lies on the issue of consent to sexual activity was not a basis for displacing the exclusionary rule against the admission of similar fact evidence. The High Court accepted that the exclusionary rule might be displaced by reason of the probative value of the improbability of similar lies by complainants where the evidence went to the proof of the issue whether the accused had done the acts of which the complainants complained.  In such a case, the High Court emphasised that continuing necessity for a ‘strong degree of probative force’ if the exclusionary rule is to be displaced and that ‘striking similarity’ will usually be necessary if the evidence of similar facts is to have the sufficiently strong degree of probative force to displace the exclusionary rule.”

“In this latter regard it is significant for the proper determination of this appeal that the High Court in Phillips v The Queen specifically regarded as insufficient for this purpose similar fact evidence indicative of an accused ‘recklessness in persisting with [offending] conduct near other people who might be attracted by vocal protests’.  On the approach taken by the High Court in Phillips v The Queen, the brazen opportunism in which the appellant engaged in this case, if the complainants are to be believed, would be characterised as ‘unremarkable and not uncommon’ for the purpose of determining whether this evidence had sufficient probative force to displace the exclusionary rule.”^[9]

9. [9]
   The difference between cases such as MAP and Phillips and the cases of McNeish and R v WBN^[10] lie in the fact that it is not uncommon or unusual behaviour for people of similar ages to seek sexual contact with others of a similar age. Therefore the unusual nature of the offending has to be determined in other ways.  Whilst it is unusual for a grown man to be interested in under-age girls and that, in itself, is an unusual feature, it is not an unusual feature for a teenager to be interested in other teenagers.  It is then necessary to look at the circumstances of the offending to see if there is underlying unity within the offences.  
10. [10]
    There is similarity between the offences in that the girls were in bed with the applicant at the time of offending.  One was drifting into sleep and the other was asleep.  However, on the first occasion the applicant and the two girls had gone to sleep in the bed surrounded by others.  On the second occasion, the applicant had gone to bed by himself and the complainant had gone to sleep beside him.  There was no planning or premeditation in the latter act.  There was more persistence in relation to the first occasion and it is unclear whether the applicant thought that the first complainant was actually asleep when he turned his attentions towards her. Therefore, whilst attacking a female while she is asleep may in itself represent an unusual feature, it cannot be shown that this was within the knowledge of the defendant in both cases.  Given the statements of principle in MAP and Phillips, it must, in my view, be assumed that exploring sexual contact in the situation in which the applicant found himself, is not sufficiently probative to outweigh the prejudicial effect of the admission of the evidence.
11. [11]
    The charges of rape should be tried separately.