R v Nathaniel[2021] QDCPR 77

CHILDREN’S COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application to sever an indictment charging eight offences against the applicant.  Counts 1-4 relate to a child KH and counts 5-8 relate to EH.
2. [2]
   The applicant’s father and complainant’s mother began dating and moved in with each other in October 2013. They separated in mid-January 2014.  At the time the applicant was 15, KH was 11 and EH was 13.
3. [3]
   The allegations in relation to KH are that approximately three weeks after the applicant moved in, she was in her bedroom and the rest of the family had gone shopping.  The applicant entered the room and began tickling her before pinning her down and raping her by inserting his penis into her vagina.  Two weeks later she was sleeping in her bedroom and woke to find the applicant having intercourse with her.  Once she awoke, he left.  Two weeks after that rape the family were all at home and were about to watch a movie together when the applicant asked her to go into his room to help select a movie.  He then forced her to stay in the room and placed her hand on his penis on the outside of his shorts.  They were interrupted when his father yelled for them to come back out.  About a week after that she was sitting alone on the couch in the house and the applicant sat beside her and began kissing her on the neck.  This was interrupted when EH opened the door.
4. [4]
   In relation to EH the events occurred on a New Year’s camping trip.  On the first occasion they were swimming alone in a nearby creek.  She grabbed a hold of the applicant and wrapped her legs around him because she could not touch the bottom of the creek. He forcibly kissed her whilst squeezing her breasts and buttocks on the outside of her clothing.  He then placed his hand through her swimwear into her vagina.  The next day they went swimming again in the creek.  The complainant again grabbed onto him to stay afloat.  He put his tongue into her mouth, squeezed her breasts on the outside of her clothing and inserted his finger into her vagina.

5. [5]
   The joinder of these counts depends on the admissibility of the evidence of similar fact evidence.  In McNeish v The Queen^[1] the court noted that when deciding similar fact evidence, it is important to view the context of the prosecution case and the way in which the evidence becomes relevant. The test for admissibility is explained in Pfennig v The Queen:

“The evidence of propensity needs to a have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspects of it.”^[2]

6. [6]
   That test was further discussed in Phillips v The Queen where the court observed:

“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 or way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.”^[3]

7. [7]
   When considering cases of similar fact evidence, it is clear from cases such as McNeish and Pfennig that the acts relied on do not have to be identical.  There does, however, need to be a common thread which demonstrates sufficient probative value to overcome the prejudicial effect of the evidence.  Factors which may be relevant are the interest of an older man in young children, the grooming of an older man of the family to gain access to those younger children, the method in which the offending occurs but also the opportunities created to gain access to the children.
8. [8]
   However, caution must be exercised when looking at a situation where the offender himself is a child or a young adult.  In situations where an offender and the victim are close in age, the feature of an unnatural interest in young people does not exist.  As was noted in Phillips v The Queen sometimes the behaviour is not outside the limits of normal teenage behaviour.^[4] In R v MAP^[5] this issue was discussed by Keane JA (as he then was) where a young man on 2 separate occasions digitally penetrated two young girls who were friends of his girlfriend sleeping in the same room.  In discussing Phillips v The Queen, it was noted at [43] – [44] …

“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 proof of the issue whether the accused had done the acts of which the complainants’ complain.  In such a case, the High Court emphasised the continuing necessary 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 a 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 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.”^[6]

9. [9]
   In this case there are similarities between the cases in that the girls were both sisters, they both lived in the same house with the applicant, they were of similar ages and there was penetration of the vagina but there are significant differences.  The offending against EH was opportunistic and the applicant took advantage of the voluntary attendance of the child in the swimming hole and closeness to pursue what apparently was an attraction that he felt for the child. On the other hand the attacks on KH were more serious in that they were clearly planned.  They involved sneaking into her room and were persistent and brazen.  Those features are lacking in the case of EH. 
10. [10]
    The defence submit that the offending acts are also different, however, that, in itself, would not be a reason to separate the trials. The significant difference is between the modus and the impetus for the offending. It means, in my view, that the evidence does not possess sufficient cogency to be cross admissible and therefore the indictment must be severed.