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R v JKP[2025] QDCPR 9

R v JKP[2025] QDCPR 9

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JKP [2025] QDCPR 9

PARTIES:

THE KING

(respondent)

v

JKP

(applicant) (anonymised)

FILE NO:

45 of 2024

DIVISION:

Criminal

PROCEEDING:

Application under s 590AA of the Criminal Code

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

13 February 2025

DELIVERED AT:

Cairns

HEARING DATE:

5 February 2025

JUDGE:

Fantin DCJ

ORDER:

  1. 1.
    Application allowed.
  1. 2.
    The defendant P be tried separately from her coaccused, G.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – EMBARASSMENT OR PREJUDICE – where co-accused are jointly charged with counts of deprivation of liberty, rape and sexual assault  arising out of the same events – where each prosecution case largely depends on the credibility and reliability of the principal witness, the complainant – where some evidence admissible against the co-accused is inadmissible against the applicant – where that inadmissible evidence is prejudicial and tends to bolster the evidence of the complainant – whether the risk of prejudice can be cured by appropriate direction to a jury – whether a jury could be expected to assess the credibility of the complainant by ignoring evidence which corroborates the complainant – whether a separate trial should be ordered

Legislation 

Criminal Code, s 590AA

Evidence Act 1977 (Qld), s 21A

Cases 

R v Bannon (1995) 185 CLR 1

Webb v The Queen (1994) 181 CLR 41

R v Webb (1992) 59 SASR 563

Ali v R (2005) 214 ALR 1

R v Collins; Ex parte Attorney-General (Qld) [1996] 1 Qd R 631

R v Davidson [2000] QCA 39

Gilbert v The Queen (2000) 201 CLR 414

Dupas v The Queen (2010) 241 CLR 237

R v Alexander and McKenzie (2002) 6 VR 53

R v Belford & Bound (2011) 208 A Crim R 256

R v Swan [2013] QCA 217

R v Vecchio & Tredrea [2016] QCA 71

R v Dubois & O'Dempsey [2016] QSC 176

Destanovic v The Queen [2015] VSCA 113

COUNSEL:

R O'Gorman KC for the Applicant

N Friedewald for the Respondent 

SOLICITORS:

O'Reilly Stevens Lawyers for the Applicant

The Office of Director of Public Prosecutions for the

Respondent

Mellick Smith & Associates for the Co-Accused

  1. Nature of the application
  1. [1]
    Two defendants are charged on a single indictment with multiple counts of historical sexual offending against the same complainant.
  2. [2]
    The indictment charges the applicant, P, and her co-accused, G, with: 
  1. Count 1: Deprivation of liberty (both)
  1. Counts 2, 17, 23, 35, 41, 48 & 49: Sexual assault (G only)
  1. Counts 3, 9, 10, 19, 26 – 28, 30, 40, 43 & 47: Common assault (G only)
  1. Count 4: Assault occasioning bodily harm (G only)
  1. Counts 5, 15, 16, 21, 22, 24, 25, 29, 32 – 34, 42, 44 – 46: Rape (G only)
  1. Count 6: Wounding (G only)
  1. Counts 7, 12 – 14, 18, 20, 38 & 39: Rape (both)
  1. Counts 8, 11, 36 & 37: Sexual assault (both)
  1. Count 31: Stupefying to commit an indictable offence (G only)
  1. [3]
    Each offence is alleged to have been committed in 1979 against the same complainant. 
  2. [4]
    There are 49 counts in total, arising from 12 incidents. Of those, the applicant P is charged with 13 counts arising from six incidents.
  3. [5]
    The matter is listed for a joint trial in the week commencing 24 February 2025.
  4. [6]
    The applicant P seeks a ruling pursuant to section 590AA of the Criminal Code that she be tried separately from her co-accused G.
  5. [7]
    The basis for her application is that letters allegedly written by the co-accused G to the complainant are not admissible in the case against the applicant P and the prejudice which would be occasioned to P by being tried jointly with G could not be adequately addressed by jury directions.
  6. [8]
    For the reasons that follow, the application is allowed.
  1. Overview of prosecution case 
  1. [9]
    The circumstances of the alleged offending are summarised below.  
  2. [10]
    The defendants were in a de facto relationship, with the applicant P aged 23 to 24 years old and the co-accused G aged 30 to 31 years old. The complainant, a 17 year old girl, was living with them pursuant to a care arrangement. 
  3. [11]
    It is alleged that in early 1979, the defendants and the complainant drove from Western Australia to Cairns. Between January and March 1979 in Cairns and on a fishing trawler, the defendants jointly deprived the complainant of her liberty and perpetrated sexual offences against her. 
  4. [12]
    The alleged offences include:
    1. forcing the complainant to masturbate the co-accused G during the road trip;
    2. multiple, violent, penile vaginal rapes by the co-accused G, on the fishing trawler and in a house, many in the presence of other men (whose identity is unknown) and the applicant P;
    3. restraining the complainant in a locked room with bars on the windows;
    4. the applicant P orally raping the complainant in the presence of the co-accused G;
    5. the co-accused G having unknown men rape the complainant, while restrained, during card games in the presence of both defendants;
    6. the co-accused G raping the complainant, while restrained and with a gun held to her head, in the presence of the applicant P and two unknown men and threatening to “blow her brains out”;
    7. the co-accused G raping the complainant, while restrained and blindfolded, and procuring unknown men to rape her, both in the house and on the trawler, and threatening to kill her if she resisted; and
    8. on the trawler the co-accused G holding a knife to the complainant’s throat.
  5. [13]
    Eventually the complainant was able to access a telephone and call her caseworker in Perth, who arranged a flight back to Western Australia. 
  6. [14]
    The defendants told the complainant not to tell anyone about the offending and threatened to kill her and her family if she did. 
  7. [15]
    Two days after her return to Perth, the complainant told her child welfare officer and a psychologist that the co-accused G had raped her. The matter was not reported to the police. At that time, the complainant did not allege any offending by the applicant P. 
  8. [16]
    Over a number of years, the complainant made disclosures to her psychologist about both defendants, including the applicant. In 2009 the complainant gave the first full account of the allegations against both defendants in a statement prepared for an application under the Western Australian Redress scheme. In 2019 the complainant made a police complaint in Western Australia. In 2021 the offending was referred to the Queensland Police Service. In May 2023, both defendants were arrested and charged. Neither participated in a record of interview.
  9. [17]
    The Crown case principally relies on the complainant’s account of the offending. There are no identifiable witnesses to the alleged offending. There is preliminary complaint evidence from six people the complainant spoke to before making her first formal police statement, including her case worker, two psychologists, friends and family members.
  1. [18]
    The complainant’s credibility and reliability will be the central issue at trial. 
  2. [19]
    In addition to the evidence of the complainant and the preliminary complaint witnesses, the Crown relies on three letters, allegedly written by the co-accused G and left on the windscreen of the complainant’s car.
  3. [20]
    The complainant worked as a ward clerk at a maternity ward in a hospital between May 1998 and June 2007. There was an occasion when the co-accused G attended the ward to visit his daughter. When he saw the complainant, who was wearing a name tag, he appeared to recognise her and said, ‘Oh this is where you work’ and ‘Maybe we could start up again and have some fun and games’. 
  4. [21]
    After the complainant saw the co-accused at the hospital, three notes were left on the windscreen of the complainant’s car. The letters, particularly one lengthy letter, appear to contain detailed admissions to the offending by both the co-accused G and the applicant P and threats to commit similar offences in future. The complainant provided the notes to police.
  5. [22]
    This ruling is based on submissions which assume the admissibility or inadmissibility of certain pieces of evidence. Despite the absence of particulars, with one exception, the criminal responsibility of the applicant P appears to be founded on her being responsible as a party to the offences with which she is charged, on the basis that she aided the co-accused G by her presence, encouragement, and in some cases, conduct. The exception is one count of sexual assault in which P is said to be responsible as a principal.
  6. [23]
    The application proceeded on the basis that the three letters left on the complainant’s windscreen are prima facie admissible in the case against the co-accused G as out of court statements by him containing admissions or confessions.  While the admissibility of the statements is ultimately a matter for the trial, and there is no direct evidence that the co-accused G was the author of the letters, there is a strong circumstantial case upon which a jury could draw the inference that the co-accused G was the author of the letters. 
  7. [24]
    There is no evidence that the applicant P was the author of the letters, or that they were written on her behalf or with her knowledge. 
  8. [25]
    The co-accused G was not a party to this application, did not seek to be heard on it, and was excused from the hearing. 
  9. [26]
    The respondent Crown conceded that the letters, and admissions contained therein, were only admissible in the prosecution case against the co-accused G, were not admissible against the applicant P, and could not be used by the jury in assessing the prosecution case against her.[1] In my view, that concession was appropriately made.
  1. Legal principles
  1. [27]
    The principles that govern applications for separate trials are well settled. Where the prosecution case is that two or more persons have joined in the commission of an offence, all or any number of them may be jointly indicted. The starting point is that they will be tried together and the principle is not usually weakened by the fact that one co-accused implicates another co-accused.[2] 
  2. [28]
    The applicant accepted as correct the following summary of the relevant principles in the respondent’s outline of submissions:
    1. There are ‘strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together.’[3] 
    2. Consideration of the evidence by the same jury at the same trial gives the jury ‘the means of obtaining a conspectus of the respective roles’ of each accused in the crimes with which they are charged.[4] It is likely to avoid inconsistent verdicts.[5] It also facilitates ‘a single and final inquiry into matters that arise out of or essentially involve common issues of fact or law’ and promotes ‘the due and expedient administration of criminal justice’.[6] 
    3. The mere fact that ‘evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials.’[7] 
  1. Courts give directions to instruct juries in their deliberations about the case put against each of a number of joint defendants and about the evidence that is admissible against each. 
  2. It is not assumed that juries are unaffected by matters of possible prejudice, but it may generally be assumed that juries comply with the directions given to them.[8] 
  3. The court’s statutory discretion to direct separate trials should be exercised where there is a real risk of positive injustice to an accused, were he or she to be tried jointly with the co-accused.[9] 
  1. [29]
    The applicable principles and authorities were summarised by Fraser JA in R v Belford & Bound.[10] If the question of prejudice can be addressed by directions, the general rule is that juries understand and follow the directions they are given by trial judges. Cases where separate trials should be ordered include those where the evidence admissible against each accused is ‘impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other’;[11] where the directions given by the trial judge to avoid prejudice require “remarkable mental feats” that the jury could not be expected to perform;[12] or where the prejudice may be such as to ‘cause a jury even to ignore the directions of a trial judge’.[13] 
  2. [30]
    The categories of case where separate trials should be ordered are not closed.
  3. [31]
    One example of the category of case where a separate trial has been ordered, or it was accepted on appeal that it should have been ordered, is where a principal prosecution witness’s evidence was impermissibly bolstered by a co-accused’s out of court statement to the detriment of the jury’s assessment of that witness when considering the case of the accused. 
  4. [32]
    That is the category of case relied upon by the applicant in this application, on the basis that the directions given by the trial judge to avoid prejudice require “remarkable mental feats” that the jury could not be expected to perform.
  1. The evidence admissible only against the co-accused G
  1. [33]
    The lengthy letter contains a statement which is inculpatory of the applicant P: ‘how about if I do you like [P] would do you, warming you up for me, fucking you with my tongue just like [P] would’. However, Ms O'Gorman KC for the applicant conceded that the prejudice arising from that statement alone would not be sufficient to warrant an order for a separate trial, and could be adequately dealt with by way of appropriate jury directions. 
  2. [34]
    The prejudice relied upon by the applicant is that the letters provide significant corroboration of the complainant’s version of the defendants’ offending, thus bolstering her credibility. 
  1. [35]
    Examples of the way in which the contents of the letters (particularly the lengthy letter) corroborate the complainant’s account of the offending include the following:
    1. the letter is addressed to ‘Baby girl’. This is the nickname the complainant says the coaccused G used for her during the alleged offending;
    2. the letter includes a passage which reads, ‘I’ve been thinking about how you can make amends for making me angry…’. This is consistent with the complainant’s account that the co-accused G was regularly angry with her during the period of the alleged offences;
    3. the letter includes a passage which reads, ‘… there’s only one thing to do to a stuck up bitch and that’s to tie her down and fuck her.’ This language is consistent with the complainant’s account that the co-accused G regularly tied her up when he sexually assaulted or raped her;
    4. the letter includes the statement, ‘I have lots of games we could play that would please me.’ This statement is consistent with the complainant’s evidence that the co-accused G raped her in the context of playing “games” where raping the complainant was the prize, or otherwise described raping her as a game or entertainment;
    5. the letter says, ‘I have friends that want to play as well’. This is consistent with the complainant’s evidence that the defendants regularly facilitated other people raping her while they watched or participated;
    6. the letter includes the question, ‘Am I still the best fuck baby girl’. This is consistent with the complainant’s evidence that the co-accused G would ask her that question when he raped her;
    7. the letter threatens that, if the complainant resists the sexual offending at least implicitly threatened in the letter, ‘… the last thing you will feel is my knife slicing your throat and the last thing you will see is your blood splatter on my face as I ever slowly [sic] fuck you as you take your last breath.’ This is consistent with the complainant’s evidence that the co-accused G threatened her with violence, including death, if she resisted his sexual offending and her evidence that he had held a knife to her throat during the alleged offending.
  2. [36]
    The applicant submitted, and the Crown conceded, that these statements significantly bolster the complainant’s credibility, and that this is a matter of importance in the context of a Crown case which relies so heavily on the jury’s acceptance of the complainant’s credibility. 
  3. [37]
    The applicant submitted that jury directions to exclude the letters from their consideration of the case against her will not cure the prejudice to her because it will not be possible for a jury, aware of the contents of the letters and the ways in which they corroborate the complainant’s evidence, to use the letters (properly) to assess the complainant’s credibility in the case against the co-accused G but then disregard them to assess the complainant’s credibility in the case against the applicant P. 
  1. Submissions
  1. [38]
    The applicant submitted that the case was analogous to R v Swan [2013] QCA 217. In finding that the refusal of a separate trial constituted a miscarriage of justice in that case, Holmes JA (as her Honour then was), with whom Applegarth and Jackson JJA agreed, observed, at paragraph [44], that ‘the difficulty of fashioning a coherent and comprehensible direction which explained that Mondientz’ credit had to be assessed separately on each of the two cases highlights the problem of attempting to try Smith and Swan together.’ 
  2. [39]
    Her Honour continued:
  1. [45]
    The problem is of the same kind as was identified in successful appeals in R v Demirok, R v Jones and R v Pham: the impossibility of arriving at a direction which the jury could both comprehend and be expected to follow. Everything turned on Mondientz’ credibility, which could be regarded differently depending on which set of evidence – that admissible against Smith or that admissible against Swan – it was assessed against. A jury could not reasonably be expected to arrive at a view of her credit based on the case against Smith and then embark again on the same exercise, but disregarding that evidence, in relation to the case against Swan. 
  1. [46]
    In my respectful view, the judge who heard the separate trial application did not appreciate the real nature of the difficulty involved and was mistaken in thinking that the problems of a joint trial could be overcome by the standard direction that the out of court statements of one accused were not admissible against the other.
  1. [47]
    To borrow from the words used in Winning v R, (referred to by this court in R v Roughan & Jones) the prospect of undertaking the assessment of Mondientz’ credit on two separate sets of evidence was 
  1. “such that no directions of a trial Judge would be adequate to ensure that a jury could be expected to perform ‘the remarkable mental feats required of them’”. 
  1. Given that Swan’s conviction depended on Mondientz’ evidence; given the many causes for concern about her credibility; and given that her credit is likely to have been bolstered by evidence inadmissible against him; one must conclude that Swan has been denied a real chance of acquittal by the failure to grant him a separate trial. (Citations removed)
  1. [40]
    In separate reasons in Swan, Jackson J (with whom Applegarth J agreed) expressed concern about the difficulty in formulating a practical articulation of the distinction to be drawn between a case where the line has been crossed and one where it has not.[14]  After analysing various authorities, Jackson J considered that the problem which the cases dealt with was one ‘which arises where the crown case against the relevant defendant is weak and turns on the credibility of an important witness or witnesses about whom there is an apparent real question of credibility. A separate trial may be called for where the apparent evidence admissible against another defendant but not against the relevant defendant would have the effect of bolstering the important witnesses’ credibility against the relevant defendant’.[15]
  2. [41]
    The respondent Crown submitted that any risk that the jury would use the contents of the letters allegedly written by the co-accused G to bolster the complainant’s credit, or otherwise against the applicant P, would be guarded against by jury directions. The directions would not require the jury to undertake “remarkable mental feats” that defy logic or understanding in a trial where they would be reminded to undertake their consideration of the case against each defendant on the basis of the evidence admissible in the case against that defendant. 
  1. [42]
    The respondent Crown relied upon R v Vecchio & Tredrea,[16] in which Fraser JA (with whom the other members of the court agreed) concluded at [77] that the directions about giving separate consideration to the case against each defendant guarded against the risk that the jury would use Tredrea’s admissions to bolster the complainant’s credit or otherwise against Vecchio and stated at [78]:
  1. It would unduly erode the strong policy reasons which favour joint trials in cases of the present kind if it were too readily assumed that a jury was unwilling or incapable of following a trial judge’s directions. Even so, I accept that in some such cases of this general nature it might prove difficult – in particular cases it might even be unrealistic – for a jury to disregard admissions by one defendant which bolster a critical witness’s credibility in a case against another defendant. But I do not accept that it was too difficult for the jury in this case. The trial judge’s directions comprehended the relevant risk. They were readily comprehensible, emphatic and repeated. Those directions were strengthened by the compelling explanation of the unfairness involved in not following them. It should be assumed that the jury complied with those directions, with the result that no miscarriage of justice resulted from the appellants’ trials being heard together.
  1. [43]
    The Crown submitted that the prejudice against the applicant P could be adequately cured by jury directions.
  2. [44]
    I was also assisted by the decision of Applegarth J in R v Dubois & O'Dempsey,[17] in which he considered the problem of credibility enhancement of an important witness and credibility enhancement generally, analysing the then recent decision of the Court of Appeal of the Supreme Court of Victoria decision of Destanovic v The Queen.[18] 
  3. [45]
    His Honour referred to the observations of Weinberg and Beach JJA that, in most cases, juries will understand their task is to consider the evidence against each accused separately but there will ‘always be a problem where the prosecution case is based largely on the credibility of a key witness, and that witness’s testimony is supported by evidence admissible against one accused, but not the other.’[19] He noted that cases such as Pham and Swan illustrate the difficulties that can arise in joint trials were matters of credibility are in issue.  His Honour referred with approval to the following statement of principle by Weinberg and Beach JJA:[20] 
  1. An accused is entitled to be tried on the evidence admissible against him or her, and solely on that evidence. The accused is not to be convicted by a ‘side wind’, through evidence that bolsters the credibility of a key prosecution witness, but forms no part of the Crown case against that accused.
  1. [46]
    His Honour concluded:[21]
  1. This important authority highlights the importance of identifying whether, notwithstanding the giving of appropriate directions about the separate consideration of each case and that an accused is entitled to be tried on the evidence admissible against him or her, and solely on that evidence, there is “a real risk that the jury may find the task of compartmentalising the evidence altogether too difficult.”[22]If this is the case, then considerations which favour joint offences being tried at a joint trial must give way in order to avoid substantial prejudice to an accused.
  1. [47]
    In Swan, Holmes JA, citing R v Demirok [1976] VR 244, summarised the reasons for the starting position that co-accused should be jointly tried:[23]
    1. Administrative matters of court time spent and public expense incurred if more than one trial is conducted;
    2. It is against the interests of justice that there should be inconsistent verdicts, so where the accounts of the accused differ or conflict, their differences should be resolved by the same jury at the same trial;
    3. The policy of the law to reach finality as expeditiously as possible; and
    4. The convenience of the witnesses.
  2. [48]
    Applegarth J observed in Dubois & O'Dempsey:[24]
  1. [112]
    Our criminal justice system recognises that joint trials carry certain risks, including credibility enhancement through inadmissible evidence. Those risks are accepted provided they can be removed or reduced to an acceptable level by appropriate directions. The system also operates on the assumption that directions, including the usual direction about the separate consideration of each case and that an accused should be tried solely on the evidence which is admissible against him or her, will be understood and will be observed by a jury. However, the assumption that juries will understand and follow directions given to them by trial judges is a general rule. As noted above, on occasions courts recognise that, despite directions, a jury will find it impossible or extremely difficult to be immune from improper prejudice. Certain directions may require a jury to perform remarkable mental feats in order to avoid misuse of prejudicial evidence which is inadmissible in the case against one accused, but admissible against a co-accused. In some cases the degree of prejudice from evidence that is admissible only in the case of one accused to the case of a co-accused may be so great as to make it unfair to conduct a joint trial. This will be so where, despite direction, a jury is unable to ignore the prejudicial evidence. One particular respect in which the risk of substantial injustice to a coaccused will arise is where, despite directions, there is a real risk that the jury may find the task of compartmentalising the evidence altogether too difficult.
  1. [113]
    In some cases the “dividing line” will be crossed because one or a combination of considerations favour a separate trial. A separate trial should be ordered if, despite anticipated directions to the jury, an accused faces substantial prejudice from inadmissible evidence. For example, the highly prejudicial nature of inadmissible evidence may make it impossible for jurors to ignore it in assessing the credibility of an important prosecution witness, whose evidence is critical to the prosecution of an accused and whose credibility is subject to real question. The prejudicial evidence will have the effect of bolstering the credibility of an important witness against an accused when the evidence is not admissible against that accused.
  1. Discussion and findings
  1. [49]
    Neither defendant gave a record of interview to police. In oral submissions, Ms O'Gorman KC expressly disavowed the possibility that the applicant P would run a “cut throat” defence at trial, to seek to blame her co-accused or conduct her defence so as to suggest they she was coerced or influenced by her co-accused. There was no suggestion that the co-accused G would seek to run such a defence. That concession by Ms O'Gorman KC is an important consideration in the resolution of this application. The fact that neither defendant seeks to run a “cut throat” defence makes the case for a joint trial not as strong as it would have been had these circumstances been present. 
  2. [50]
    However, there are still other factors that favour a joint trial:
    1. The duplication of evidence which is admissible against each defendant at separate trials, causing inconvenience and distress to some witnesses who would have to give the same evidence twice; 
    2. More court time to be spent and public expense incurred which, due to finite judicial resources, will delay other trials; 
    3. Delay to the defendant whose trial awaits the outcome of the first trial. 
  3. [51]
    On the first issue, a special witness order has been made permitting the complainant to give evidence by audio visual link from a remote witness room and for her evidence to be recorded as it is given. That may obviate the need for the complainant to give evidence a second time,[25] although it would mean the quality of the complainant’s evidence (prerecorded rather than live) would be different in the second trial. However there remain multiple interstate, preliminary complaint witnesses who would be put to the inconvenience and distress of giving evidence twice. This consideration favours a joint trial.
  4. [52]
    On the second issue, each separate trial will take less time than a joint trial. But by how much cannot be precisely determined.  Additional public expense is also a factor that favours a joint trial, but not a determinative one.
  5. [53]
    On the third issue, there would be some delay for the applicant P whose trial would occur after the co-accused’s trial. In a case where the alleged offending occurred over 45 years ago and both defendants are now of advanced age, any further delay is a significant consideration that favours a joint trial. However, that must be balanced against the fact that the delay for the applicant’s trial should not be significant. It may even be possible to list the applicant’s trial to immediately follow the trial of the co-accused, in the same sittings, but with a different jury panel. 
  6. [54]
    A competing consideration is the risk that a joint trial which results in the conviction of one or both defendants may lead to an appeal in which the convictions are set aside on the ground that there should have been separate trials, with a new trial or trials ordered. The end result may be three trials rather than two.
  1. [55]
    The ultimate issue is whether the considerations that favour a joint trial are outweighed by the risk that evidence which would not be admitted at the trial of the applicant P would prejudice her right to a fair trial. 
  2. [56]
    In each case of this kind, a fact-specific assessment is required about the risk that a jury will not be able to ignore prejudicial evidence, despite the directions of a trial judge to do so.
  3. [57]
    The evidence which is admissible against the co-accused G, but not admissible against the applicant P, is capable of being identified to the jury in general terms and by reference to the pieces of evidence (e.g. the letters containing the admissions). Directions could be given about a discrete body of evidence. It is not a case where it would be extremely difficult to disentangle the evidence in giving the direction.
  4. [58]
    The allegations against the applicant P are bound up in, and form part of, at least half of the incidents of the sexual conduct charged involving the co-accused G.  They are not separate incidents.  The prosecution case against the applicant P turns upon the jury accepting the evidence of the principal Crown witness, the complainant, as credible and reliable. 
  5. [59]
    The complainant’s evidence contained in her written statements is relatively detailed and specific, against both defendants. It is supported in part by preliminary complaint evidence from a number of sources. The applicant submitted that the preliminary complaint evidence was, at best, neutral because there were delays in complaint and inconsistencies between the complainant’s evidence of preliminary complaint and the preliminary complaint witnesses’ evidence. In cases involving historical allegations of sexual assault, there is nothing unusual about delay and some inconsistency in preliminary complaint evidence; they are common features of such proceedings. Those aspects would likely be the subject of jury directions now required by the Evidence Act 1977.
  6. [60]
    The applicant characterised the prosecution case against the applicant P as ‘not strong’. She emphasised that the initial, contemporaneous, preliminary complaint made in 1979 did not disclose any offending against the applicant P, that disclosures against the applicant P were only made over the course of many years, that the delay in providing a statement to police is considerable (decades), and that the long delay necessarily reduces the credibility and reliability of the complainant’s evidence because of the passage of time. Assuming the letters are admissible in the case against the co-accused G, the prosecution case against him is certainly stronger than it is against the applicant P; although on the information available I would not characterise the case against her as weak. While there is some force in the applicant’s submissions about the strength of the case against the applicant P, it is unnecessary to make a finding about it for the purposes of this application and it is not a determinative factor on this application.
  7. [61]
    The contents of the admissions have the potential to bolster significantly the credibility and reliability of the complainant’s evidence, because of consistency with respect to the nature of the conduct described, which has some striking or unusual features, and the language used to describe it. The contents of the letters are also highly prejudicial because of the depraved and violent nature of some of the conduct described. The statements have significant probative value in the case against the co-accused G. 
  8. [62]
    The problem of fashioning intelligible directions in this case is twofold. A jury would be required to undertake a separate assessment of the credibility of a common witness, the complainant, whose credibility could be regarded differently depending upon which set of evidence – that which is admissible against the co-accused G or that which is admissible against the applicant P – it is assessed against. But there is also a separate problem of credibility enhancement – directing the jury to disregard evidence of the admissions in the letters which are admissible only against the co-accused G but which bolster significantly the evidence of the complainant. 
  9. [63]
    Assuming the jury could comprehend such directions, the issue is whether the jury will not be able to disregard the inadmissible evidence and will, perhaps subconsciously, make impermissible use of it.
  10. [64]
    In a joint trial, the jury would be required to engage in an exercise in mental gymnastics that, in my view, would be impossible or at least unrealistic. They would be directed to take into account the admissions in assessing the complainant’s credibility in the case against the coaccused G, but directed to disregard those same admissions in assessing the complainant’s credibility for the case against the applicant P. The contents of the admissions are likely to bolster the credibility and reliability of the complainant’s evidence overall and as a whole. To expect the jury to put those admissions out of their minds for the purposes of assessing the complainant’s credibility in the case against the applicant P would require the jury to engage in “remarkable mental feats” that the authorities caution against. 
  11. [65]
    There is too high a risk of significant prejudicial evidence which is inadmissible against the applicant P being impermissibly used to bolster or enhance the credibility of the complainant’s evidence in the case against P. That significant risk of prejudice is incapable of nullification by jury directions, however carefully crafted. The risk outweighs the considerations that favour a joint trial. 
  12. [66]
    In the circumstances, the applicant should have a separate trial. 
  13. [67]
    The co-accused G should be tried first. His trial will remain as listed to commence on 24 February 2025. The trial of the applicant P will be listed at the trial callover on 14 February 2025.
  1. Order
  1. 1.
    Application allowed.
  1. 2.
    The defendant P be tried separately from her co-accused, G.
  1. Associate’s Note:
  1. On 4 March 2025, the co-accused G was acquitted after a seven day trial. On 28 April 2025 the Crown entered a nolle prosequi with respect to the counts involving the applicant P.

Footnotes

[1] R v Bannon (1995) 185 CLR 1 at 22 (Dawson, Toohey and Gummow JJ).

[2] Webb v The Queen (1994) 181 CLR 41 at 89 (Toohey J, Mason CJ and McHugh J agreeing) (‘Webb’).

[3] R v Webb (1992) 59 SASR 563 at 585 (King CJ, Cox and Matheson JJ agreeing), cited with approval in Webb (n 2) at 88 – 89 (Toohey J, Mason CJ and McHugh J agreeing). 

[4] Ali v R (2005) 214 ALR 1 at 12 [58] (Callinan and Heydon JJ). 

[5] Webb (n 2) at 88 – 89 (Toohey J, Mason CJ and McHugh J agreeing).

[6] R v Collins; Ex parte Attorney-General (Qld) [1996] 1 Qd R 631 at 637 (McPherson JA and Lee J).

[7] R v Davidson [2000] QCA 39 at [12] (de Jersey CJ and Davies JA, Williams J agreeing), citing R v Harbach (1973) 6 SASR 427 at 432 (Bray CJ, Mitchell and Sangster JJ).

[8] Gilbert v The Queen (2000) 201 CLR 414 at 420 [13] (Gleeson CJ and Gummow J) and 425 [31] (McHugh J); Dupas v The Queen (2010) 241 CLR 237 at 248 [28] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[9] R v Alexander and McKenzie (2002) 6 VR 53 at 67 [31] (Winneke P, Charles and Vincent JJA agreeing). 

[10] (2011) 208 A Crim R 256 at 286 [104] (‘Belford & Bound’).

[11] Ibid, quoting R v Davidson [2000] QCA 39 at [13] (de Jersey CJ and Davies JA, Williams J agreeing). 

[12] Belford & Bound (n 10) at 286 [104] (Fraser JA), citing Winning v The Queen [2002] WASCA 44 at [42] (Olsson AUJ, Malcolm CJ and Steytler J agreeing).

[13] Belford & Bound (n 10) at 286 [104] (Fraser JA), quoting R v Davidson [2000] QCA 39 at [13] (de Jersey CJ and Davies JA, Williams J agreeing). 

 

[14] R v Swan [2013] QCA 217 at [51]-[52] (‘Swan’). 15 Ibid at [64].

[15] [2016] QCA 71. 

[16] [2016] QSC 176 at [103] – [109] (‘Dubois & O'Dempsey’). 18 [2015] VSCA 113 (‘Destanovic’).

[17] Dubois & O'Dempsey (n 17) at [108], quoting Destanovic (n 18) at [135].

[18] Dubois & O'Dempsey (n 17) at [108], quoting Destanovic (n 18) at [130]. 21 Dubois & O'Dempsey (n 17) at [109].

[19] Destanovic (n 18) at [134].

[20] Swan (n 14) at [39]. 24 [2016] QSC 176.

[21] See Evidence Act 1977 (Qld) s 21A(6)(b)(ii)(A).

Close

Editorial Notes

  • Published Case Name:

    R v JKP

  • Shortened Case Name:

    R v JKP

  • MNC:

    [2025] QDCPR 9

  • Court:

    QDCPR

  • Judge(s):

    Fantin DCJ

  • Date:

    13 Feb 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ali v The Queen (2005) 214 ALR 1
2 citations
Jump To
Cite 1 - (2005) 214 ALR 1
Cite 2 - (2005) 214 ALR 1
Bannon v The Queen (1995) 185 CLR 1
2 citations
Jump To
Cite 1 - (1995) 185 CLR 1
Cite 2 - (1995) 185 CLR 1
Destanovic v The Queen [2015] VSCA 113
2 citations
Jump To
Cite 1 - [2015] VSCA 113
Cite 2 - [2015] VSCA 113
Dupas v The Queen (2010) 241 CLR 237
2 citations
Jump To
Cite 1 - (2010) 241 CLR 237
Cite 2 - (2010) 241 CLR 237
Gilbert v R (2000) 201 CLR 414
2 citations
Jump To
Cite 1 - (2000) 201 CLR 414
Cite 2 - (2000) 201 CLR 414
R v Belford and Bound (2011) 208 A Crim R 256
2 citations
Jump To
Cite 1 - (2011) 208 A Crim R 256
Cite 2 - (2011) 208 A Crim R 256
R v Collins; ex parte Attorney-General [1996] 1 Qd R 631
2 citations
Jump To
Cite 1 - [1996] 1 Qd R 631
Cite 2 - [1996] 1 Qd R 631
R v Davidson [2000] QCA 39
4 citations
Jump To
Cite 1 - [2000] QCA 39
Cite 2 - [2000] QCA 39
Cite 3 - [2000] QCA 39
Cite 4 - [2000] QCA 39
R v Demirok (1976) VR 244
1 citation
Jump To
Cite 1 - (1976) VR 244
R v Dubois & O'Dempsey [2016] QSC 176
3 citations
Jump To
Cite 1 - [2016] QSC 176
Cite 2 - [2016] QSC 176
Cite 3 - [2016] QSC 176
R v Harbach (1973) 6 SASR 427
1 citation
Jump To
Cite 1 - (1973) 6 SASR 427
R v Swan [2013] QCA 217
3 citations
Jump To
Cite 1 - [2013] QCA 217
Cite 2 - [2013] QCA 217
Cite 3 - [2013] QCA 217
R v Vecchio & Tredrea [2016] QCA 71
2 citations
Jump To
Cite 1 - [2016] QCA 71
Cite 2 - [2016] QCA 71
R. v Webb (1992) 59 SASR 563
2 citations
Jump To
Cite 1 - (1992) 59 SASR 563
Cite 2 - (1992) 59 SASR 563
Webb v The Queen (1994) 181 CLR 41
2 citations
Jump To
Cite 1 - (1994) 181 CLR 41
Cite 2 - (1994) 181 CLR 41
Winning v R [2002] WASCA 44
1 citation
Jump To
Cite 1 - [2002] WASCA 44

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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