R v CDA

In this case the appellant was convicted of sexual offences against three different children: EM, HM and AM. The prosecution relied on similar fact evidence as part of its case against the appellant. The similar fact evidence was led from CC, and her mother, TJ. It related to allegations of sexual offences which had occurred when CC was a child. The appellant had previously been convicted of sexual offences in relation to those allegations. Justice Henry (with whom Mullins P and Bond JA agreed) considered that the purported similarities relied on by the prosecution to justify the admission of the similar fact evidence were either: not supported by the evidence or had no or inconsequential probative force; and lacked the requisite degree of probative force required to satisfy the exacting threshold for admissibility required by the common law. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

Mullins P and Bond JA and Henry J

16 December 2022

Background

CA (the “appellant”) was convicted of sexual offences in relation to EM, HM and AM, who were all sisters that the appellant had babysat as children (together, the “complainants”). [3], [14]. The appellant had previously been convicted of sexual offences in relation to CC, who was his stepdaughter. [4], [8]. The prosecution intended to use this evidence as similar fact evidence, which was the subject of a challenge in a pretrial hearing. [9]. The pretrial hearing trial judge ruled against the appellant and allowed the reception of the similar fact evidence. [10]. The similar fact evidence was left to the jury on the basis that “the similarities in the accounts of the [complainants] and CC were such as to make it objectively improbable the accounts of the [complainants] and CC would have such similar qualities unless the offending occurred”. [12]. The appellant appealed against conviction on the primary basis that the admission of the similar fact evidence caused a miscarriage of justice. [6]–[7].

Whether the admission of the similar fact evidence caused a miscarriage of justice

Justice Henry (with whom Mullins P and Bond JA agreed) observed that the use of similar fact evidence on the basis that it has “significant probative value”, which is the lower threshold of the uniform evidence law, is not enough to meet the more exacting standard of the common law. [60]–[61]. For similar fact evidence to be admissible against an accused it must involve features such as “a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion that there is no reasonable view of them consistent with innocence of the accused”. [60]. Whilst uniform evidence law cases such as R v Bauer [2018] HCA 40; (2018) 266 CLR 56 provide guidance “in illuminating the applicable logic” it is imperative that a trial judge ensures that similar fact evidence meets the higher common law threshold for admissibility: R v McNeish [2019] QCA 191; (2019) 2 QR 355. [62]. The prosecutor had relied on the following features as purported similarities:

(a) the children were all female;

(b) the children were all underage;

(c) the children were all prepubescent;

(d) the children were inside the appellant’s home;

(e) the appellant had acted in a “brazen manner”;

(f) the appellant imposed himself on the children sexually;

(g) the appellant expressed an intention not to take the virginity of the children;

(h) the appellant had awoken the children to engage in sexual activity;

(i) the appellant took advantage of the children opportunistically;

(j) there was more than one participant in the sexual activity;

(k) the appellant did not talk whilst engaging in sexual activity; and

(l) the appellant imposed himself without a period of “grooming”. [63], [84]–[86].

Justice Henry (with whom Mullins P and Bond JA agreed) observed that some of the features of the offending, which were said to be distinctively similar, on close examination, were contentions which lacked evidential support. [64]. This highlights the need for a trial judge to be wary of the “potentially illusory force of a prosecutor’s long list of features of alleged similarity”. [64]. Only the italicised similarities had a proper evidential foundation: see (a), (b), (c), (e), (f) and (i). [65]. However, these similarities were, in effect, that the allegations involved sexual offending against female children in circumstances which were “sadly very common” for offending of this nature. [65]. In absence of a more compelling degree of similarity, distinctiveness, underling unity or connection, these features did not possess the requisite probative force to render the evidence of the offending against CC admissible against the appellant as similar fact evidence. [64], [88]. The remaining similarities either lacked evidentiary support or had either no or inconsequential probative force. [66]–[86].

Disposition

In the result, the appeal was allowed, the convictions were set aside, and a retrial was ordered. [1]–[2], [5], [91]–[92].

D Kerr