R v CBM

Court of Appeal (Gotterson JA, North and Henry JJ)

29 August 2014

In this matter the appellant had been charged with committing sexual offences against two children. Each were cousins of each other and of the appellant. The complaints were of similar age. The nature and circumstances of the sexual offences were similar and they were committed in consecutive time periods. A single indictment was presented against the appellant alleging offences against both complainants. A pre-trial application was made to have the charges relating to each of the complainants heard separately. That application was refused on the basis that there were many factors which evidenced an underlying unity between the offending described by each complainant. The trial was conducted by a different judge.

At the conclusion of the evidence in the trial and before addresses, the prosecutor sought a “similar fact direction”, submitting that the effect of the pre-trial ruling was that the evidence of each complainant was “cross-admissible on a similar fact basis … going both ways between the two”. That application was resisted and the trial judge ruled that no similar fact direction would be given to the jury. Unfortunately, the trial judge did not deal with what the jury should be told in the light of his decision; ie the inability to use the evidence in relation to one of the complainants in relation to the charges concerning the other complainant.

Henry J (with whom Gotterson JA and North J agreed) allowed the appeal. The following important points were made in his Honour’s careful reasons:

•                 At common law there is a long established principle in relation to cases involving sexual offences that “because such cases are peculiarly likely to give rise to prejudice, against which a direction to the jury is unlikely to guard, if an accused is charged with multiple sexual offences the charges should not be tried together if the evidence on one count is not admissible on another count”: Sutton v The Queen and De Jesus v The Queen.

•                 In Queensland, however, the joinder of more than one charge in the one indictment against the same person is permissible under s 567 of the Criminal Code, where the charges are “founded on … a series of offences of the same or similar character”.

•                 Although the charges in the present matter were, prima facie, joinable, under s 597A(1) of the Code, the court may order a separate trial of different counts in an indictment if, whether before or during the trial, the court forms the opinion the accused person may be prejudiced in his/her defence by reason of being charged with more than one offence in the same indictment.

•                 In many cases where an application is made for separate trials relating to separate complainants, the argument is often made by the prosecution that the evidence of the complainants is cross-admissible as “similar fact evidence”. It follows that on an application for a separate trial a judge should consider whether the evidence relating to the two complainants would amount to relevant propensity evidence because it has a high level of cogency to justify admission: Pfennig v The Queen. The focus of the court should be on whether each complainant’s evidence has a high degree of probative force in aiding to prove charges relating to another complainant or complainants and in doing so the Court has to precisely identify the circumstantial reasoning by which the evidence of one complainant is said to have probative force in aiding to prove offending against the other complainant.

•                 If all that can be determined after the above consideration is that the accused has a propensity or disposition to commit a sex offence the evidence will not be admissible for lack of cogency. The situation is different where there is a “particular distinctive propensity”.

•                 In the circumstances of the present case, the circumstances of offending were so similar that it was appropriate that the evidence of each complainant was cross-admissible and could be used as supporting the proof of the charges in respect of the other complainant.

•                 However, when similar fact evidence is to be used in this manner it was necessary to give the jury an appropriate direction as to the manner in which the evidence might be used. In this case, the jury should have been warned in accordance with the determination about similar fact evidence that the evidence could not have been so used. No direction was given and, as a result, a new trial was ordered.

QLR 2014-37: