DISTRICT COURT OF QUEENSLAND

CITATION:	R v CG [2015] QDC 229	
PARTIES:	THE QUEEN
v
CG	
FILE NO/S:	92/14 	
DIVISION:	Criminal	
PROCEEDING:	Application 	
ORIGINATING COURT:	Bundaberg	
DELIVERED ON:	18 June 2015	
DELIVERED AT:	Bundaberg 	
HEARING DATE:	15 June 2015	
JUDGE:	Smith DCJA 	
ORDER:	1.	I sever the count involving the complainant ER 	from the indictment.
2.	The application is otherwise dismissed.	
CATCHWORDS:	CRIMINAL LAW – INDICTMENT - JOINDER OF COUNTS- whether counts should be severed – whether the evidence of one complainant is admissible concerning the other complainants- discretion to sever
Criminal Code 1899 (Q) ss 567, 590AA, 597A 
De Jesus v R (1986) 68 ALR 1
Phillips v R (2006) 225 CLR 303
Pfennig v R (1995) 182 CLR 461
R v MAP [2006] QCA 220
R v MAY [2007] QCA 333
R v R [1997] QCA 277	
COUNSEL:	Mr J. McInnes for the defendant
Mr C. Wallis for the Crown	
SOLICITORS:	Legal Aid Office (Q) for the defendant
Office of the Director of Public Prosecutions for the Crown	
Introduction
[1]	This is an application pursuant to s 590AA of the Criminal Code by the defence to sever counts on an indictment presented against the defendant. 
Charges
[2]	The defendant is charged with the following counts: 
(a)	rape of KC at Elliott Heads on date unknown between 20 February 2002 and 30 November 2003 (count 1); 
(b)	indecent treatment of JC at Elliott Heads on a date unknown between 20 February 2002 and 30 November 2003 (count 2); 
(c)	rape of JC at Elliott Heads on a date unknown between 20 February 2002 and 30 November 2003 (count 3); 
(d)	indecent treatment of JC at Toowoomba on a date unknown between 20 February 2002 and 31 December 2004 at Toowoomba (count 4); 
(e)	indecent treatment of JC at Burnett Heads on a date unknown between 12 March 2003 and 31 December 2005 (count 5); 
(f)	rape of ER on a date unknown between 1 January 2006 and 30 June 2007 at Millbank (count 6). 
[3]	The basis of the application by the defence is that separate trials should be ordered in the exercise of the court’s discretion under s 597A of the Code. 
Background 
[4]	The applicant is known to all three children through his relationship with TC the older sister of KC and JC and the aunt of ER. TC first met the defendant when she was 19 years of age in 1997 and was living with her parents and siblings in Helidon New South Wales. KC had known the defendant since she was a young child and JC knew the defendant since she was about 10 years of age. TC and the defendant had four children together. 
Allegations by KC
[5]	KC was born on 29 December 1987.
[6]	KC firstly gives evidence of some uncharged acts. She alleges that when she was between 13 and 14 and she visited the defendant and TC who lived in Griffith and stayed with them in their unit. 
[7]	Uncharged act number 1 involves an incident where she was asleep at night. She woke up and found the defendant sitting at the end of the couch rubbing his hand up the inside of her leg inside her pants and then clitoris. She told him to go away. 
[8]	A second incident happened in Griffith. She was asleep on the lounge and woke up to find the defendant’s penis inside her vagina. He made a “shushing” sound to keep her quiet then gave a grunt, got off and walked to the bedroom. She saw semen running out of her vagina and had a shower. 
[9]	The third uncharged act occurred in Griffith at the defendant’s unit. It was the afternoon, she was awake lying on a couch on her stomach, he walked up behind her pushed her face into the pillow, pulled her pants down got on top of her back and put his penis in her vagina and had sex with her. He said “hurry up and get your pants on your sister will be home soon”. 
[10]	The final uncharged act occurred in Griffith when she went to her sister and the defendant’s unit and took a friend with her. TC and the complainant heard the defendant say “I know little sluts like you’se like giving head. I’ll give you a fifty bag of weed if you give me a head job”. 
[11]	As to count 1 she was between 14 and 15. She recalls TC, the defendant and their children were staying with her family for a while at Elliot Heads. She was asleep in the bedroom she shared with JC who was not there as she was at a sleepover. In the middle of the night she was lying on her left side and woke up when the defendant rolled her onto her back telling her to “shush”. He them lay on top of her pulled her pants off, put his penis in her vagina pushing it in and out. He stopped when one of the kids stirred and TC coughed. He got up without finishing and left the room and went straight down the hallway to the toilet. She put her pants on and stayed in the room.
[12]	 It may be seen there are similarities between uncharged acts 1 and 2 and the charged count which involves brazen behaviour by the defendant waking her to sexual activity at night.
JC 
[13]	JC was born on 13 March 1990.
[14]	The first incidents between JC and the defendant are also uncharged acts in Griffith New South Wales. She was about 10 or 11, she stayed overnight at the defendant and TC’s unit at Griffith. 
[15]	Uncharged act number 1 involves her sleeping on the couch and waking up during the night to find the defendant at the end of the couch with his hands between her legs. He had his hand under her undies and finger in the vagina. She recalled this hurt. TC was in the shower at the time. 
[16]	The second uncharged act also occurred in the same unit when she was 10 or 11. He took her into the bedroom made her lay on the bed, took her pants off and licked her vagina and then put his penis inside her vagina which hurt. She started crying and told him to stop. He stopped and continued with oral sex until TC came home. 
[17]	Returning to the charged acts (count 2), JC was staying with TC and the defendant  at Elliott Heads. JC was asleep on the lounge and woke to the defendant rubbing her chest and in between her legs on the outside of her pants. She kicked him and told him to go away and he left. She was between 12 and 13 at the time
[18]	Count 3 involves another occasion when she was asleep on the lounge in the same unit. She woke up to the defendant putting his penis in her vagina. She indicated it hurt and pushed him away. He stopped, got up and walked away. 
[19]	Count 4 relates to an incident at Toowoomba. The complainant was asleep in the garage and woke up to the defendant rubbing up the inside of her leg. She told him to stop and he told her “women should do everything for their boyfriends or they’ll leave you and cheat on you” and that “men don’t like it when you say no in the middle of sex”. He got up and left. 
[20]	Count 5 relates to an incident at Burnett Heads. She was asleep in the lounge and woke up to the defendant rubbing her hair and chest on the top of her clothes. The complainant’s friend RR woke up and told the defendant to go away and started swearing at him. He got up and left. TC recalled this incident. The defendant told TC he had seen the complainant JC asleep with her hair across her mouth and had brushed the hair off her mouth with his hand when she woke up. 
[21]	There are similarities between the uncharged act number 1 and counts 3, 4 and 5 which all involve brazen behaviour by the defendant waking her to sexual activity at night.
ER
[22]	Count 6 involves ER who was born on 15 January 1996. She is younger than the others. The incident is removed in point of time. It happened at Millbank. The complainant was sitting on the couch watching TV. The defendant came up from behind her grabbed her shoulders held her mouth so she couldn’t scream. He then put his penis inside her vagina repeatedly for about five or six minutes. 
Detection and arrest
[23]	As to the defendant’s detection and arrest KC made a complaint to her mother LC about the defendant in 2005/2007. In 2009 KC told TC what the defendant had done to her. A statement was provided by KC to the Police on 3 November 2012. 
[24]	Sometime between 2008 and 2011 TC confronted the defendant and he told her “the only one I’ve touched is Jennifer I got under the doona and touched her on her private part for a few minutes and then I knew it was wrong and I took my hand away.” There was a later text message confirming this statement by the defendant. 
[25]	The complainant JC gave a statement to Police on 5 November 2012. 
[26]	ER gave a statement to the Police on 1 November 2012. 
[27]	The defendant declined to be interviewed on 27 March 2013. 
Submissions 
[28]	The defence submits: 
(a)	the evidence of ER sets her allegations apart from the others as the time frame is distinctly different, the nature of the rape allegation is different – she alleges that forceful rape commenced while she was awake both JC and KC allege penetration commenced as they slept;
(b)	uncharged conduct recently alleged by her is not significant in extent or nature as distinct from JC and KC;
(c)	as between JC and KC there are some similarities in the nature of the charged rapes and the circumstances in which they were committed;
(d)	the uncharged conduct with respect to KC and JC is different;
(e)	whilst there might be some similarities overall there is not a sufficient pattern to render the evidence of KC and JC cross admissible;
(f)	the court should not strive to find consistency (R v R [1997] QCA 277);
(g)	R v MAP [2006] QCA 220 provides a good analysis of the application of the principles;
(h)	because of the prejudice associated with sexual offences (a grave risk) there should be a separate trial with respect to each complainant. 
[29]	The Crown submits: 
(a)	the nature of the offending in this case is sufficiently similar to demonstrate the requisite nexus to establish that the charges are properly joined;
(b)	the offending here is against female relatives in the 10 to 12 year age frame who with the exception of two incidents (counts 3 and 6) of this being overnight;
(c)	two of the three complainants are offended against in their sleep;
(d)	the applicant told KC (count 1) to “shush” and placed his hand over ER’s mouth;
(e)	the three complainants allege an incident in which the offending involves overt brazen invasive sexual assault with a chance of detection;
(f)	each complainant alleges penile penetration;
(g)	the alleged defending occurred generally in close temporal succession. 
(h)	in each offence of rape the applicant overcame resistance by offending while the child was asleep or by force;
(i)	there was an underlying pattern to the behaviour such that there is no reasonable view of the evidence consistent with the innocence of the applicant;
(j)	the evidence of each complainant is cross admissible. 
Relevant law 
[30]	Multiple allegations of sexual offences should be tried separately except where evidence of one count is admissible on the other count (see De Jesus v R (1986) 68 ALR 1 at [16]). 
[31]	In Pfennig v R (1995) 182 CLR 461 it was said that the admission of similar fact evidence lies in its possessing a particular “prohibitive value or cogency” such that if accepted bears no reasonable explanation other than the inculpation of the accused in the offence charged.
[32]	In Pfennig it was held that it is not required for there to be striking similarity before the propensity evidence is admitted. I note in Pfennig the offender pleaded guilty to one of the charges. In Pfennig at p 484 it was noted:
“Striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the relevant probative force if the evidence does not possess such characteristics.”
[33]	In Phillips v R (2006) 225 CLR 303 it was held that at 320:
“The ‘admission of similar fact evidence ... is exceptional and requires a strong degree of probative force’. It must have ‘a really material bearing on the issues to be decided’. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’ The criterion of admissibility for similar fact evidence is ‘the strength of its probative force’. It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence. The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused’. Admissible similar fact evidence must have ‘some specific connexion with or relation to the issues for decision in the subject case’.”
[34]	It was further noted in Phillips at 321:
“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.

…

(at 322)  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 in order to overcome the prejudicial effect of the evidence was not shown to exist for any other reason.”
Conclusion 
[35]	In my respectful opinion in this case the evidence of the complainants KC and JC is cross admissible with respect to the other. In my opinion there are sufficient similarities in each matter to reach that conclusion. It seems to me that the particular signature involved is that both girls woke to the defendant engaging in sexual activity with them. This was in circumstances where despite the presence of TC and his own children in the house the defendant as part of his modus “snuck” into where they were sleeping and started touching them whilst they were asleep. 
[36]	KC in uncharged act one was awoken, while staying with her sister and the defendant, to the defendant rubbing her leg and inside of her pants. 
[37]	Uncharged act number two again while she was staying with the defendant and TC she awoke to the defendant with his penis inside her vagina. 
[38]	Count 1 involves her staying in a house with TC, the defendant and their children and being awoken by the defendant in the middle of the night who then raped her. 
[39]	JC with respect to uncharged act number one alleges she was sleeping at the defendant and TC’s unit and was awoken to find the defendant with his hands between her legs during the night. Count 2 involves her being awoken from sleep to the defendant rubbing her chest and in between her legs. Count 3 involves her being asleep and being awoken when the defendant put his penis in her vagina. 
[40]	Count 4 involves her being awoken by the defendant rubbing the inside of her leg. Count 5 involves her being awoken to the defendant rubbing her hair and chest. 
[41]	It seems to me that both complainants were roughly a similar age, the relationship between the defendant and the complainants was similar, and a particular hallmark of the offending was the defendant in a brazen way carrying out a sexual activity and as such waking each of the complainants from their sleep. In the circumstances taking the evidence at its highest there is no reasonable view of the evidence of KC and JC other than as supporting an inference the accused is guilty of the offences charged. 
[42]	The evidence discloses an underlying pattern and as such has achieved a strong degree of probative force. It may also be noted that the charged acts concerning KC and JC occurred over a three year period commencing in 2002. The uncharged acts occurred in the same time period. 
[43]	In those circumstances the propensity evidence involving KC and JC is cross admissible and therefore the test set out in s 567 of the Criminal Code is met as between KC and JC. In my view there is a nexus for connection between the offences to establish a series.
[44]	On the other hand I consider the offending with ER is different. The offending in her case occurred when she was awake watching TV. I do not consider this offending has the same hallmark as the offending involving KC and JC. 
[45]	I then need to consider s 597A of the Criminal Code. In my opinion bearing in mind the hallmark to which I have referred with respect to both complainants, the probative nature of the evidence far outweighs any prejudicial effect. Of course careful directions will need to be given as to the use the jury can make of the evidence. I also note that I have not had regard to any suggestion of collusion by reason of the s 597A(1AA) of the Code in reaching my decision. 
[46]	In the circumstances my determination is the counts involving KC and JC be heard together and the count involving ER be heard separately.