Phillips v The Queen [2006] HCA 4 Date of Order: 9 December 2005 Date of Publication of Reasons: 1 March 2006 B58/2005
ORDER
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 24 September 2004, and in place thereof order that:
(a) the appeal to that Court be allowed;
(b) the convictions in respect of counts 2, 4, 5, 6, 7 and 8 of the indictment are quashed; and
(c) there be retrials, conducted separately, on each of the following counts:
(i) count 2 for rape;
(ii) count 4 for rape;
(iii) count 5 for unlawful carnal knowledge;
(iv) count 6 for unlawful carnal knowledge and count 7 for rape; and
(v) count 8 for assault with intent to rape.
On appeal from the Supreme Court of Queensland
Representation:
A J Glynn SC with J D Henry for the appellant (instructed by Robertson O'Gorman)
L J Clare with S G Bain for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Phillips v The Queen
Criminal Law – Information, indictment or presentment – Joinder of counts – Criminal Code (Q), ss 567, 597A – Series of offences of same or similar character – Whether admission of evidence of each complainant in relation to all counts prejudicial to appellant such that separate trials should have been ordered.
Criminal Law – Evidence – Admissibility of similar fact evidence – Appellant charged with eight counts of sexual offences against six complainants –Whether evidence in relation to counts involving one complainant admissible in relation to counts involving other complainants – Whether similar fact evidence admissible on the issue of consent – Whether similar fact evidence admissible on issues other than consent – Application of principles for admissibility of similar fact evidence stated in Pfennig v The Queen (1995) 182 CLR 461 – Whether similar fact evidence has strong degree of probative force sufficient to outweigh prejudicial effect.
Criminal Law – Jury – Verdict – Unreasonable verdicts – Whether verdicts only explicable as the product of compromise between jurors – Whether intervention required to prevent injustice.
Criminal Law – Retrial – Appellant acquitted on one count of rape – Whether admission of closely related evidence at retrial on different counts would fail to give full effect to that acquittal.
Criminal Code (Q), ss 567, 597A.
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ. After a trial by jury conducted in the District Court of Queensland (White DCJ), the appellant, Daniel Cris Phillips, was convicted on three counts of rape, two counts of unlawful carnal knowledge, and one count of assault with intent to commit rape. An appeal against conviction to the Queensland Court of Appeal was dismissed[1]. An appeal against…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Phillips v The Queen [2006] HCA 4
Case
[2006] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Phillips against his convictions for sexual offences. The case involved eight counts on an indictment, stemming from allegations made by six complainants. The central dispute concerned the joinder of these counts and the admissibility of evidence relating to each complainant in relation to all counts, particularly in light of the appellant's defence.
The legal issues before the High Court included whether the admission of evidence from each complainant in relation to all counts was so prejudicial to the appellant that separate trials should have been ordered. The Court was also required to determine the admissibility of similar fact evidence, specifically whether evidence relating to one complainant could be admitted in relation to counts involving other complainants, and whether such evidence was admissible on the issue of consent or other issues, applying the principles established in *Pfennig v The Queen*. Furthermore, the Court considered whether the verdicts were unreasonable, potentially being the product of jury compromise, and whether a retrial on certain counts would be affected by a prior acquittal on another count.
The High Court reasoned that the trial judge's directions to the jury regarding the use of similar fact evidence were inadequate to overcome the substantial prejudice to the appellant. The judge had limited the use of this evidence to the issue of consent, but the complexity of the charges and the number of complainants made it highly probable that the jury would use the evidence to infer guilt across all counts, rather than solely on the specific issues permitted. The Court reiterated the stringent common law requirement for similar fact evidence to possess a strong degree of probative force, a threshold not met in this case. The Court found that the joinder of counts and the admission of evidence relating to all complainants in a single trial created an unacceptable risk of unfairness, contrary to the principles of a fair trial and the requirements of decisions like *Pfennig*.
Consequently, the High Court allowed the appeal, quashed the convictions for counts 2, 4, 5, 6, 7, and 8, and ordered separate retrials on each of these counts. The Court also clarified that the acquittal on one count of rape did not preclude the admission of relevant evidence on retrial for other counts, provided appropriate directions were given to the jury.
Orders
Orders of the court
1. Appeal allowed. 2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 24 September 2004, and in place thereof order that: (a) the appeal to that Court be allowed; (b) the convictions in respect of counts 2, 4, 5, 6, 7 and 8 of the indictment are quashed; and (c) there be retrials, conducted separately, on each of the following counts: (i) count 2 for rape; (ii) count 4 for rape; (iii) count 5 for unlawful carnal knowledge; (iv) count 6 for unlawful carnal knowledge and count 7 for rape; and (v) count 8 for assault with intent to rape.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
What was the subject of these "similar lies"? Which of the three matters of fact described above did they relate to – the acts alleged, consent or honest and reasonable mistake of fact as to consent, or a combination of them? The answer "all" is suggested by the immediately succeeding passage: "One could almost imagine that if each of these counts were tried separately, at the conclusion of the case defence counsel would be urging the jury to have doubts about the truthfulness of the complainant's evidence or its reliability because it would be highly unlikely that the accused, knowing that he was able to be identified, knowing that he was proceeding to sexual intercourse against the complainant's will, would do such a thing because of the potential consequences."The basis on which the evidence was left to the jury The summing up. Between the start of the trial and its conclusion the trial judge moved towards a much narrower answer to the question. This was no doubt caused by a narrowing in the issues as the trial proceeded. This narrowing came to be revealed by the lines taken by the appellant's counsel in cross-examining the complainants and eventually by the opening address delivered on the appellant's behalf after the prosecution case had closed. The shifting view of the trial judge is to be seen in numerous passages in the transcript of the trial to which counsel for the appellant referred – in the absence of the jury before the evidence closed, before, during and after addresses, and during and after the summing up. Thus in the summing up the trial judge relied on a formula embodied in the question: "[W]hat are the probabilities that all six girls have lied when they say they did not consent to [the appellant] dealing with them sexually[?]" That formula was limited to lies on the issue of consent, for the trial judge said of the similar fact evidence:"[Y]ou can only use it in judging the reliability of the girls when they say they did not consent to [the appellant] dealing with them sexually. You cannot use it to decide whether or not there was penetration; you cannot use it to decide whether or not [the appellant] knew any particular girl was not consenting, that is, whether he might or might not have made an honest mistake." The fact that the jury were told to use the similar fact evidence on the issue of consent alone meant that it could not be used, in considering those counts where the appellant merely denied the complainant's evidence of the acts alleged (counts 3 and 6-8), on that issue. On those counts it could only be used if the jury rejected the appellant's denial of the acts alleged and had to turn to the question of consent. The trial judge also told the jury that, in considering any charge, the evidence on other charges could not be used in a piecemeal way: the evidence of other complainants had to be considered in combination, or not at all. The trial judge said: "[Y]ou cannot say to yourself, 'Oh, well, they can't all be telling lies, therefore, they must all be telling the truth'; you cannot decide, for instance, that you believe one or two girls and then say, 'Well, we're satisfied he's raped on two occasions, therefore, he's more likely to have raped on the other occasions, therefore, we'll find him guilty of the lot'."
Decision
Reasons for decision
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ
This reasoning is unsound. The appellant did not ask this Court for an acquittal on count 6, or oppose a retrial on count 6 in relation to unlawful carnal knowledge. If there is to be a retrial on count 6, it is open to the prosecution to call evidence about the baseball bat, for to do otherwise would render the balance of MM's testimony "incomplete and artificial"[48]. The acquittal of rape on count 6, for reasons discussed above, was a merciful verdict. From the appellant's point of view, one beneficial aspect of the mercy shown is that it eliminated the possibility that MM did not consent to the appellant's conduct in relation to count 6. The appellant remains entitled to contend at any second trial, as he did at the first trial, that he did not participate in sexual intercourse. The evidence about the baseball bat is not prejudicial on that issue in relation to count 6. It is simply part of the story. And it is material on count 7. If it becomes known at any second trial that there had been an earlier trial and an acquittal – and this might arise by reason of the cross-examination of witnesses at the second trial on their evidence at the first – it can be made clear to the jury that the previous acquittal of rape cannot be challenged and that the evidence must not be taken to prove guilt on the earlier charge of rape[49].[48]R v Storey (1978) 140 CLR 364 at 397 per Mason J. [49]R v Storey (1978) 140 CLR 364. Conclusion: a stringent rule It can be appreciated that separate trials of the several complaints by different complainants adds to the cost of the prosecutions and the defence of the accused. However, the dangers, in the trial of the appellant, of admitting the evidence relevant to all of the several allegations against him, was very great. Despite the efforts of the trial judge to give the jury precise instructions on the separate admissibility and use of different evidence, in a case such as the present, such instructions were bound to be confusing and prone to error. The prejudice to the fair trial of the appellant was substantial. Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ