R v AGIUS

[2007] SADC 5

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v AGIUS

[2007] SADC 5

Judgment of His Honour Judge Chivell

30 January 2007

CRIMINAL LAW - EVIDENCE - SIMILAR FACTS

R v Hoch (1988) 165 CLR 292; Sutton v R (1993-4) 152 CLR 528; R v Liddy (2002) 81 SASR 22; Phillips v R [2006] HCA 4; Pfennig v R (1995) 182 CLR 461, considered.

R v AGIUS
[2007] SADC 5

1. The accused is charged on a single Information with 10 counts of rape.  The charges arise from five different incidents, each involving a different complainant.  Each incident has given rise to two counts.

2. In order to illustrate the arguments of counsel, I set out in tabular form in Annexure “A”, a very brief summary of each incident, as it appears from the prosecution declarations.  I will refer to the complainants as CH, MH, AI, MB and KG respectively.  The similarities in the accounts given by each complainant are obvious.  I will examine them in more detail shortly.

3. Mr Braithwaite, counsel for the accused, seeks orders that “the counts in relation to each of the alleged victims be severed from the Information and tried separately”.  The grounds relied on are that the evidence relating to each complainant is admissible only on the charge relating to that complainant, and that the accused would be “prejudiced and embarrassed in his defence” if all counts in the Information were tried together.

4. Section 278 of the Criminal Law Consolidation Act reads:

   Joinder of charges

   (1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.

   (2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.

   (3)This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.

5. By the way the Rule 9 application is framed, I do not understand Mr Braithwaite’s contention is that the counts are not properly joined. He sought the exercise of the discretion contained in s278(2) to sever counts to avoid a situation where the defence is prejudiced or embarrassed.

6. Mr Braithwaite argued that the evidence of the different complainants is only admissible on the counts relating to them, and is not cross‑admissible on the other counts.

7. Ms Telfer, counsel for the Director of Public Prosecutions, conceded that, if the evidence of the complainants is not cross‑admissible, in the circumstances of this case, severance should be ordered (Outline, para 7).

8. Ms Telfer referred me to the well known passage in the judgment of Mason, Wilson and Gaudron JJ in R v Hoch (1988) 165 CLR 292 at p294-295:

   Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ..... That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than alleged by the prosecution.

9. The High Court considered a somewhat similar set of circumstances to that before me in Sutton v R (1993-4) 152 CLR 528. Mitchell J, who conducted the trial at first instance, told the jury:

   Some of the common features are of little significance.  For example, the wearing of jeans is common to a large section of members of the community, as is the smoking of cigarettes.  There was however striking similarity in the method of abduction and the method of conducting the alleged victim to the places where the offences were said to have been committed; a similarity in the fact that in each case the offences were alleged to have been committed in the grounds of a school at night and finally the commission in the first [semble, second] and third sets of charges of acts of vaginal, oral and anal intercourse.  I was of the opinion that the similarities between the circumstances of the incidents deposed to by the witnesses for the prosecution were so striking that it should be left to the jury to decide whether, upon identification to its satisfaction of the accused as the person who committed one set of rapes, it was satisfied that he must have committed the other set of rapes and must have been guilty of the attempted rape. (p553)

10. Not without some hesitation, (see Gibbs CJ at p537 and Brennan J at p554) the appeal was dismissed.  Brennan J described the case as “close to the border line”.

11. In that case, of course, the court did not have the DNA evidence which is before me.  If accepted, this evidence proves that the semen found from four of the complainants is one billion times more likely to have come from the accused than from someone else (Statement of Both, p6).  I agree with Ms Telfer that the DNA evidence is circumstantial evidence of the identity of the alleged offender, which, when taken with the evidence of the various complainants, is very strongly probative of the fact that the accused was involved in these incidents.

12. There is no DNA evidence in relation to MB, however.  If the jury is satisfied beyond reasonable doubt that the accused is the person who had sexual intercourse with the other four complainants, then, in my opinion, applying Mitchell J’s approach in Sutton (supra), the evidence of the circumstances of the incidents involving MB is so similar to the others that it should be left to the jury to decide whether they are also satisfied that he must have been involved in MB’s case as well.  Without analysing them exhaustively, I refer to:

    ·the incidents involving MH, AI, MB and KG were about 3-4 months apart;

    ·MB was offered a lift in similar terms to the other complainants while walking in the street and the offender was seated in a car;

    ·MB’s description of the car as “newish” and a “silvery colour” was similar to that of AI;

    ·both MB and AI were taken to River Street, Hindmarsh;

    ·the sexual assault upon MB proceeded upon similar lines to the other four complainants except perhaps that she seemed to struggle less;

    ·after the assault, the offender wiped himself with a tissue, as he did in AI’s case;

    ·the offender then drove MB to a spot nominated by her, in the same way that the offender did in relation to all of the other complainants (except MH who escaped); and

    ·MB’s general description of the offender was similar to, but not identical with, that of the others (medium or heavy build, dark hair, round face, olive or dark skin).

13. In my opinion, the evidence in relation to each count is cross‑admissible on the other counts because it is relevant to the issue of whether the accused committed the acts alleged by each of the five complainants.

14. Further, Ms Telfer argued that the evidence is cross‑admissible because the similarities demonstrate the high degree of improbability that the events occurred other than the way the complainants allege.  In Sutton (supra), Deane J said (at p555-556):

    In a case where there is evidence connecting an accused with the particular offence with which he is charged, evidence that he has committed other offences my (sic) be relevant to the question of his guilt of the charged offence even though it does no more than establish that he is the sort of person who is likely to have committed that offence.  Such evidence of propensity to crime or to a particular kind of crime is not, however, made admissible merely by reason of its character as such.  The classic statement of the general proposition to that effect is that of Lord Herschell L.C., speaking for the Judicial Committee in Makin v Attorney-General (N.S.W.)(80):

    “It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried” (emphasis added).

    That statement of the proposition was as one of two related but “independent” propositions which “together cover the entire field” (per Lord Hailsham of St. Marylebone, Director of Public Prosecutions v Boardman (81)).  Lord Herschell’s second proposition was:

    “On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury ....”

    At p556-557:

    In Makin (87), Lord Herschell L.C. instanced two cases where evidence of the commission of other offences may be “relevant to an issue before the jury”, namely, where “it bears upon the question whether the acts alleged to constitute the crime ... were designed or accidental, or to rebut a defence which would otherwise be open to the accused”.  Those instances were not intended to be and are not exhaustive (see Harris v Director of Public Prosecutions (88)).  The authorities establish that evidence of the commission of other offences may be admissible if it be probative not merely of propensity to commit crime or a particular crime but of the actual commission by the accused of the act or acts which are said to have constituted the basis of the offence with which he is charged or of some other fact to be proved (see, e.g. R v Sims (89); Director of Public Prosecutions v Boardman).

15. In R v Liddy (2002) 81 SASR 22, Mullighan J, with whom the other members of the court agreed, quoted, with approval, the summing up of Nyland J at trial in which her Honour said (at p73-74):

    The relevance lies in the improbability of five witnesses giving accounts of events which disclose a similar pattern of behaviour unless those events occurred in the ways they described, but I must make it quite clear that before you can use the evidence in this way, you must be satisfied beyond reasonable doubt of at least one of the charges.  Then, and only then, can you use that evidence as assistance to draw an inference of guilty as to the other charges.

16. Indeed, Williams J thought that the summing up was unduly favourable to the accused (p139).

17. Mr Braithwaite relied almost solely on the judgment of the High Court in the recent case of Phillips v R [2006] HCA 4. In that case, a young man was charged with rape and other sexual offences involving, initially, five complainants and subsequently, a sixth. The charges arose in a small country town in Queensland, and the accused and each of the complainants knew each other. There was no issue of identification.

18. The trial judge refused an application for separate trials because:

    The probative value of the evidence is its ability to show the improbability of similar lies by each of the complainants. ([233]).

19. As their Honours in the High Court observed at [46]:

    That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did.  To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.

20. The High Court repeated previous formulations of the rules regarding similar fact evidence at [54]:

    Despite that passage, and despite the reformulation of the tests stated in Pfennig v The Queen in R v O’Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality.  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 decisions in the subject case”.  As explained in Pfennig v The Queen:

    “[T]he evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise form the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.” (footnotes omitted)

21. Their Honours then observed that the similarities relied on by the prosecution were “entirely unremarkable” (at [56]) and lacked the degree of probative force required to outweigh the prejudice which would result if the evidence were admitted (see [58]).

22. The court emphasised that the formulation of the trial judge’s task in Pfennig v R (1995) 182 CLR 461 at 485 remains valid (paras 63-64):

    What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations.  First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case.  Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions.  Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.  Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.  But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.

    The tests advanced in O’Keefe are expressed differently.  Because they are expressed differently it cannot be assumed that in every case they would operate identically to the tests expressed in Pfennig.  Indeed, much that is said in the reasons in O’Keefe might be read as suggesting that the tests propounded there were intended to have a different operation from those stated in Pfennig.  These are reasons enough to conclude that the O’Keefe tests should not be adopted or applied.  Intermediate and trial courts must continue to apply Pfennig.

23. Keeping those principles in mind, I conclude that the similarities I set out above are strongly probative of the behaviour of the accused, because it is so highly improbable that the witnesses would give such similar accounts unless the incidents occurred as they described.  I am satisfied, for the purposes of this ruling, that there is no reasonable view of the similar fact evidence which is consistent with innocence.  For that reason, the probative value of the evidence is so strong that it, in the words of Brennan J in Perry v R (1982) 150 CLR 580 at 609, “clearly transcends its prejudicial effect”.

24. I reject Mr Braithwaite’s submission that the similarities merely go to whether each complainant consented, which was held to be an improper basis for admission in Phillips (supra).

25. Accordingly, I find that the evidence of each of the five complainants is cross‑admissible in relation to all of the counts on the Information, on both bases put forward by the prosecution; namely, that it is relevant to both identification and to proof of the acts alleged.

26. The application for severance is refused.

Complainant	CH	MH	AI	MB	KG
Age at offence	17	32	Not known	30	23
Date of offence	10 August 1997	26 December 2003	18 April 2004	7 July 2004	14 November 2004
First contact with offender	Unknown - intoxicated.  Had been at St Kilda Beach.  First memory in car.	Walking in Hindley Street.	Walking in Hindley Street looking for a taxi.	Walking in Torrens Road.	Intoxicated, walking along Currie Street.
Basis on which entered vehicle	Told was being taken home.	Getting a ride to the Berkeley Hotel.	Driver said it was a taxi.	Getting a lift further along Torrens Road.	Driver said it was a taxi.
Description of vehicle	White car.  Old model?  Datsun.  Rusty.  Noisy engine.	White Commodore.	Silver - “new looking”.	Silvery colour - “newish”.	White sedan, “newish looking”.
Location of offence	Fifth Avenue, Salisbury - isolated - paddocks on side of road.	Ifould Street, City - isolated car park.	River Street, Hindmarsh.	River Street, Hindmarsh.	South Parklands
Behaviour leading up to sexual intercourse	Headbutted and then slapped face.	After struggle inside car, pulled MH out, told to bend over and touch toes.	Weapon to throat in car, forced into back seat.	Grabbed her head, told her to hold his erect penis while driving.	Struggle inside car, attempting to kiss her.
Nature of sexual behaviour	Pushed over bonnet of car, vaginal intercourse from behind, then demanded fellatio, then further vaginal intercourse from behind while she leaning in car, ejaculated.	Vaginal intercourse from behind, ejaculated, then demanded fellatio.	Cunnilingus, fellatio, further cunnilingus, then vaginal intercourse in back of car with condom, then outside car, pushed over boot of car, vaginal sexual intercourse from behind, ejaculated.	Forced head down to fellatio, got in back of car, MB not struggling, vaginal sexual intercourse on back seat, ejaculated.	Forced into back seat.  Fellatio, then vaginal sexual intercourse.
Behaviour after sexual intercourse	Accused dressed after, but he threw knickers out of car, landed on a tree.  Drove her to a spot near her home nominated by her.	Took money from bag.  Put a number on mobile phone.  MH got out of car and ran away.	Wiped AI and himself with a paper towel.  Left condom at scene.  Dropped off at a spot on Anzac Highway nominated by her.	Wiped himself with tissues and threw out window.  Drove her to Stop 18 on Torrens Road, nominated by her.	Took wallet.  Drove to a spot near her home nominated by her.
Description of offender	Aboriginal, solid build, average height, short hair, moustache, big nose, deep voice, body odour.	Fat face, chubby, sunken eyes, Greek or Italian, deep voice.	Possibly Lebanese, late 20’s, early 30’s, shaved head, dark complexion, heavy build, muscly not fat, 172-176 cms, smelt clean.	37-40, medium weight, dark hair, clean cut, shaved, round face, one eyebrow, piggy, squinty eyes, olive skin, no smell, shaven pubic hair.	Shaved head, dark skin, “mixed white and African or something”.  Not Asian.  No smell.
DNA Taken?	Low vaginal swab	High vaginal swab	Underpants	No	G-string
Match Probability	> 1 billion : 1	> 1 billion : 1	> 1 billion : 1	> 1 billion : 1