R v CDA

Case [2022] QCA 258

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDA [2022] QCA 258

PARTIES:

R
v
CDA
(appellant)

FILE NO/S:

CA No 85 of 2021
DC No 164 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 16 April 2021 (Coker DCJ)

DELIVERED ON:

16 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2022

JUDGES:

Mullins P, Bond JA and Henry J

ORDERS:

1.   Appeal allowed.

2.   Convictions quashed.

3.   The appellant be retried on the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was found guilty of 19 counts of sexual offending which he stood trial for against three complainant sisters when babysitting them as children – where the appellant had previously been convicted at trial of sexual offending against his stepdaughter CC – where admissibility of the evidence of offending against CC was challenged at a pre-trial hearing before the learned trial judge – where the evidence was ruled admissible by the learned trial judge – where the evidence was led to the jury at trial on the basis that in the absence of collusion it was objectively improbable that the sisters and CC would complain of such similar offending against them unless it actually occurred – where the appellant appeals against conviction on the ground that the trial judge erred by admitting into evidence propensity evidence of two witnesses (CC and her mother TJ) – whether there were sufficient similarities or other connection between the offences against CC and those against the three sisters as to make them admissible for the alleged offending against the sisters – whether the pre-trial hearing judge erred in ruling the evidence of offending against CC to be admissible

Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, followed
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, cited
McPhillamy v The Queen (2018) 92 ALJR 1045; (2018) 361 ALR 13; [2018] HCA 52, applied
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, followed
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited
R v McNeish[2019] QCA 191, distinguished

COUNSEL:

B J Power KC, with R G Logan, for the appellant
P J McCarthy KC, with A J Walklate, for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Henry J.

  2. BOND JA:  I agree with the reasons for judgment of Henry J and with the orders proposed by his Honour.

  3. HENRY J:  The appellant was convicted by a jury of all 19 counts on which he stood trial for sex offending against three sisters when babysitting them as children.  In appealing his conviction, he makes no complaint about the joinder of those charges.  Rather, he…

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AGLC
R v CDA [2022] QCA 258
Case
[2022] QCA 258
Decision Date

CaseChat Overview and Summary

The appellant was convicted of 19 counts of sexual offending against three sisters, who were children at the time, while babysitting them. This case involved an appeal against conviction on the ground that the trial judge erred by admitting into evidence the propensity evidence of two witnesses, the appellant's stepdaughter CC and her mother TJ. The appellant had previously been convicted of sexual offences against CC and this evidence was challenged at a pre-trial hearing before the trial judge, who ruled it admissible. The appellant appealed against the conviction on the ground that the trial judge erred by admitting into evidence the propensity evidence of two witnesses, CC and TJ.

The court was required to determine whether there were sufficient similarities or other connection between the offences against CC and those against the three sisters to make them admissible for the alleged offending against the sisters. The court also had to consider whether the pre-trial hearing judge erred in ruling the evidence of offending against CC to be admissible.

The court held that the trial judge erred in admitting the propensity evidence of CC and TJ. The court found that there were not sufficient similarities or other connection between the offences against CC and those against the three sisters to make them admissible for the alleged offending against the sisters. The court also found that the pre-trial hearing judge erred in ruling the evidence of offending against CC to be admissible.

The court quashed the convictions and ordered a retrial. The court held that the wrongful reception of such prejudicial evidence made the trial so overwhelmingly more adverse to the appellant's prospects, than the trial to which the appellant was entitled by law, as to have deprived him of a chance which was fairly open to him of being acquitted. The court emphasised the need for trial judges to analyse whether features of alleged similarity are properly supported by the facts and to be wary of the potentially illusory force of a prosecutor's long list of features of alleged similarity.

Orders

Orders of the court

1. Appeal allowed.

2. Convictions quashed.

3. The appellant be retried on the indictment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

While this reads as two grounds, namely the wrongful reception of the evidence and an erroneous direction regarding it, its focus as argued was the allegedly wrongful reception of the evidence. The erroneous direction was in effect said to reflect no more than that it referred to the same inadequate justification relied upon for permitting the evidence to be received at trial.The reception of the evidence The appellant had been convicted at an earlier trial of three offences against CC, namely:1. maintaining a relationship with a child (between 30 April 2003 and 13 December 2008);2. rape (on or about 16 July 2008);3. rape (on a date unknown between 31 October 2008 and 13 December 2008).He was sentenced to 14½ years imprisonment. The jury in the present matter was of course unaware of these facts but they explain why the present controversy did not arise in the context of a joinder dispute. The admissibility of the evidence of offending against CC was challenged at a pre-trial hearing before the learned trial judge. So was the joinder in the indictment pertaining to the three sisters of charges related to another complainant, NA. Upon hearing argument the learned trial judge ruled against the joinder of NA’s charges but in favour of the reception into evidence of the offending against CC. His Honour’s subsequently published reasons for ruling that the evidence was admissible did not analyse and identify what special probative features the evidence of the offending against CC held relative to the charged offending, save for observing, of the argument the prosecution had advanced:“To be frank, much of what is argued in relation to that matter is, in my view, unable to be challenged by the applicant.”[2][2]AR Vol 2 p 122 [44]. This appeared to have been an acceptance of the force of the prosecution’s argument as to similarities in the alleged offending against the three sisters as compared to the offending against CC. Unfortunately, it was not realised that the force of the similarities identified was illusory and that some of them lacked evidentiary support. The similarities relied upon will be returned to later in these reasons. At trial the evidence relating to CC was left to the jury on the basis that the similarities in the accounts of the sisters and CC were such as to make it objectively improbable the accounts of the sisters and CC would have such similar qualities unless the offending occurred.[3][3]AR Vol 1 p 30 L 41, p 47 L 34, pp 68-69. To explain why the evidence did not have that quality and did not carry the strong degree of probative force required by the authorities, it is first necessary to review the nature of the alleged offending against the three sisters and against CC and analyse the extent of any connection between them.The alleged offending against the three sisters Firstly, as to the sisters, they were EM, HM and AM. At the time of the alleged offending EM was aged between 9 and 13, HM was aged between 7 and 12 and AM was aged 7.

Decision

Reasons for decision

A final additional feature emphasised in argument by the respondent was the appellant imposing himself sexually without a period of grooming. Again, this feature is not supported by the evidence. True it is the evidence was not extensive on the topic, but that does not mean there was no grooming. CC’s evidence was so lacking in detail as to the earlier offending that no reliable inference is available either way on the topic of grooming of her. Moreover, evidence from the sisters such as a lingering touch when lifting AM off a horse, tickling and showing pornography provided some evidence of grooming of them.Conclusion On analysis it is apparent this was not a case in which the offending against CC had such similar qualities to the offending alleged against the three sisters as to make it objectively improbable that there was no explanation for those qualities other than that the offending occurred as alleged. Such connection as existed as between the offending against CC and the offending against the three sisters did not lay in similarities so striking as to be beyond coincidence and make it objectively improbable events occurred other than as alleged. Rather, if it existed at all, it lay in a propensity to sexually offend against female children in circumstances of control and risk of exposure. They are circumstances which are sadly common to this class of offending. In this case they are not of such a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion there is no reasonable view of them consistent with the innocence of the accused. This stands in marked contrast to the compelling probative force of the evidence of each sister in proof of the case as it related to the sisters. That evidence involved such underlying unity as to unquestionably meet the common law admissibility threshold, for reasons explained by the majority in the factually similar case of R v McNeish.[48] Indeed, it was such an apparently strong case that the evidence of the offending against CC could not have been thought essential to its potential success.[48][2019] QCA 191; see also R v Davidson [2019] QCA 120 and R v Spreadborough [2020] QCA 291. Nonetheless, it cannot be said (and in this event the respondent did not argue) there has been no substantial miscarriage of justice. The wrongful reception of such prejudicial evidence, for the purpose of supporting a conclusion of guilt, made the trial so overwhelmingly more adverse to the appellant’s prospects, than the trial to which the appellant was entitled by law, as to have deprived him of a chance which was fairly open to him of being acquitted.[49][49]Wilde v The Queen (1998) 164 CLR 365. The inevitable result is that the convictions must be quashed and a re-trial ordered.Orders The orders should be:1. Appeal allowed.2. Convictions quashed.3. The appellant be retried on the indictment.

Ratio Decidendi

Legal Principle Established

That distinction warrants a note of caution. As was explained by the majority in R v McNeish,[35] reference to High Court cases relating to the uniform evidence regime, such as Hughes v The Queen[36] and R v Bauer,[37] can provide some guidance “in illuminating the applicable logic” when identifying how evidence in this field may have probative value. However, it is imperative that in assessing the strength of the probative value of such evidence, trial judges are cautious to ensure the evidence has such strong probative value as to meet the common law’s high threshold for admissibility.[35][2019] QCA 191 [42].[36](2017) 263 CLR 338.[37](2018) 266 CLR 56.Consideration In ruling in favour of admitting the evidence of the offending against CC the learned trial judge’s reasons appeared to adopt the force of the prosecution’s argument as to similarities in the alleged offending against the three sisters as compared to the offending against CC. Of that argument, his Honour said:“What is also argued is that it is apparent that the applicant’s sexual interest, particularly in young children, remains, and that it was certainly close in time to the offending involving the … sisters, and that it was offending which was conducted when he was an adult. The similarities which are, of course, factors to be taken into consideration, particularly when the various matters detailed in R v McNeish are considered, were outlined and included the following:a)The complainants are all female;b)The complainants are all underage;c)The complainants, at least when first offended against, were pre-pubescent;d)The children were in the applicant’s own home or the home in which he resided at the time;e)The applicant acted in a brazen manner;f)The applicant imposed himself on the children sexually;g)The offending involved the distinctive feature of not wishing to take the virginity of a pre-pubescent child;h)The offending involved the distinctive feature of the defendant waking the children during sleep to engage in sexual acts; andi)The offending occurred by the defendant taking advantage of the children being regularly placed in a position where they were within the defendant’s reach.”[38][38]AR Vol 2 pp 121-122. This case illustrates the need for trial judges to analyse whether features of the above kind are properly supported by the facts, for, as will soon be demonstrated, some of the alleged features were not so supported. The case also illustrates the need for trial judges to be wary of the potentially illusory force of a prosecutor’s long list of features of alleged similarity. Features a), b) and c) reflect that the case involves alleged offending against female children and features e), f) and i) are sadly very common components of sex offending against children. Of course, that does not mean those features are collectively without some potential probative value for, as the majority explained in Hughes v The Queen,[39] an inclination to engage in such conduct and to act upon that inclination is “unusual as a matter of ordinary human experience”. In Hughes the majority concluded proof of such an interest and a tendency to engage in it may be capable of “significant probative value”.[40] But “significant probative value” is the uniform evidence threshold, which, as the majority explained in Hughes, is not informed by the more demanding requirements of the common law threshold that is applicable here.[41] In the absence of some more compelling degree of similarity, distinctiveness, underlying unity or connection, the aforementioned six features do not carry the special degree of probative force required by the common law test.[39](2017) 263 CLR 338, 361 [57].[40](2017) 263 CLR 338, 344 [2]; Cf McPhillamy v The Queen (2018) 361 ALR 13.[41](2017) 263 CLR 338, 354 [34].