R v Daley

[2004] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Daley [2004] QDC 070
PARTIES:	R v DALEY, Richard Anthony
FILE NO/S:
DIVISION:
PROCEEDING:	Ruling.
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	4 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	BC HOATH DCJ
ORDER:
CATCHWORDS:	CRIMINAL LAW – SIMILAR FACT – whether counts 1-9 on the indictment should be severed from counts 10-15
De Jesus v. The Queen (1986) 68 ALR 1.
Pfennig v. The Queen (1994) 182 CLR 461.
The Queen v. Hooper (1999) QCA 310.
The Queen v. O'Keefe (2001) 1 Qd. R 564.
COUNSEL:
SOLICITORS:

Mr Johnson, counsel for the accused, has submitted that in that way, Mr Johnson consents to the counts involving different complainants within that severance being heard together.

pursuant to section 597A of the Criminal Code I should order
that counts 1 to 9, involving three separate complainants,
should be severed and tried separately from counts 10 to 15,
which involve two other complainants.

Counts involving sexual offences are likely to arouse
prejudice and a joint trial of counts involving different
complainants should generally not occur unless the evidence
relating to each count is admissible in proof of other
counts on the indictment. (See De Jesus v. The Queen (1986)
68 ALR 1).

To be admissible as similar fact evidence, the evidence requires a high degree of probative force. That probative force will generally be found in striking similarity, unusual features, underlying unity, system or pattern.

Although such characteristics are not essential prerequisites for admissibility, evidence lacking such characteristics will generally not have the probative force to be admitted as similar fact evidence. (See The Queen v. Hooper (1999) QCA 310).

The assessment of whether evidence has such probative force in The Queen v. O'Keefe (2001) 1 Qd. R 564).

as to be admitted as similar fact evidence is one of degree.
In making that assessment it must be borne in mind that the
admissibility of such evidence is exceptional because of the
potential prejudice involved to an accused and the
possibility of the jury's misuse of such evidence.
The evidence should not be admitted unless the trial Judge
is satisfied that there is no rational or reasonable view of
the evidence consistent with the accused's innocence. (See

Having read the statements in this matter, whilst there are some similarities in the evidence of the three complainants in counts 1 to 9 and the two complainants in counts 10 to

15, those similarities do not individually or in combination
have that high degree of probative value to enable the

evidence to be cross-admissible as similar fact evidence.

...

HIS HONOUR: I will adjourn the matter for mention to 9.30 on Friday, the 26th of March. In the meantime he will be remanded in custody.