R v Haines, Craig

[2008] NSWDC 259

CITATION:	R v Haines, Craig [2008] NSWDC 259
HEARING DATE(S):	17/11/2008 18/11/2008
JUDGMENT DATE:	25 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application for severence refused.
CATCHWORDS:	Criminal Law - Indictment - Indecent assault - appliction for severence of charges - multiple complainants - admissible nexus between charges - location, time span, Aboriginal female victims, accused's response upon confrontation by victims - coincidence and tendency - concoction - no reasonable possibility of concoction - application declined.
CASES CITED:	Kray [1970] 1 Q.B. 125 at 130-131 De Jesus 22 A Crim R. 375 at 381 Sutton v The Queen (1984) 152 C.L.R. 528 Hock v The Queen (1988) 165 CLR 292 at 297
TEXTS CITED:	Butterworth’s Criminal Practice and Procedure NSW - indictments p.6323.
PARTIES:	Regina Craig Thomas Haines
FILE NUMBER(S):	2007/00008835
COUNSEL:	Defence: D. MacCallum
SOLICITORS:	Crown: Mr G Coles

JUDGMENT

Application for Severance of charge from indictment

1. The Crown has charged the accused, Craig Thomas Haines with three counts relating to unlawful sexual conduct. Each count in the indictment relates to a different complainant. The first charge alleges an indecent assault upon Lauralee M; the second alleges a breaking and entering into a bedroom within a dwelling house known as 38 Toomelah with the intent of indecently assaulting Karina M in circumstances of aggravation. The third charge alleges the accused broke and entered into a second bedroom at 38 Toomelah and indecently assaulted Kirsten M, in circumstances of aggravation. Kirsten M is a 16-year-old cousin of Karina M. In the second and third counts the circumstance of aggravation is that there was a third person present in the respective bedroom, and the accused knew that. All offences are said to have occurred within hours of midnight on 23 ^rd March 2007. The time span for the commission of these offences on the Crown case seems defined as between the early hours of the morning and 6:15am.

2. It would be open to a jury to come to a view the offence alleged to have occurred first in time was the offence of entering the bedroom where Karina was, with an intent of indecently assaulting her. That was followed by the offence alleged against Kristen. The last in sequence on the Crown case was the offending conduct alleged to have occurred against Lauralee.

3. The defence seeks a severance from the indictment of the charge alleging the accused offended against Lauralee. On the Crown case that offence occurs at premises known as 25 Toomelah, a house within 100yds of house 38 Toomelah.

The Crown Cases

4. Karina M gives an account of being asleep in a bedroom with her then boyfriend Aaron Hinch. They were together in a single bed. The room in which they were sleeping had a door lock controlled from inside the bedroom. Karina M locked the door before going to sleep. She woke to feel someone touching her and grabbing her around the waist on her right side. She said, “Who’s that?” No one answered. She saw the accused jump up from the floor on her side of the bed and walk from the room. (Count 2)

5. Meanwhile in a second bedroom Kirsten M was asleep. She was in a single bed. In the same bedroom was Alinta M who was sleeping in another single bed. This room also had a lock on the door. Kirsten had locked the door before going to bed. Kirsten M woke as someone was coming toward her. He jumped on top of her and groped between her legs with his hand. She kicked him and he was pushed from the bed landing near some mirrors in the room. He crawled beside the bed laying there quietly for a couple of seconds. Then he pushed his hand up under a blanket on Kirsten M’s bed. She pushed his hand away. (Count 3)

6. At this point Karina M entered the room. Alinta M woke up and said to the intruder “Get out!” or words to that effect. The accused remained on the floor as though pretending to be asleep. Karina M called on Kirsten M to get up. She did so. Both cousins walked to the kitchen. Alinta M joined them. They had a three-way discussion. In the course of the discussion the accused was seen standing in the hallway watching both complainants. He shortly thereafter walked from the premises.

7. At about 6:15am. the accused was in the premises 25 Toomelah. Lauralee M was sleeping in her bedroom. Her daughter was also sleeping in the same room. Lauralee M woke to being touched on her clothing covering her backside. She felt a hand between the buttock cheeks in the region of her anus. (Count 1) By the time she woke the offender was standing near the bedroom door. Contrary to her practice the TV and lights were off. She had left the lights and TV on when she fell asleep. She said “Who’s that?”. The intruder replied, “It’s me Anthony.” Anthony Hinch was then a resident at 25 Toomelah. Lauralee M said “What are you doing in my room.” The person replied: “I’m looking for Renella”. Renella is the younger sister of Lauralee. At the time of this conversation on the Crown case both Anthony Hinch and Renella were asleep together in another bedroom. Anthony was Renella’s then boyfriend.

8. Lauralee M left her bed walked to another bedroom at the other end of the house. As she went she was turning on lights. She turned on the light in this bedroom. The accused was laying on a single bed in the room. She woke her sister Renella in the adjacent room by knocking on the bedroom door. As she was doing so she was telling the accused to get up. He responded, “Where am I. I’m home ain’t I?” He wouldn’t go for a while. When the accused got up he was saying he didn’t know who Lauralee was. She told him she was ringing the police. He denied having done anything wrong.

The Defence issues

9. Initially Mr MacCallum, counsel for the accused sought to argue the charge alleging offending against Lauralee M could not properly be contained in an indictment containing charges relating to the other two complainants. The practice book used by most judges of this Court, Butterworth’s Criminal Practice and Procedure NSW, makes clear:

An indictment may contain more than one count, but each count must allege a separate and distinct offence and there must be a verdict on each:… Different offences may be contained in the one indictment if there is some connection between the crimes. This will be so if the evidence of one is admissible on the trial of the other. (authorities and some text omitted). (p.6323).

10. The impact of the last sentence of that citation needs to be explored more fully. In Kray [1970] 1 Q.B. 125 at 130-131; the principle was set out more fully in the English Court of Appeal, Criminal Division in a judgment of Widgery LJ:

“[O]ffences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that the evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such circumstances.

11. In De Jesus 22 A Crim R. 375 at 381 Mason and Deane JJ stated the principle emerging from the High Court case, Sutton v The Queen (1984) 152 C.L.R. 528, thus:

…[W]here an accused is charged with a number of sexual offences with different females on different occasions, the charges should not be tried together if the evidence on one count is not admissible on another count: Brennan J [in Sutton v The Queen ] expressed the point in this way

“Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not.”

Later his Honour said:

“Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials.

12. In the circumstances of this case there are circumstances linking the offences. These offences on the Crown case all occurred within an area of housing on the Toomelah Aboriginal mission. The accused is Aboriginal. My understanding is he lives on the mission. Each of the complainants is Aboriginal. These offences all occurred within a short distance of each other, two in one house, and the third in a nearby residence. These offences all occurred within a short span of time of each other, described as from “early in the morning” to 6-15am. All complainants identified the accused as being an uninvited person within the dwelling house where he was seen. His presence in each house (notwithstanding his alleged remarks to Lauralee M) remains otherwise unexplained – although one has to be careful not to reverse the onus of proof, this still seems a valid link among the offences.

13. This evidence becomes circumstantial evidence in all cases of the presence of the accused in the relevant area, at a time proximate to the alleged offending. It also provides evidence supportive of the complainants in respect of each’s claim to have seen the accused in an area and at a time relatively close to when other complainants saw him. Finally, it increases in a very substantial way the value to the Crown of the accused’s behaviour when confronted by the relevant complainants in each location.

14. On reflection it does not appear to me the circumstances referred to in paragraph 12 qualify as coincidence evidence because those items of evidence do not meet the test of “related events”. Nor do they prove the improbability of the criminal events occurring co-incidentally. By this I mean the circumstances referred to do not qualify as “similar fact” or “modus operandi” of the precise criminal acts of indecent assault or intent to commit indecent assault that the Crown must prove in respect of each complainant. The circumstances referred to in that paragraph do not, standing by themselves, amount to criminal conduct.

15. Even so, it appears to me the evidence from Lauralee M that she saw the accused at 25 Toomelah about 6-15am. after he had left 38 Toomelah (on the Crown case) is admissible as evidence of circumstances supporting Karina M and Kirsten M that the accused was at 38 Toomelah, and had left that address for some reason at some earlier point in time that morning. Even if those facts are not disputed, the Crown is entitled to call the evidence – because it is relevant and relates to a fact in issue. It also offers, limited as it may be, some independent supportive evidence to the two complainants. I note the supportive evidence does not go to the elements of the offence – but it does go to circumstances in which, on the Crown case those elements were committed by the accused.

16. I have referred to evidence of the behaviour of the accused when confronted by complainants in their respective houses. This behaviour by the accused on the Crown case presents as distinctive. The behaviour bears closer scrutiny.

17. Kirsten M says the accused having been kicked from her bed landed near the mirrors. He then crawled beside her bed, and then pretended to be asleep for a short moment. The account continues that he made an attempt to touch her, but using her hand she pushed him away. Then he pretended to be asleep even though Alinta M had told him to “get out”. Karina M came into the room. She told Kirsten M to leave the room. The accused remained behind pretending to be asleep. While Kirsten M, Karina M and Alinta M were talking in the kitchen the accused, no longer pretending to be asleep, stood watching them. Shortly after, he left the premises.

18. Lauralee M had been indecently assaulted. She verbally confronted a male in her room. The male identified himself as Anthony. On the Crown case it was not Anthony Hinch. She identified the voice as the voice of her cousin, the accused. Lauralee M walked to another room at the other end of the house where she saw the accused laying on a single bed. She knocked on the door and told him to “Get out”. He said, “Where am I? I’m home aren’t I?”

19. On the Crown case in both instances the accused had used a ruse of being asleep in an attempt to deflect any suspicion from himself. On the Crown case in a very short period of time, significantly after 3 sexually oriented offences have occurred in two nearby premises, in an area primarily peopled by a small Aboriginal community, this same ruse of being asleep is used. In such a situation the conduct constitutes an admission by conduct of the only person who was, or could have been, at both sites.

20. The conduct is sufficiently distinctive in the circumstances of this case (proximity of time, very restricted geographic location, small distinctive community, intrusion in the bedrooms where each complainant was sleeping, the assault of a sexual nature and the complainants’ responses, unexplained presence of accused and no other viable suspect present at the houses) as to constitute a signature of uniqueness referable only to the accused.

21. My initial impression was this behaviour constituted tendency evidence; that is, evidence of conduct of the accused to act in a particular way when confronted by a female who chastised him for unlawful sexually related conduct. Mr McCallum submitted it was better described as coincidence evidence. If I understand his argument he accepts the behaviour qualifies as: “two or more substantially and relevantly similar events occurring in circumstances that were substantially similar” (See Evidence Act 1995 s.98 (2)).

22. However it may be catalogued, the Crown is seeking to rely upon these responses as proving the same person was present in both dwelling houses, was being confronted by females wanting him to leave premises in circumstances where those females believed he had behaved inappropriately sexually toward them, and had made their position clear at the time he allegedly offended against each. The Crown seeks to rely upon the accused’s response of pretending to be asleep as an admission by conduct by him of being aware that he was being blamed for that offending conduct and seeking to avoid dealing with the complainants in those circumstances. While it cannot be put as high as the accused demonstrating a conscientiousness of guilt, on the Crown case it demonstrates a tendency to act in that distinctive way when so confronted. It also points to his responding in the way he did on each occasion as unlikely to be coincidental behaviour. The tendency to so act, and the unlikeliness of it being a coincidence are strong circumstances point towards guilt.

23. There is a difficulty many experience of distinguishing between tendency evidence and coincidence evidence. There are occasions when the same evidence may overlap as one or the other. However, it seems to me the safeguard provisions of s.97 (1)(b) and 98 (1)(b) and s.101 of the Evidence Act 1995 (the Act) apply whether this evidence qualifies as tendency or coincidence evidence.

24. Thus, on the material before me, subject to being satisfied in respect of the safeguard matters I have referred to, I am inclined to regard the Crown as entitled to join all three counts in the same indictment, and to allow the Crown to proceed on all three charges in the same indictment before the same jury.

25. The Crown has given a Tendency and Coincidence Evidence Notice sufficient to satisfy the defence that it was on notice the Crown would be seeking to rely upon the behaviour of the accused after the alleged offence upon Kirsten M and the behaviour of the accused after the alleged offence upon Lauralee M as coincidence or tendency evidence.

26. Mr McCallum sought to identify reasons why evidence of the accused’s behaviour post those two alleged offences would not qualify as either tendency or coincidence. He sought to argue there was a real possibility of concoction. His initial argument sought to raise the potential for concoction of evidence coming from Karina M and Kirsten M. Factors contributing to the presence of a real possibility of concoction include an awareness that Lauralee M had made a complaint to police; the three complainants were all related and closely associated in the Toomelah community; and Karina M and Kirsten M must have been aware the accused was arrested on the evening of 23 ^rd March 2007 in relation to the complaint made by Lauralee M. Karina M and Kirsten M first reported their complaints to police on 30 ^th March 2007; that is seven days after Lauralee’s initial complaint.

27. On 30^th March 2007 police had come to Toomelah, it would seem, to take statements from witnesses who could corroborate Lauralee M’s account against the accused. Among statements taken was a statement from Kirsten M, aged 16 years. Seven days earlier at the time of his arrest on the 23 ^rd March 2007 the accused complained to police that persons in the community were openly talking about his committing inappropriate sexual acts against a young person. However, the inappropriate sexual act nominated by the accused (“raped a little girl”) to police bears little comparison to the allegation Kirsten M is making against him.

28. A second voir dire hearing was held to take evidence on the issue of concoction. From the evidence on the voir dire I would be satisfied Lauralee M called police shortly after 6-15am. on 23 ^rd March 2007. She complained to them in terms contained in V.D. Exhibit 1. Her complaint was taken down in one Sgt Fraser’s notebook. While police were speaking to her, or at very least around that time, Anthony Hinch left 25 Toomelah to attend house 38 Toomelah. Anthony Hinch certainly knew the accused had been at 25 Toomelah at 6:15am. Hinch certainly knew he had been told to leave those premises. It is likely he knew Lauralee was upset at the accused. What is less clear is what, if anything he knew about general or specific allegations Larualee was about to make to the police when they arrived.

29. Within an hour or so of police leaving, Lauralee M had been told the accused had even earlier that morning been at the home of Ricky Paul Duncan (38 Toomelah). She had also been told that he was said to have done “the same thing” to other females at that house. It is likely she knew the identity of the females allegedly so assaulted. (I note if that is what Lauralee M heard, it is not precisely reflected in the charges before the Court). What flows from Lauralee hearing of the allegations coming from 38 Toomelah is that Karina M and Kirsten M were already making allegations against the accused within two hours of Lauralee M ringing police. The precise nature of what was told to Anthony Hinch – the likely source of the information from 38 Toomelah – and from whom he received such information is still unclear on the evidence. Nor is it clear what, if anything, Anthony Hinch told the residents at Rick Paul Duncan’s home in respect of what had happened in Lauralee’s bedroom at 6-15am.

30. It is fair to say that in the circumstances in which the account came from 38 Toomelah within such a short time of Lauralee complaining to Sgt Fraser, there is nothing suggesting concoction by either Karina M or Kirsten M. The terms of the Crown case are such that I would expect independent supporting evidence of he presence of the accused at both residences on the morning of 23 ^rd March 2007. Further, although given opportunity to cross-examine each complainant on the voir dire – only in the case of one, was the issue directly raised. On that occasion the proposition put by the defence was denied. No motive to concoct was advanced by either side. Nor was any clear instance or circumstance amounting to a real possibility of concoction discovered in the voir dire evidence.

31. The best that can be said of the evidence so far as the defence claim of concoction is concerned is that there were seven days between Lauralee M’s first statement to police and the statements made by other complainants that would have left open seven days to concoct evidence. Put another way there was enough time to concoct an account. But the weight to be given to the opportunity of concoction is diminished by allegations being made of sexually inappropriate behaviour within a couple of hours of Lauralee contacting police, and the independent evidence supporting the presence of the accused in each residence.

32. The speed with which news of the alleged offending conduct at 38 Toomelah first reached Lauralee M strongly points to spontaneity of reporting, rather than concocting. Nor is any motive suggested for concoction. While the defence case may challenge all evidence from Karina M and Kirsten M as concocted, of particular interest here is whether the accused’s alleged resort to the sleeping ruse when confronted by the complainants was concocted by Karina M and Kirsten M. There is no similarity of fact in respect of the alleged assaults or acts of indecency constituting the indecent assaults claimed by Karina M and Kirsten M. Nor, save for the sleeping ruse, does either of the encounters with the accused they allege present as hauntingly similar to the allegations made by Lauralee. Moreover, neither Karina M nor Kirsten M anticipated the police would be talking to her. Neither sought out the police. It would seem other members of the community, having heard of their complainants, pointed police in their direction.

33. In the absence of any apparent desire to contact police, what other motive could have inspired a concoction. It seems to me the defence is left in this position. Any concoction by them would have been based on some conspiracy to seek notoriety by both claiming falsely to have been sexually assaulted by the accused, or because of some general malice held towards the accused. Frankly, the first seems unreasonably offensive to them, and the second has not even been alleged in the cross-examination. There is no basis for finding any such malice. As is so frequently the experience of this Court, the likely explanation for their not seeking out the police is they were not intending to seek resolution of their situation in the courtroom.

34. I am satisfied during the seven-day period between 23^rd March and 30^th March 2007 there was discussion among members of the community in Toomelah in respect of the fact that allegations were being made about the accused by all complainants. The complainants’ positions seems to be they were not involved in general discussion. But at least two of the complainant’s gave an account to their respective mothers. At least one of the complainant’s gave an account to her cousin, another complainant. I cannot rule out persons who received complaints may well have been responsible for, or fuelled community discussion. How well informed the community discussion was is not of relevance. I have assumed that the accused’s remark to Sgt Fraser when arrested, assuming it accurately reflected what the accused had heard, arose from community discussion, and not from any recounting by the complainants of their allegations to the general community.

35. Even if I accept there was some level of community based discussion, that is not sufficient to establish a reasonably possibility of concoction by Kirsten M and Karina M of what they say occurred at 38 Toomelah. The scope of the enquiry to be undertaken by the judge, and the circumstances in which evidence of similarity of accounts is to be excluded are conveniently set out in the judgment of Mason CJ, Wilson and Gaudron JJ in Hock’s case.

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the dispositions of witnesses in committal proceedings or statements of witness indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purposes of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction. (Underlining not in original text). Hock v The Queen (1988) 165 CLR 292 at 297.

36. On their rationale (it is to be remembered Mason CJ, Wilson, Gaudron JJ constituted a majority) circumstantial evidence of similar facts has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence reasonably open. In such a case the alternate rational view, being reasonable open, is inconsistent with both the guilt of the accused and the improbability of the complainants concocting similar lies. Their Honours held that “It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.” ( Hock (ante) at p. 296).

37. On the evidence before me, deliberate concoction by Karina M and Kirsten M in respect of each’s assertion the accused’s engaged in a ruse by pretending to be asleep is not reasonably open. In those circumstances I regard the joinder of all three complainants in the same indictment as being open to the Crown; I decline the application to severe the charges. Further, I permit the Crown to lead as tendency or coincidence evidence the circumstances of the accused pretending to be asleep.