R v HAMRA
[2016] SADC 4
•21 January 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAMRA
Criminal Trial by Judge Alone
[2016] SADC 4
Reasons for Ruling of His Honour Judge Tilmouth
21 January 2016
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
Application for severance of counts granted on the basis that there is an insufficient degree of detail or similarity in the evidence on each count to justify 'cross-admissibility'.
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 278(1), s 278(2a)(b); Evidence Act 1929 (SA) s 34P(2)(a), s 34P(2)(b), s 34P(3); De Jesus v The Queen (1986) 61 ALJR 1; PNJ v Director of Public Prosecutions (2010) 27 VR 146; R v MAP [2006] QCA 220; R v N, SH [2010] SASCFC 74; R v Rapson [2014] VSCA 216; R v RR [2011] VSCA 442; Harris v The Queen [2015] VSCA 112; R v Velkoski [2014] VSCA 216; R v AE [2008] NSWCCA 52; R v March [2014] SASCFC 54, referred to.
R v C, CA [2013] SASCFC 137; CGL v Director of Public Prosecutions (2010) 24 VR 486; Phillips v The Queen (2006) 225 CLR 303, applied.
Page v Director of Public Prosecutions [2014] VSCA 357, considered.
R v HAMRA
[2016] SADC 4An application for severance
The accused is before the court charged with two counts of sexual exploitation of a child pertaining to two brothers. The offences allegedly occurred between 1977 and 1982 with respect to count 1, and between late October 1979 and early October 1987 with respect to count 2. There is an application by the defence for severance of the counts, on the basis that the evidence on each is not cross-admissible on the other.
On 15 January I made an order for severance. What follows are the reasons for reaching that conclusion.
The prosecution position
The prosecution argues that joinder is appropriate, in the first place because the underlying nature of each charge which ‘form, or are a part of, a series of offences of the same or a similar character’, as provided for in s 278(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It may be accepted that they are offences of a similar character, inasmuch as they charge exactly the same offence of persistent sexual exploitation of a child pursuant to s 50(1) of the CLCA: De Jesus v The Queen.[1]
[1] (1986) 61 ALJR 1.
The respective particulars of each count entail sustained sexual misconduct over a partially coincidental period of time, of two brothers living together under the same roof, comprised of touching their respective genitals, the accused placing his penis between the bottom and the legs of the complainants respectively, by causing each to touch his penis and performing fellatio upon the complainant in count 1, and having the complainant perform fellatio upon him in count 2.
The evidence pertinent to one count can only be properly introduced as evidence in respect of another count for a ‘permissible use’, and even then only if ‘the probative value of the evidence … substantially outweighs any prejudicial effect it may have on the defendant’: s 34P(2)(a) of the Evidence Act 1929 (SA).
The prosecution here asserts there is such a ‘similarity of account by each complainant, to the point that it is improbable both independently concocted the allegations of sexual misconduct against the accused in similar terms’: R v C, CA.[2]The test of admissibility pursuant to s34P(2)(a) lies in demonstrating ‘the improbability that the conduct of which [the complainants] complained was concocted or imagined by each of them independently of the other’, and when those stories contain ‘a high degree of similarity of detail’: R v C, CA.[3] Expressed in a slightly different way is, ‘it is most unlikely … [they] … would independently have told the same lies’, or ‘is it improbable that the respective accounts given … would describe the same feature, or features, if the accounts were not truthful’: Page v Director of Public Prosecutions.[4]
[2] [2013] SASCFC 137, [57].
[3] Above, [57].
[4] [2015] VSCA 357, [54] and [56].
The prosecution points to a number of common attributes in the allegations made by the respective complainants, which it contends satisfies these requirements and underpins a proper basis for cross-admission. These include common allegations that abuse occurred generally at night when others were about the home asleep; that they occurred in the bedroom(s) of the two boys; the style and manner in which the abuse occurred including a progression from mere touching of the genitalia outside the clothing and then under the clothing, through to acts of fellatio; that ejaculation and mutual ejaculation occurred and the coincidence in age between the two boys. It is not necessary to make a detailed analysis of the finer points in relation to this evidence.
The defence position
The written outline submitted on behalf of the accused, and the supplementary schedules ‘chart of dissimilarities’ and ‘non-similarities’, unquestionably demonstrate a considerable array of significant differences between the two accounts. As remarked in CGL v Director of Public Prosecutions:[5]
[40] As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has “significant” probative value and - even more so - to demonstrate that its probative value “substantially outweighs” the very real prejudicial effect of evidence of this kind.
[5] (2010) 24 VR 486, [40].
It can be accepted that in the generalities, there is a broad co-incidence of complaint in the areas identified by the prosecution. Of course, it is not a question of ‘the abstract … counting and comparing points of similarity and dissimilarity’, but rather ‘whether as a matter of human experience the levels of similarity between the complaints … peculiar to them’, were ‘independently concocted or imagined…’: R v C, CA.[6] Equally, the task is not to be approached from the perspective that evidence of dissimilarity necessarily defeats the substantial probative value of evidence otherwise having the requisite degree of similarity, for the reasons explained in Page v Director of Public Prosecutions:[7]
[59] Logically, however, once the identified similarities can be said to raise the improbability of coincidence — and hence give the evidence its probative value — the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position: See El-Haddad v R [2015] NSWCCA 10 [76].
[6] Above, [65].
[7] Above.
Nevertheless there is logically a significant antithetical corollary to this proposition, as explained in R v Rapson,[8] ‘the more marked the dissimilarity in the sexual misconduct the greater the requirement for there to be a pattern of commonality or underlying unity elsewhere in the evidence’ or that ‘marked dissimilarities necessarily diminish the strength of the proposition that it is improbable….that the events occurred as a matter of coincidence’: R v Harris (a Pseudonym).[9]
[8] [2014] VSCA 216, [17].
[9] [2015] VSCA 112, [25].
Ms Luu for the prosecution rightly emphasised that in so far as some of the matters pointed to by the defence have their source in proofing notes taken by police officers during the complainants’ attendance at the offices of the DPP, they should be considered in context and that they should also be weighed on the basis that they are not so far adopted by the complainants, for example by the execution of a further declaration. Nevertheless, the weight to be given in making an evaluative judgment of similarities must be considered in the context of the prosecution case. As the High Court points out in Phillips v The Queen:[10]
... 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.
The fact remains that defence counsel are entitled to cross-examine the complainants on the proofing notes, and when not distinctly admitted, to prove the statements by calling others who were present.
[10] (2006) 225 CLR 303, [63] (footnotes omitted).
Analysis of competing contentions
The fact of the matter is that the generalised allegations present here collectively amount to little more than what the High Court of Australia described in Phillips v The Queen,[11] as ‘entirely unremarkable’ and what was considered in PNJ v Director of Public Prosecutions,[12] to be ‘sadly unremarkable’. As the majority pointed out in Phillips, ‘… a fundamental aspect of the requirements for admissibility … requires a strong degree of probative force’ as well as ‘some specific connection with or in relation to the issues for decision …’, here in respect of the particular charges of persistent sexual exploitation of a child.[13]
[11] (2006) 225 CLR 303, [56].
[12] (2010) 27 VR 146, [22].
[13] At [54] and [55].
An examination of the case law demonstrates that attributes of the kind pointed to here by the prosecution, have commonly failed to satisfy the threshold requirement for admission, as essentially lacking in distinctive, peculiar or unusual features, or a combination of factors giving the proposed evidence sufficient probative value or cogency having regard to the issues in the trial, for example R v MAP,[14] R v N, SH,[15] R v Rapson,[16] DPP v PNJ,[17] CGL v DPP,[18] R v RR,[19] and Harris v The Queen.[20] Committing sexual offences with others nearby is a very common feature of such offences: Phillips v The Queen,[21] and R v Mapp,[22] as is commonality of relationship of the alleged offender with complainant(s): R v RR,[23] R v Velkoski,[24] R v Rapson.[25]
[14] [2006] QCA 220, [44]-[45].
[15] [2010] SASCFC 74, [47] and [54].
[16] [2014] VSCA 216, [21-22].
[17] Above, [18].
[18] (2010) 24 VR 486, [22-23].
[19] [2011] VSCA 442, [43].
[20] [2015] VSCA 112, [15], [22-23], [25].
[21] Above [56].
[22] Above [44].
[23] Above [33].
[24] [2014] VSCA 121, [171].
[25] [2014] VSCA 216, [165].
Conclusion and orders
It must follow from the above analysis that the degrees of correspondence in the evidence in relation to each count, rises no higher than more or less conventional or characteristic similarities, or generalised generic attributes, only too typical of this kind of offending. As expressed in CGL v Director of Public Prosecutions,[26] and in R v AE,[27] the attributes of each charged offence are ‘in reality unremarkable circumstances that are common to sexual offences against children’.
[26] Above [31].
[27] [2008] NSWCCA 52, [42].
The evidence of each is not sufficiently probative so as to substantially outweigh any prejudicial effect cross-admission might produce: s 34P(2)(a) Evidence Act, even though it would otherwise be possible to keep the permissible and impermissible uses ‘sufficiently separate’, so as to remove any risk of impermissible use: s 34P(3) Evidence Act.
Accordingly, as the prosecution do not press for joinder if the evidence is ruled inadmissible as between counts, and as it makes no claim to alternative admission on a tendency basis pursuant to s 34P(2)(b) Evidence Act: compare Page v Director of Public Prosecutions,[28] and R v March,[29] there will be an order pursuant to s 278(2a)(b) of the CLCA for the separate trial of both counts.
[28] Above [67].
[29] [2014] SASCFC 54.
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