R. v. I

[1993] QCA 341

IN THE COURT OF APPEAL  [1993] QCA 341

SUPREME COURT OF QUEENSLAND

No. 177 of 1993

Brisbane

[R. v. I]

THE QUEEN

v.

I

(Appellant)

_______________________________________________________________

THE PRESIDENT

DAVIES J.A.
MOYNIHAN S.J.A.

_______________________________________________________________

Judgment delivered 14/09/1993

SEPARATE REASONS FOR JUDGMENT OF THE PRESIDENT, DAVIES J.A. AND MOYNIHAN S.J.A.  THE PRESIDENT DISSENTING.

_______________________________________________________________

APPEAL AGAINST CONVICTION DISMISSED.
_______________________________________________________________

CATCHWORDS:                CRIMINAL LAW - JOINDER OF COUNTS - charges of rape and indecent assault occurring twelve years apart joined in single indictment - complainant alleged continuing course of conduct between two incidents - whether impermissibly joined - whether series or part of series of offences of same or similar character - whether evidence equally admissible on each count - whether prejudice or embarrassment otherwise warranted separate trials

De Jesus v. The Queen (1986) 61 A.L.J.R. 1

Ludlow v. Metropolitan Police Commissioner [1971] A.C. 29
R v. Andrews [1987] 1 Qd.R. 21
R v. Cranston [1977] 1 Qd.R. 159
R v. Kray [1970] 1 Q.B. 125
R v. Sakail [1993] 1 Qd.R. 312
Criminal Code, ss. 567(2), 597A(1)

Indictments Act 1915 (U.K.), Sch.1 r.3

Indictments Rules 1971 (U.K.), r.9

CRIMINAL LAW - EVIDENCE - whether trial judge erred in refusing leave to adduce evidence of rape complainant's sexual history - whether virginity put in issue by evidence of blood on underwear

Criminal Law (Sexual Offenders) Act 1978, s.4

Counsel:P. Callaghan for the Respondent

T. Rafter for the Appellant

Solicitors:Director of Prosecutions for the Respondent

Legal Aid Office for the Appellant

Hearing Date(s):  12 August 1993

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 14/09/93

The circumstances giving rise to this appeal are set out in the reasons for judgment of the other members of the Court and I need not repeat them.

Although not the test expressed in section 567 of the Code, it has been accepted that joinder of two or more charges in an indictment is permissible if all of the evidence in relation to each offence is also admissible in relation to the other charge or charges. A number of the authorities are referred to by Davies JA. in his judgment. The basis upon which joinder is permitted is that the admissibility of all evidence in respect of all offences charged provides a sufficient nexus between the offences charged. As Dawson J. said in de Jesus v. R. (1986) 61 ALJR 1 at p.10, nothing would be gained by separate trials because the same evidence would be admissible in each.

While joinder of two or more charges in an indictment is permissible if all of the evidence in relation to each offence is also admissible in relation to the other or others, the converse is not necessarily true. If the test prescribed by section 567 of the Code can otherwise be met, separate trials are not mandatory merely because some evidence in relation to one count is not admissible in relation to another. However, special features associated with sexual offences make it appropriate for separate trials to be ordered where evidence in relation to one such count is not admissible in relation to another or others: de Jesus; Hoch v. R. (1988) 165 CLR 292; R. v. Harriman (1989) 167 CLR 590.

The resolution of this appeal is somewhat complicated by the course adopted by the appellant.  Here and below, it was accepted that evidence of the entire sexual relationship between the complainant and the appellant was admissible in relation to each of the two charges.  This approach went a considerable way, although not the full distance, towards acknowledging that joinder of the charges was permissible.  Having regard to the period which elapsed between the appellant's earlier conduct and the alleged incident at Carina Heights in 1992 which was the subject of the second count, it is by no means clear to me that evidence of the earlier conduct was admissible in respect of the second charge.  Nor is it obvious that all the evidence of subsequent offences, including the last, was admissible in respect of the first charge despite the period which had elapsed.  The basis for admissibility where it exists is that evidence of other offences is relevantly probative of the offence charged and it is arguable that the latter offences, or at least the final offence, do not satisfy this test in relation to the initial offence: see Forbes "Similar Facts" (1987) para. 10-19.

However, it is unnecessary to pursue this.  There was evidence of fresh complaint which was admissible in respect of one, but not the other, of the counts.  In these circumstances, joinder was contrary to what was laid down in de Jesus.  I do not think that the evidence in question was minor or that the consequence that there was a misjoinder can be avoided by the trial judge omitting reference to the evidence from his summing-up.  On the contrary, it seems to me that the evidence was led by the prosecution as an integral part of its case and that it was intended to, and probably did, weigh with the jury.  Indeed, it might reasonably be inferred that the only two offences charged, one at the very beginning and one at the very end of the relevant period, were selected because such a course maximised the range of evidence available to the jury, including the evidence of fresh complaint which was not admissible on both charges.  The potential impact of the evidence in respect of the count on which it was inadmissible may well have been significant, especially in the absence of any direction by the trial judge which attempted to limit its effect.  The purpose of the evidence was to support the credibility of the complainant, who was the principal witness against the appellant.  In my opinion, it is too much to expect that the jury, without any direction, understood that the evidence bolstered only part of the complainant's account of what, accordingly to the prosecution case, was a single, continuing, violent and unlawful sexual relationship.

Accordingly, the appeal should be allowed and new trials ordered.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  C.A. No. 177 of 1993

Brisbane

BeforeThe President

Mr Justice Davies
Mr Justice Moynihan

[R. v. I]

THE QUEEN

v.

I

(Appellant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 14/09/1993

The appellant was convicted in the District Court at Brisbane on 13 May 1993 on two counts: one of rape on a date unknown between 13 June 1980 and 1 November 1980, and one of indecent assault on 17 February 1992.  Both were charged on the one indictment and were tried together, notwithstanding an application made at the commencement of the trial that the counts should be tried separately.  The learned trial judge's refusal to order separate trials on the two counts forms the first and main ground of appeal.

The application for separate trials and the argument on this ground involves the construction of ss. 567 and 597A of the Criminal Code.  Those sections relevantly provide:

"567(1)Except as otherwise expressly provided, an indictment must charge one offence only and not two or more offences.

(2)Charges for more than one indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

..."

"597A.(1)Where before a trial or at any time during a trial the Court is of opinion that the accused person may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more than one offence charged in an indictment the Court may order a separate trial of any count or counts in the indictment.

..."

The questions to which the application of those sections to the facts of this case give rise are whether the offences charged in the two counts are or form part of a series of offences of similar character; and, if so, whether the learned trial judge was wrong in his opinion that the appellant would not be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment and wrongly concluded that there was no other reason why it was desirable to direct separate trials.

Although only two offences were charged, the facts deposed to by the complainant revealed a number of offences committed by the appellant on the complainant over a period of many years.  The story commences in 1980 when the complainant, then aged 15, came from New Zealand to Australia with her mother and sister.  After a short time they commenced residing with the appellant and his family.  The appellant was a cousin of the complainant's mother.

The complainant, her mother and sister resided with the appellant and his family for about two months.  During that period the appellant interfered with the complainant several times a week.  He used to come into her bedroom, touch her breasts and put his hands on her underpants.

At the end of that period the complainant's father and brothers arrived in Australia and the family moved into a home in another suburb.  On the day of the move the complainant was asked by her parents to assist the appellant by going with him in his car to their new house and to help him unload some of their belongings there.  It was there that the offence, the subject of the first count, occurred.  The appellant asked the complainant to show him her bedroom, which she did.  He there overpowered her and raped her.  He then ordered her into his car and they returned to his home.  She immediately complained to her sister, B, and showed her blood on her underpants.

The appellant's assaults on the complainant continued after she and her family had moved into their new home.  Both her mother and father worked and the appellant arrived frequently when they were at work.  Although she had brothers at home, he would sometimes give them money to keep away whilst he pursued his purpose which was plainly to sexually assault and sometimes have intercourse with the complainant.  He raped her on three occasions whilst she was living with her parents.

The complainant married, apparently in 1982, and she and her husband went to live at Coorparoo.  Although she did not tell the appellant where she was living, he came around on several occasions when her husband was absent.  If she saw him arriving she would lock the door of the unit in which she was living and hide.  However, he entered the unit or two or three occasions and on each of them pushed her against a wall and touched her breasts.

After a year at Coorparoo the complainant and her husband moved to another suburb where they resided for about a year, again in a unit.  During that time the appellant called half a dozen times or more, again when her husband was absent, but on each of them the complainant, seeing his car arrive, locked him out.  On one occasion, however, he attempted to climb in through a window and the complainant repulsed him only by means of a hammer.

The complainant and her husband then moved again to a house where they lived for about seven years.  During that time the appellant visited her about five times, always whilst she was alone or with her children.  On each occasion he would push her against a bench, grab her breasts and try to put his hands inside her underpants.  She would call her children and when they arrived he would desist.

In March 1990 the complainant and her husband moved to a new house in another suburb.  She did not see the appellant from then until about 15 February 1992 when she saw him at the Uniting Church, West End.  She did not speak to him.  Nevertheless a few days later he arrived at her home unannounced, told her his wife had passed away and asked her if she would have sex with him.  She refused and tried to leave, whereupon he grabbed her, pushed her backwards onto a couch, squeezed her breasts and tried to take her top off.  He kept on saying: "Give me one; come on give it to me."  Eventually she managed to free herself and run out to her car.  This incident was the subject of the second count.

It was submitted below unsuccessfully and to this Court that the offences the subject of the two counts were not and did not form part of a series of offences of similar character.

The present form of s. 567 and s. 597A were introduced into the Criminal Code in 1976.  Those new provisions and their analogues elsewhere in Australia have as their common origin the Indictments Act 1915 (U.K.).  Rule 3 of Schedule 1 to that Act provided:

"Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character."

Rule 9 of the Indictment Rules 1971 is in similar terms.

It is well established under that and analogous provisions, including s. 567, that a series in this context can consist of only two offences: R. v. Kray [1970] 1 Q.B. 125; Ludlow v. Metropolitan Police Commissioner [1971] A.C. 29 at 38; De Jesus v. The Queen (1986) 61 A.L.J.R. 1 at 9; R. v. Andrews [1987] 1 Qd.R. 21 at 26; R. v. M.K. Brown [1991] 1 Qd.R. 221; R. v. Anderson (1973) 5 S.A.S.R. 256. The two offences charged were therefore a series if there was a sufficient nexus between them.

Before the enactment of s. 567 in its present form, it had been established under r. 3 that there was a sufficient nexus between two offences to constitute them a series if they were so connected that evidence of one would be admissible on the trial of the other: Kray at 130-1; Ludlow at 39.  See also Beck v. R. [1984] W.A.R. 127 at 133; R. v. Garrett (1988) 50 S.A.S.R. 392 at 401; R. v. Luczkowski (1988) 54 S.A.S.R. 169 at 172-4; R. v. Lancaster [1989] W.A.R. 83 at 87, 92-3. Here, almost the whole of the evidence on each count was admissible on the other: R. v. Sakail [1993] 1 Qd.R. 312 at 316 and the authorities there referred to. So much was conceded by counsel for the appellant. Indeed, the only evidence admitted at the trial which, it was submitted before us, was not admissible on both counts, was evidence of fresh complaint in respect of count two given by the complainant's brother, C. The evidence admissible on both counts showed the appellant's continued guilty passion for the complainant and frequent repetition of sexual assaults upon her over a period of nearly ten years. In my view they constituted a series of offences.

I also think that the offences the subject of the two counts formed part of a series of offences which included offences committed before the first of these offences and offences committed between them notwithstanding that the offences of these last two categories do not appear to have been the subject of any indictment. Plainly the term "offences" in s. 567(2) includes offences other than those joined in the indictment; otherwise the phrase "or form part of" would have no meaning. I think that the term includes any offences of a similar character, evidence of which is admissible in the proceeding on the indictment, even though they are not the subject of some other indictment or conviction. The section should not be given an unduly restricted meaning since any risk of injustice can be avoided by the exercise of the judge's discretion to order separate trials under s. 597A: Ludlow at 40.

In this proceeding there was admissible evidence of sexual assaults in 1980 before the rape the subject of the first count, sexual assaults and rapes between 1980 and 1982, sexual assaults on two or three occasions in 1982, and sexual assaults on about five occasions over the seven years from 1983 until March 1990.

In my view, all of these offences and those the subject of the two counts were of a similar character.  They all involved sexual assaults by the appellant on the complainant with similar factual characteristics.  Many of them were of the same legal character, namely indecent assaults, and four others were of the same legal character, namely rapes.

In my view therefore the learned trial judge was correct in concluding that the offences the subject of the two counts were or formed part of a series of offences of similar character.

Although in the written outline an argument was advanced with respect to s. 597A, Mr Rafter, who argued the case for the appellant, concentrated his argument on s. 567. This was no doubt because, as he conceded, the only evidence admitted at the trial which arguably was not admissible on both counts was the evidence of fresh complaint in respect of count two. It was submitted that such evidence was not admissible on count one and may have had the effect of bolstering the complainant's credit generally. However, the learned trial judge was never asked, in directing the jury, to differentiate between evidence admissible on one charge and not on the other and did not do so. One obvious explanation for the failure to ask him to do so was that it was perceived, rightly it seems to me, that to have asked the trial judge to isolate this minor piece of evidence as admissible only in respect of one count might well have disadvantaged the accused. In any event, I do not think that the failure to do so could have resulted in any miscarriage and, to be fair to Mr Rafter, he did not submit that it did.

Having decided, rightly in my view, that the charges were or formed part of a series of offences of similar character, the learned trial judge was also correct in refusing to order separate trials because of any prejudice or embarrassment or any other reason under s. 597A. And even if he was not, his refusal did not result in any miscarriage of justice.

The other ground of appeal relates to evidence of the complainant's sister, B, of fresh complaint in respect of count one.  In the committal proceeding, she had apparently said that she had observed blood on the complainant's underwear.  She denied this at the trial and the Crown Prosecutor was given leave to cross-examine her on her earlier statement.  Counsel for the appellant then sought leave, pursuant to s. 4 of the Criminal Law (Sexual Offenders) Act 1978, to adduce evidence of the complainant's sexual activities with persons other than the defendant because, he said, the evidence of blood on the underwear was "highly suggestive of the girl being virginal at the time of the alleged rape".  The refusal of the learned trial judge to grant this application forms the basis of this ground.

It was not part of the Crown case that the complainant was a virgin.  The evidence of blood on the complainant's underpants was put to the jury by the Crown on the basis that it "might tend to confirm that there was, in fact, some trauma, recent trauma, to that area of her body".  Whether or not she was a virgin was irrelevant to that issue.  In my view the virginity of the complainant was never put in issue and the learned trial judge was therefore correct in refusing leave to cross-examine the complainant as to her sexual activities with persons other than the appellant.

The appeal should therefore be dismissed.

JUDGMENT - MOYNIHAN J

Delivered the 14th day of September, 1992

The appellant was convicted on each of two counts on an indictment presented against him.  The first count was that he had raped V at Brisbane on a date unknown between 13 June, 1980 and 1 August, 1980.  The second was that he had indecently assaulted the same woman at Brisbane on 17 February, 1992.

The outcome of the appeal largely turns on whether the two offences charged on the indictment satisfied the requirements of S.567(2) of the Code in that they formed part of a series of offences of the same or similar character. The offence of rape was allegedly committed at a time when the complainant was about 15 years of age. There were allegations by the complainant of subsequent offences by the appellant against the complainant including other offences of rape and instances of indecent assault, and acts which might have constituted indecent dealing. There was also evidence, in the context of the chain of events just referred to, of the appellant endeavouring to gain entry to premises occupied by the complainant or, having gained entry and commencing to interfere with the complainant, leaving when she called for assistance.

During the period covered by the counts on the indictment the complainant lived at a number of addresses to which the appellant came on various occasions.  It was on such occasions that the complainant said the incidents referred to above occurred.  Early in 1990 the appellant apparently lost contact with the complainant who by this time had married and had children.  He apparently located her again after he saw her at the Uniting Church at West End shortly before 17 February, 1992.  On that day he arrived at her then residence and committed the second of the two offences charged on the indictment.

It was not in issue on the appeal that the history of the relationship was other than admissible in respect of both counts.  Evidence of recent complaint admissible on the first count was probably not admissible on the second but otherwise it was not argued that the joinder led to prejudice on account of the evidence thus received.  There was no complaint about the way in which the summing up dealt with the evidence, including the recent complaint evidence referred to.

The effect to be given to the phrase "a series of offences.... of similar character" has "presented difficulty in the formulation of a definitive objective test", (Cranston [1977] 1 Qd.R. 159 at 164). It is, however, well settled that two offences may constitute a series of offences; Kray [1970] 1 Q.B. 125.

In de Jesus (1986) 61 A.L.J.R. 1 the High Court was concerned with an application for special leave to appeal where the issue was the refusal of a separate trial rather than principally a complaint about joinder. In that case an indictment charged two counts of rape and other counts of offences, including deprivation of liberty and indecent assault. An application for an order that the two counts of rape be tried separately was refused. Dawson J (at p. 9) thought that the offences of rape and the other offences of a sexual character such as indecent assault provided a sufficient similarity in the legal character or components of the offences to satisfy that aspect of the equivalent of S. 567. It was not strongly argued in the present case that the particular requirement was not satisfied and it seems to have been.

The notion of a "series of offences" calls for:-

"the administration of a test in which time, place and other circumstances as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present"...."Quite an exercise of some judgment will be called for in each case", per Macrossan J (as he then was) [(with whom McPherson J (as he then was) and de Jersey J agreed] in Cranston ante at 164, 162."

The question is therefore a mixed one of fact and law.

It is true that the offences charged were separated by a long gap.  They took place, however, in the context of the history outlined.  It will be appreciated that the course of events seems to show that in the latter offence the appellant reverted to his previous behaviour once he had again located the complainant.  The two offences charged were thus capable of being regarded as taking their place in a larger pattern of events involving the sexual abuse of an unwilling complainant.  Given the quite limited effect on admissability of a separate trial which was argued, it does not appear that the accused was prejudiced to an extent rendering the trial judge in error for refusing separate trials.

The considerations being those outlined, it has not been demonstrated the trial judge erred in declining to hold the offences were improperly joined or refusing a separate trial.

There was a second basis to the appeal.  This was that the trial Judge had wrongly refused to permit the appellant's counsel to cross-examine the complainant as to her previous sexual experience.  The issue arose in this way: There was evidence of recent complaint in respect of the rape the subject of the first count.  Associated with this there was evidence of blood on the complainant's vagina and underwear.  This evidence was put to the jury on the basis that it might tend to confirm that there was in fact some recent trauma to that area of her body.  It had been submitted on the appellant's behalf that the evidence of the blood was highly suggestive of the girl being virginal at the time of the rape so as to entitle the appellant's counsel at the trial to cross-examine her to in effect rebut that.  It was no part of the Crown case that the complainant was a virgin.

The trial Judge did not err in refusing leave to cross-examine.  At most the evidence was consistent with the loss of virginity and of recent trauma.  Cross-examination as to previous sexual history had no bearing on the latter issue which was the issue on which the evidence went to the jury.

The considerations being those dealt with, the appeal should be dismissed.