R v Ingram

[1996] QCA 294

IN THE COURT OF APPEAL	[1996] QCA 294
SUPREME COURT OF QUEENSLAND

C.A. No. 151 of 1996

Brisbane

BeforeMacrossan CJ
Pincus JA

Mackenzie J

[R v. Ingram]

THE QUEEN

v.

GRAHAM JOHN INGRAM

Appellant

Macrossan CJ
Pincus JA

Mackenzie J

Judgment delivered 27/08/1996.

Joint reasons for judgment of Macrossan CJ and Mackenzie J, separate concurring reasons of
Pincus JA.

Appeal allowed, guilty verdicts in each case set aside and order for retrial of the appellant on those charges.

CATCHWORDS:	CRIMINAL LAW - sexual offences - charges in relation to two complainants - whether trial judge erred in failing to direct the jury as to what use they might make of one complainant's evidence when considering the other's case - Hoch v. R (1988) 165 C.L.R. 292, R v. Pfennig (1995) 182 C.L.R. 461 discussed.
Counsel:	Mr A. Rafter for the appellant. Mr P. Ridgway for the respondent.
Solicitors:	Gilshenan and Luton for the appellant. Director of Public Prosecutions for the respondent.

Hearing Date: 9 August 1996

JOINT REASONS FOR JUDGMENT

MACROSSAN CJ AND MACKENZIE J

Judgment delivered 27/08/1996.

The appellant was found guilty after trial on three counts of indecent dealing and not guilty on one further count of the same kind. Two different complainants were involved, one, a boy named M who was eleven years old at the date of one of the offences, and a boy, H, who was twelve at the time of the two offences involving him. All of the offences occurred in the course of a visit by the two boys to the appellant's shop, a newsagency, on 21 May 1995. The appeal is concerned with all three convictions.

The complainant boys were good friends and had known one another for some three or four years. M knew the appellant well and had been accustomed to visit his shop frequently after school. H had not met the appellant prior to the visit there on the day of the offence. H had stayed over at the house of his friend, M, on the previous night, a Saturday.

The offences took place on Sunday at a time when the shop was not open for trading. However, when the two boys called, they were admitted by the appellant. When the offences occurred the boys were not present together but were in different sections of the shop. There is no need to provide a detailed description of the acts constituting the offences. It is sufficient to say that both boys were involved in activity that was, in a general way, similar. The appellant gave evidence at his trial denying the offences but obviously the jury did not accept his denials.

A number of grounds were taken in the notice of appeal. Some amounted to particulars of a general ground that the verdicts were unsafe and unsatisfactory. Another related to the evidence of recent complaint received from the mother of one of the boys. Only one ground was pressed and it constituted a sufficient basis for the appeal to succeed. In view of the concession concerning this ground made by counsel for the Crown (a concession correctly made in our opinion) it will be unnecessary to deal with it at length but its nature will be briefly indicated.

The ground directed attention to the fact that the trial judge, in his summing up, had not instructed the jury that they should not consider the evidence of each complainant boy when deciding whether the case had been established against the other. The judge, in fact, gave no directions to the jury in respect of the use they might make of the evidence from one complainant when considering the case against the other. He did no more in this regard than inform them that each charge had to be the subject of separate consideration.

It should be mentioned immediately that no objection was taken by counsel at the trial to the feature of the summing-up just mentioned, but in the appeal it was urged and not contested that the failure to object below should not stand in the way of the appellant's right to rely upon it because the result had been a miscarriage of justice. In these circumstances it seems proper to decide the appeal in accordance with the submission based on the trial judge's omission.

The friendship which existed in this case between the boys and their close association before the complaints against the appellant were made, raise a distinct possibility of concoction. In Hoch v. The Queen (1988) 165 C.L.R. 292 in the joint judgment at 296-297 it is pointed out that the "possibility of joint concoction" will destroy "the probative value of the evidence" in a case like the present so that the condition precedent to admissibility will not be met. As their Honours point out at that passage, one complainant's story will provide no more than circumstantial evidence in support of the version put forward by the other complainant and the requirement for the use of circumstantial evidence is that it shall bear no reasonable explanation other than the happening of the events in issue. Counsel for the Crown accepted that it was an error for the trial judge not to have directed the jury that the evidence from one complainant was inadmissible on the charge against the other in the circumstances where the possibility of concoction was undoubtedly present. As already stated, the concession, in the circumstances of this case, was correctly made.

The result is that the verdicts cannot stand and counsel for the appellant, conceding that the case was an appropriate one to order a retrial, such an order should be made.

The appeal should be allowed and the guilty verdicts in each case should be set aside and an order made for the retrial of the appellant on those charges.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 27/08/1996

I have read the joint reasons of the Chief Justice and Mackenzie J. As their Honours point out, the trial judge gave the jury no directions relating to the use which might be made of one complainant’s evidence, in relation to the offences involving the other complainant. The point taken was not that there should have been separate trials. Mr Rafter argued for the appellant that, given that the offences alleged to have been committed against two complainants were being considered in a single trial, it was necessary to give the jury proper directions to ensure that evidence relating to one complainant was not used in the case relating to the other.

The principal authority is now Pfennig (1995) 182 C.L.R. 461. That decision appears to me to change what might once have been thought to be the proper test to be applied in such cases. The issue in Pfennig was whether Pfennig had murdered a 10 year old boy, who disappeared one afternoon in the vicinity of Murray Bridge, South Australia, in January 1989. The case went to the High Court on the question whether the Crown should have been allowed to call evidence of offences which Pfennig had committed 11 months later; In August and September 1990 Pfennig had pleaded guilty to having abducted and raped another boy, aged 13, in December 1989 and the Crown was allowed to prove these pleas of guilty and the details of those offences. The nature of the Crown case is conveniently summarised in the reasons of McHugh J. at 537 et seq. There was evidence that Pfennig had contacts with the 10 year old boy on the afternoon in question; that a van similar to Pfennig was seen being driven away from the area "in a hurry" not long after the last time the boy was seen by anyone else; there was evidence that Pfennig had admitted a propensity to abduct young boys from public places to imprison them and sexually assault them; that on the day prior to the disappearance of the 10 year old boy, Pfennig spoke to two children whom he did not know and invited them to go with him in his van and show him places of interest; there was evidence suggesting that the missing boy would not have gone voluntarily to the place where his belongings were found; there was evidence, of an indirect kind, of the presence of Pfennig’s vehicle near that place. The circumstances induced in McHugh J. the opinion that the "only rational conclusion is that the appellant abducted [the 10 year old boy] for sexual purposes and later murdered him" (540, 541). McHugh J. took into account the whole of the evidence, not merely the propensity evidence, in reaching that conclusion, and that is the proper approach: see the principal judgment at p. 489, 490.

In the principal judgment in Pfennig, it was accepted that evidence of the admitted December 1989 offences could not be got in unless its probative value exceeded its prejudicial effect (483); but the Court said, and repeated (481, 482, 483, 484) that the test of admissibility of propensity evidence is the same as for circumstantial evidence, namely whether there is any reasonable view of the evidence consistent with the accused’s innocence. In applying that test, propensity evidence (which was, in Pfennig, the evidence of the later offences) is not considered in isolation but in the context of the rest of the Crown case. As I have pointed out in W (C.A. No. 62 of 1996, 20 August 1996), the majority in Pfennig, (at p. 481) equate the admissibility test of no reasonable explanation "other than the inculpation of the accused in the offence charged" with the test of no reasonable view of it other than as "supporting an inference that the accused is guilty of the offence charged" (emphasis added). A trial judge is free to use the latter test, which seems to me easier to apply.

Once similar fact evidence (a species of propensity evidence) is let in, having passed the Pfennig test to which I have just referred, it is necessary for the judge to explain to the jury in what way it may properly be used. As the majority judgment in Pfennig points out, often its relevance will be in "a striking similarity, underlying unity or ‘signature’ pattern common to the incidents disclosed by the totality of the evidence" (488), but that is not the only possible relevance of such evidence, as Pfennig illustrates.

In the present case, it was not argued that the evidence of what was said to have been done to one boy was relevant in considering the case against the other. But for that concession, it might have been necessary to consider whether in the light of Pfennig a view contrary to that concession might have been open.

I agree with the order of the Chief Justice and Mackenzie J.