R v Nagi
[2009] NSWDC 77
•11 February 2009
CITATION: R v Nagi [2009] NSWDC 77 HEARING DATE(S): 9 February 2009
10 February 2009
11 February 2009
12 February 2009
JUDGMENT DATE:
11 February 2009JURISDICTION: Criminal JUDGMENT OF: Bennett SC DCJ DECISION: 1. The application for separate trials is refused.
2. In respect of each of the charges particularising an offence against M M, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against L McP and C-A B.
3. In respect of each of the charges particularising an offence against L McP, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and C-A B.
4. In respect of each of the charges a particularising an offence against C-A B, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and L McP.CATCHWORDS: CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law – generally - CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - for particular purpose - sexual offences - CRIMINAL LAW - evidence - propensity, tendency and co-incidence - joinder of person or counts - CRIMINAL LAW - particular offences - offences against the person - sexual offences - joint trial - CRIMINAL LAW - procedure - information, indictment or presentment - joinder - joint or separate trial - effect of embarrassment or prejudice LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995CASES CITED: Pfennig v R (1995) 182 CLR 461
Phillips v R (2006) 225 CLR 303
R v Ellis (2003) 58 NSWLR 700
R v Fletcher (2005) 156 A Crim R 308
R v Folbigg [2002] NSWSC 1127
R v Lockyer (1996) 89 A Crim R 457
R v Martin [2002] NSWCCA 332PARTIES: Director of Public Prosecutions
Hassan NagiFILE NUMBER(S): 2008/00013633 COUNSEL: Mr T Bailey (Crown)
Mr C Steirn SC (Accused)SOLICITORS: Director of Public Prosecutions
Va Lawyers
JUDGMENT
Introduction
Count 11 Hassan Nagi was presented for trial on 9 February 2009 upon an indictment containing 10 counts, charging him with the following offences (to protect the privacy of the complainants the initial letters of their names are used throughout):
- On 18 July 2003 at Sydney in the state of New South Wales, did have sexual intercourse with M M without her consent knowing that she was not consenting thereto.
- On 18 July 2003 at Sydney in the state of New South Wales, did have sexual intercourse with M M without her consent knowing that she was not consenting thereto.
- On 16 December 2006 at Sydney in the state of New South Wales, did assault L McP and that the time of the assault did commit an act of indecency on her.
- On 16 December 2006 at Sydney in the state of New South Wales, did have sexual intercourse with L McP without her consent knowing that she was not consenting thereto.
- On 16 December 2006 at Sydney in the state of New South Wales, did have sexual intercourse with L McP without her consent knowing that she was not consenting thereto.
- On 16 December 2006 at Sydney in the state of New South Wales, did commit an act of indecency towards L McP.
- On 1 June 2007 at Kogarah in the state of New South Wales, did assault C-A B and at the time of the assault did commit an act of indecency on her.
- On 1 June 2007 at Kogarah in the state of New South Wales, did have sexual intercourse with C-A B without her consent knowing that she was not consenting thereto.
- On 1 June 2007 at Kogarah in the state of New South Wales, did have sexual intercourse with C-A B without her consent knowing that she was not consenting thereto.
- On one in June 2007 at Kogarah in the state of New South Wales, did have sexual intercourse with C-A B without her consent knowing that she was not consenting thereto.
2 To each of these charges the accused pleaded not guilty.
3 The accused asked that he not be presented for trial upon one indictment, but that there be separate trials for the offences alleged by the different complainants. On 5 February 2008 the accused filed a notice of motion seeking orders in the following terms:
“ 1. Pursuant to section 21 Criminal Procedure Act 1986 that the court should quash the present indictment and order separate trials in relation to those counts particularising a different complainant.
2. Leave be granted for short service on the Respondent to this motion.
3. Any other orders deemed appropriate. ”
4 The accused also opposed the application by the Crown in the cases to be presented in respect of each complainant, to adduce as coincidence evidence, evidence of the facts and circumstances of the offences alleged by the other two complainants.
Non-Publication Orders
5 Non-publication orders were made in respect of the names of the complainants and the accused, later extended to the evidence and submissions made and to be made upon these applications, to be revisited once I had reached my decision. This was a precaution against the risk of prejudice to the proceedings should there be separate trials, and to protect the privacy of the complainants. At the time there were a number of journalists in the public gallery taking notes.
6 On 11 February 2009 I lifted the non-publication orders made in respect of the name of the accused and the evidence, but those made in respect of the names of the complainants and information that might enable their identification remain.
The Proceedings
7 After the parties outlined the contest to be resolved before a jury was empanelled, and they had tendered the documents upon which they intended to rely, I adjourned the proceedings to the following day to allow me the opportunity to read the material.
8 On 10 February 2009 I resumed the hearing and heard the parties’ submissions, in the course of which each tendered further statements to be included in Exhibits 1 and 2 on the voir dire. I reserved, intending to inform counsel of my decisions that afternoon and publish my judgment on 11 February 2009. The parties were informed by email of the decision I had reached during the afternoon of 10 February 2009 to facilitate their preparation of the matter the following day. Upon resumption of the matter on 11 February 2009 I announced my orders, with my reasons to be published. Copies of the orders, bearing my signature were distributed to the parties and a copy placed on file. My orders were,
1. The application for separate trials is refused.
2. In respect of each of the charges particularising an offence against M M, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against L McP and C-A B.
4. In respect of each of the charges a particularising an offence against C-A B, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and L McP.3. In respect of each of the charges particularising an offence against L McP, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and C-A B.
9 The parties then sought further time to refine the issues and to negotiate agreement upon those facts that would not be contested to gain efficiency in the presentation of the trial. The matter was adjourned until later that afternoon when further time was sought to continue those negotiations. The trial was adjourned to commence at 10:00 am on 12 February 2009. When court resumed that day I was informed that the accused had instructed his counsel that he would plead guilty to offences charged in a fresh indictment, but some further time was sought to allow the preparation of that document and to allow the parties to settle an agreed statement of facts upon which the accused was to be sentenced.
10 The accused was thereafter presented on a fresh indictment charging six offences. He pleaded guilty to all charges upon arraignment, and he was formally convicted of each offence. The Crown tendered an agreed statement of facts, marked Exhibit A in the proceedings on sentence, and the hearing was adjourned to resume on 23 April 2009. Later in the day the parties asked the court to reassemble when it was learned that this date was not suitable; the hearing was reappointed to 28 May 2009 in the District Court, Sydney.
11 My decisions not to grant separate trials and to allow the Crown to adduce coincidence evidence were upon the evidence tendered on the voir dire. My reasons are therefore prepared upon that material, including the indictment upon which the accused was arraigned before me on the first occasion charging him with the 10 offences set out earlier in this document.
The Evidence
12 The Crown tendered a bundle of documents, which together were marked Exhibit 1 on the voir dire. Counsel for the accused read an affidavit filed in support of the notice of motion for separate trials, sworn by the accused’s solicitor on 3 February 2009, and tendered a statement from an officer of the Ministry of Transport. This statement was marked Exhibit 2 on the voir dire.
13 In the course of submissions the Crown tendered a further statement from “Mark”, M M’s boyfriend. This was added to Exhibit 1.
14 Counsel for the accused tendered further material, which was added to Exhibit 2. These were a certificate pursuant to section 177, Evidence Act 1995 by Dr Joshua Florida, dated 10 April 2008, pages 1 and 2 of a certificate pursuant to section 177, Evidence Act 1995 by David Bruce, date of preparation unknown, and a statement by Detective Senior Sergeant Evin Bouris dated 25 July 2008.
15 Both parties provided written submissions and spoke to them.
The Issues In The Trial
16 Counsel for the accused made some preliminary submissions acknowledging that the issue in the trial would be consent. The accused’s case was to be that any sexual conduct between the accused and the complainants was entirely consensual.
17 In relation to the offences in the first two counts on indictment, alleged to have taken place in 2003, the accused intended also to rely upon the fact that he was not a licensed taxi driver during that time, thereby challenging that proposition represented or implied in the evidence anticipated from the complainant M M. It was to be alleged that the accused and M M met during the evening and went to a hotel room for consensual sex, after which they returned to the hotel where they met and from there went on their separate ways. It was the accused’s case that if there was a sexual assault of her by a taxi driver, it was someone other than this accused.
The Crown Case
18 There are three discrete episodes of misconduct, which the Crown alleges against the accused.
19 The first event upon which counts one and two are charged is said to have occurred on 18 July 2003 when the accused, then in charge of a taxicab in the early hours of the morning, had anal sexual intercourse and then vaginal sexual intercourse without the consent of M M. The second event upon which counts 3, 4, 5, and 6 are charged is said to have occurred on 16 December 2006 whilst the accused was engaged as a taxicab driver in the early hours of the morning, when he indecently assaulted L McP by touching her vagina, had anal intercourse and vaginal intercourse, and then committed an act of indecency towards her by masturbating. The third event upon which counts 7, 8, 9, and 10 are charged is said to have occurred during the evening on the 1 June 2007 when the accused, engaged as a taxicab driver, indecently assaulted C-A B by touching her crotch, forced his penis into her mouth, and had vaginal intercourse with her twice.
20 There is no evidence of any association between the complainants, other than that each was the subject of sexual assaults by the accused as alleged by the Crown.
21 The evidence implicating the accused in these sexual encounters is compelling. Upon making their complaints, each of the women was examined and their bodies swabbed from which DNA with a profile matching that of the accused was identified, expected to occur in fewer than one in 10 billion individuals in the general population.
The Offences Alleged By M M
22 The Crown anticipated that M M would give evidence that during the evening of 17 July 2003 she consumed three bottles of wine with friends. After 11:30 pm she and one of her friends went to a club in Kings Cross where they continued drinking from about 12:30 am on 18 July 2003. She said that she became extremely intoxicated, and as a consequence was unable to remember much of what occurred after leaving the club.
23 She could not remember leaving the club or getting into a taxi. She described in her statement what she was told by her friend about her departure, and what she was told by her boyfriend of telephone conversations with him. She recalled that at some point she was sitting in the rear seat of a taxi behind the driver. There was no other passenger. She remembered speaking to the taxi driver but not the subject of their conversation. She said that she kept falling in and out of consciousness because of her intoxication.
24 Her next memory is of the taxi driver having opened the nearside rear door. Her initial thought was that they had arrived at her house and he was attempting to extract her from the vehicle, but he crawled into the rear seat, unzipped his fly, and said, "You want this, I know you want it." He repeated, "You want this." He forced himself on top of her. She struggled, but was limited by her intoxication. He pulled her pants and underwear down to her knees and forced her legs into the air so that her legs were over his shoulders or back. She described her position as being crouched back into the corner of the vehicle. He began to move back and forth in a thrusting motion, and inserted his penis into her anus. She continued to say, "Stop it, stop it, I don't do that." He then penetrated her vagina.
25 She did not see his penis, and could not say whether he wore a condom. The high vaginal swab taken when she was examined revealed semen from which DNA matching the accused’s profile was identified. This is consistent with the accused having not worn a condom, and is evidence from which one might infer that he did not do so. The Crown conceded the possibility that if he did wear a condom it might have ruptured, leaving a deposit of semen, however, the description of the event given by the complainant makes no reference to him having applied a condom or behaved in such a way that would indicate that he did so. In my opinion there is available upon the balance of probabilities the inference that he was not wearing a condom.
26 The complainant’s next memory is of speaking to her boyfriend to whom she complained, and then of an ambulance arriving at the vicinity of the post office on Glebe Point Road from whence she was taken to Royal Prince Alfred Hospital.
27 Mark was the complainant's boyfriend. His statement has been included in Exhibit 1 on the voir dire. He described a phone call from the complainant about 2:30 am. He was at the time in Canberra on business. He described her as upset and disoriented. She said that she had lost contact with her friend with whom she had gone for dinner and drinks. She told him that she did not know where she was. He told her to look for a taxi but to stay on the telephone until she had attracted one. When she did so, she had difficulty giving the driver instructions because of her intoxication, and Mark told her to put him on the telephone so that he could provide the address. Mark’s statement represents that he spoke to the driver, gave him the address, and asked him to make sure that she got home safely. The driver replied, "No problem. I will look after her."
28 By 3:30 am Mark had not heard from the complainant, notwithstanding that she had promised to call when she arrived home safely. He attempted to call her and was unsuccessful at first, but she answered about five minutes later. She made her complaint in the following terms, "I think he's done something to me." When asked who did something to her she said, "The taxi driver." After some further conversation she became hysterical and incomprehensible and terminated the call. He called her again but she was unresponsive, was unaware of the location, and complained of bleeding. An ambulance arrived and took her to hospital.
29 She described the taxi driver as solid, with dark hair, which was sort of bushy and wavy, and he appeared to be about 30 years of age. He had a Mediterranean complexion. He was wearing dark pants.
The Offences Alleged By L McP
30 The Crown anticipated that L McP would give evidence that on 15 December 2006 she travelled to Sydney by train where she met a friend about 5:00 pm. At about 6:30 pm she went to a bar in Sussex Street, Sydney where she remained with friends until 9:30 pm. She was drinking, but was not then very affected by alcohol and was in control of her conduct, her speech, and had a good memory of the events occurring at that time.
31 With her friend she travelled by taxi to Kings Cross where they were involved in an unrelated incident for which they attended Kings Cross police station. They left there about 12:30 am on 16 December 2006 and went to a nightclub. There she continued drinking with her friends. There was a point reached when her memory of events diminishes, but she recalls feeling sick inside the club. She told her friend, who said that she also felt sick, and they both went outside. She did not remember picking up her bag before doing so. They crossed the street and were sitting on steps until she vomited in a nearby garden. Her next memory is of being in a taxi. She was talking to the driver and the vehicle was moving. The driver referred to the fact that she’d had a baby and said, "It doesn't look like it, you’re so hot."
32 She was seated in the front passenger seat; he placed his left hand beneath her skirt and between her legs. She thinks that she moved her leg, and said that normally she would have done more and does not know why she did not. After a time he stopped the taxi at a grassed area near a crate, coloured orange brown and made of corrugated iron. She said it was about the size of a house. There were other cars parked to the left of the taxi about 7 metres away. She saw no other people around. She alighted from the taxi, and the driver came around and took her by the left arm. He led her to the back of the crate and held her against it by the wrists. He began to kiss her and placed his hand beneath her skirt and, “… fingered my vagina." She pushed his hand away and told him no, to which he said a few times, "C’mon baby, you're making me so horny." She told him that she had to find her friend and he said, "I'll take you back there soon, this won't take long." He also repeated words to the effect of, "You're making me so hot." He took her by the waist and pulled down her pants and raised her skirt. He bent her over so that she was facing the crate and penetrated her anus with his penis. She moved forward and pushed him back and told him to stop, but he laughed. She stood and tried to pull her pants back up but he pulled them down again and penetrated her anus once again. She said no and moved away again and walked back to the taxi. He ran to her and repeated, "C’mon baby, C’mon baby." He began to rub his hands “in” her vagina and said, "You’re so wet you’re making me horny." She was at that point standing with her back to the crate. He penetrated her vagina with his penis quickly. He did not use a condom. He said, "Just let me finish, I'm so close." He masturbated. He offered her $20, which she declined, and then offered her $50, which she also declined.
33 Her next memory is walking back into the club at Kings Cross. She complained to her friends and was taken to the police station at Kings Cross from whence she was taken to the Royal Prince Alfred Hospital and examined.
34 She described the taxi driver as aged in his early thirties, of Greek appearance, with an olive complexion, wearing a uniform of dark blue shorts and a pale blue short sleeve shirt, with black shoes and white socks. There were dark blue tags on his shoulders. His hair was black and short in length; about 3 cm. She described him as chubby, but not obese, although with a large stomach.
The Offences Alleged by C-A B
35 The Crown anticipated that C-A B would give evidence of her employment as a sex worker, in the course of which she provided massages and hand relief to her clients. She states that she did not provide other sexual services. She was employed on a casual basis at premises in Padstow. On either 15 May 2007 or 22 May 2007, she started work about 10:30 am or 10:45 am. Between 12:00 pm midday and 1:30 pm she serviced a client who introduced himself as Mohammed. He asked her for her telephone number, which she gave him. This was not unusual, and allowed her clients to make enquiries to see whether she was working when they next wanted to have her services.
36 About 2:30 pm on 1 June 2007 she agreed with her sister to go to a football match with their children, arriving there about 6:30 pm or 7:00 pm. About 10 minutes before half time she received a telephone call on her mobile phone from a man representing himself as Mohammed. She arranged to meet with him outside of the grounds.
37 About 8:23 pm he called to say that he was waiting out the front. There she saw a taxi, which she presumed Mohammed occupied. She opened the door and asked the driver whether he was Mohammed but he did not reply. He was speaking on the telephone. Because of traffic she entered the taxi, and realised that it was not Mohammed. She asked the driver who he was. He first claimed to be Mohammed, but then said that he was a friend of Mohammed, and thereafter represented that Mohammed was coming to join them. The complainant told him to pull over because she did not know him and wanted to leave the vehicle. He said that he would, but continued driving instead. He said into the telephone, "She is beautiful, she's hot." He used his left hand to grab at her shorts and placed it on her crotch. She asked him what he was doing, and he said, "She's fucking beautiful man." He reached over and touched her again and attempted to insert his hand inside pants.
38 She reached across and took hold of his penis, held it tight, and told him to pull up and stop what he was doing. Whilst speaking on the telephone he asked her to show him what was beneath her shirt. She did so, so that he would leave her alone. He asked her how much it would cost for her to fellate him and she refused, telling him that she didn't do that. She told him then in what she described as a joking manner that it would cost $100, but said that she would not do it anyway.
39 By that time they were in an industrial area. The driver turned off the engine. The complainant alighted from the vehicle, and told him to take her back to the football ground. He said that his friend was coming. She again told him that she wanted to return to the football ground, but he asked her to come and sit down on the grass nearby. She complied, through fear she said. He took his penis out of his pants and held it in his hand as he took her by the back of her head, pulled her down and said, "Here, suck my dick”.
40 She pulled her head back, told him to wake up to himself, commented that he was not wearing a condom, and said that she was not doing that. She made a general remark about cleanliness. He was continuing to hold her head and pulled it towards his penis, which he held with his right hand. He forced his penis into her mouth and thrust forward three times before he released her. She attempted to move away to which he said, "Where are you going, stop fuck arsing around." She said she was scared and wanted to get away from him.
41 Next, she was face first on the ground on her hands and knees, and saw his hands near his mouth. He put his hand inside the leg of her shorts and wiped it across the vagina as if he was lubricating her. She asked what he was doing, and he penetrated her vagina with his penis. She told him to stop. She complained that he did not have a condom and continued to tell him to stop. He turned her over onto her back and penetrated her vagina from the front through the leg of her shorts. She again told him to stop.
42 They returned to the taxi and he drove her back towards the football field, and on the way handed her his business card. When he reached traffic lights she took the opportunity to open the door and leave the vehicle. She complained to her sister.
The Submissions
43 The Crown submits that there are a number of comparable features in the evidence anticipated from these witnesses. It says there are seven features common to each of the events described.
44 First, the alleged offender was in each case driving a taxi. This is said to be significant of itself, but the Crown also points to the fact that as a taxi driver he was within a relatively small group, a member of the class of service provider including taxi drivers, bus drivers, and train guards. The Crown submitted that generally speaking, people would enter the vehicles used by these service providers without fear of conduct such as that suffered by these complainants. It is part of the Crown case that the accused exploited the trust given by the clients using the services provided by people such as the accused.
45 It is said on behalf of the accused that the fact that the alleged offender in each case was a taxi driver is not so significant. There is evidence that the accused was not the holder of a taxi driver's licence at a time of the incidents alleged by M M. He acknowledges a sexual encounter with this complainant, which was entirely consensual and in circumstances different to those described by her. If there was an incident involving a taxi driver, it was not this accused. It remains however, that upon the evidence tendered in these applications, M M described one sexual encounter on that evening, at the hands of the taxi driver in whose vehicle she found herself. There is no evidence that there was another sexual encounter involving this complainant in addition to that described in her statement, only the submissions of counsel upon this point. I do not mean to imply that these were not made in good faith and in accordance with instructions, but there is no evidence of the sexual encounter described by counsel.
46 Although there is evidence that the accused was not the holder of a taxi licence at the time of the first offences, it does not follow that he was not driving a taxi at the time.
47 The second point said by the Crown to be common to each complainant is that the offender made lascivious remarks. On behalf of the accused, it was said that this is not significant; in consensual sex one would expect that there would be such banter.
48 Thirdly, the sexual intercourse alleged in each case included the vaginal penetration. On behalf of the accused, it was said that sexual intercourse in this fashion is to be expected in a consensual relationship.
49 Fourthly, the complainant in each case was resistant to the sexual advances. Counsel for the accused submits that this is not of any significance, for it would be common to all such allegations except where the complainant might have been completely submissive. Moreover, this is conduct on the part of the complainant, which can be probative of nothing more than that in the particular case the complainant did not submit. I agree that this is not a matter that ought to be brought to account in the assessment of the similarity between the events and the circumstances in which they occurred.
50 Fifthly, the alleged offender did not use a condom. L McP and C-A B were both in a position to observe this, and it is a matter of inference on the balance of probabilities that the offender did not wear a condom with M M.
51 Sixthly, there was evidence of recent complaint. Counsel for the accused submits that once again this is a factor that is unique to the particular complainant in each case, and is probative of no more than she complained shortly after the alleged event. I agree that this is not a matter that ought to be brought to account in the assessment of the similarity between the events and the circumstances in which they occurred.
52 Seventhly, semen harvested from each complainant had DNA with the profile matching that of the accused. On behalf of the accused counsel acknowledged the sexual encounters, which he claims were entirely consensual, and submitted that since issue was not to be joined upon the proposition that there were sexual encounters in each case, whether semen was present or not is of no probative value for it did not indicate one way or the other whether the sexual activity was consensual.
53 I do not agree with that submission. The Crown submitted when speaking to the offences alleged by C-A B that it would be unlikely that a person employed in her industry would embark upon unprotected sex with a client unknown to her, because of the risk of infection and the resultant compromise to her health and ability to continue working. I am of the opinion that the risk of infection from an unknown sexual partner in unprotected sexual intercourse is a factor that would be of probative value upon the issue of consent.
54 The Crown also draws upon other features that are common between two of the three complainants.
55 In the case of the evidence from M M and L McP, both were in Kings Cross late at night, and were heavily intoxicated. It is the Crown case that the accused exploited their state of intoxication for the commission of his offences.
56 Both provided a description of the offender comparable to the accused.
57 In the case of the evidence from L McP and C-A B, both were taken to secluded areas; in the case of L McP to an area where there were unattended vehicles near some structure she described as a crate built of corrugated iron, and in the case of C-A B to an industrial area; both were out of the vehicle at the time the offences alleged took place.
58 In both cases there is evidence of the accused’s interest or concern regarding the lubrication of their vaginas. In each case he introduced the topic of payment for sex, and with C-A B he left his business card.
59 The Crown case is that the accused’s references to money, and the provision of his business card, was a premeditated attempt to provide an explanation for the sexual connection, against the probability that he would be identified as the perpetrator in these two incidents. The Crown submits that the effluxion of time between the first event, and the second and third events allows the inference that at the time of the commission of the first offences he was not so concerned about the risk of detection, but became so later as his offending continued and evolved.
60 The Crown also points to the reliability of the complaints by C-A B. I referred to this earlier. She was a sex worker, and one would accept, so it was submitted, that her concerns for her health were such that it would be contrary to common sense to accept that she would engage in consensual sex with a man unknown to her without the protection that a condom would offer her.
The Accused’s Application For Separate Trials
61 In support of the notice of motion an affidavit sworn by the accused’s solicitor was read. It rehearses the history of these proceedings from 5 September 2008 when the accused was first listed to appear for arraignment. The essence of the representations in the affidavit is that at some point earlier in these proceedings the lawyer then representing the Office of the Director of Public Prosecutions agreed that there should be separate trials for the discrete events from which the charges were brought, and that the accused would be presented in three separate trials upon indictments charging him in each case with offences alleged by the particular complainant. Notwithstanding these representations, on 2 December 2008 a copy of the indictment with all of the offences included was sent to the solicitor, and on 12 January 2009, upon his return to work after the Christmas vacation, the solicitor found notices of the Crown's intention to lead coincidence and tendency evidence. The notices were dated 19 December 2008. Annexed to the affidavits were copies of correspondence to the accused from the solicitor, the indictment, and the notices of intention to lead coincidence and tendency evidence.
62 Although the accused’s counsel informed the court that he relied upon the affidavit and the annexures, ultimately no point was taken in the course of submissions regarding the representations attributed to the lawyer representing the Crown at those interlocutory stages. They would not in any event have provided much assistance to the accused upon his application for separate trials. The views and the representations attributed to the earlier Crown representative could in no measure bind the Crown prosecutor given the brief to prosecute this trial.
63 The submissions made in support of the challenge to the Crown's intention to offer coincidence and tendency evidence as proposed in its notices were also ventured upon the application for separate trials.
64 The nature of this matter is such that the question whether the accused ought to face separate trials in respect of each of the complainants or be presented upon one indictment charging all counts is inextricably bound to the question whether the Crown ought to be permitted to lead coincidence evidence as proposed in its notice. If the Crown is permitted to lead coincidence evidence, the proper application of the relevant provisions of the Criminal Procedure Act 1986 would in my opinion require that the application for separate trials be refused. On the other hand, if the Crown ought not to be permitted to lead coincidence evidence, there remains discretion to allow the charges to proceed together.
65 Section 21 of the Criminal Procedure Act provides relevantly,
“ (1) …
(2) If of the opinion:the court may order a separate trial of any count or counts of the indictment.
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
(3) …
(4) An order under this section may be made either before trial or at any stage during the trial.
(5) …
(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. ”
66 Section 29 of the Criminal ProcedureAct provides relevantly,
“ (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:
(2) …
(a) the accused person and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.
(3) Proceedings related to 2 or more offences … may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. ”
67 For the reasons that will appear hereunder, I am of the view that in respect of each of the charges contained in the indictment particularising an offence against M M, the Crown should be permitted to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against L McP and C-A B, and that in respect of each of the charges particularising an offence against L McP, the Crown should be permitted to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and C-A B, and that in respect of each of the charges a particularising an offence against C-A B, the Crown should be permitted to adduce the sequences evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and L McP.
68 For the reasons that I came to those decisions, I am not of the opinion that the accused will be prejudiced or embarrassed in his defence by reason of the inclusion of all charges on one indictment, and I'm not persuaded that it is desirable to direct that he be tried separately for any one or more of the offences upon which is to be presented to the jury.
69 I find that there is no good reason why the court may not hear and determine together the proceedings relating to the offences alleged in respect of the separate complainants. I find that it is not in the interests of justice to require these complainants to attend court on three separate occasions to give evidence, in the circumstances where I propose to allow the Crown to lead the evidence it wishes to rely upon as coincidence evidence. The offences alleged against the accused are aptly described as a series of offences of the same or similar character. I have not overlooked that the first offences are alleged to have occurred in 2003, the second group in December 2006, and the third six months later in June 2007.
70 I am not of the opinion that the charges ought to be heard and determined separately in the interests of justice.
71 The application for separate trials is refused.
The Crown’s Application to Adduce Coincidence Evidence
72 Although the Crown issued notices of its intention to lead evidence of tendency and coincidence, it ultimately abandoned its application for leave to adduce the evidence for tendency purposes.
73 The high point of the submissions made on behalf of the accused against the Crown’s use of the evidence as coincidence evidence was that because each complainant alleged that she did not consent, the jury might without more conclude that the evidence of each of the complainants that they did not consent was more reliable. The following passage from the decision of the High Court in Phillips v The Queen (2006) 225 CLR 303 at paragraph [47] was cited:
“ Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her. ”
74 The structure of the prosecution of Phillips was not dissimilar to the present matter. The charges brought against him were in respect of six complainants alleging sexual assaults from disparate circumstances.
75 In Phillips v The Queen the view of the trial judge upon applications to lead evidence of similar facts, and upon an application for separate trials, was that the points of similarity identified were not of themselves or collectively of sufficient probative value to prove propensity on the part of the accused, but, that it was so improbable that five separate complainants would allege events with the comparable features identified, that the jury were permitted to consider the evidence of each of them as to what they allegedly suffered at the hands of the accused, when assessing the reliability of each of them upon the issue of consent. In the course of his summing up his Honour asked rhetorically what was the probability that all of the girls had lied when they said they did not consent to the appellant dealing with them sexually.
76 Their Honours in the High Court agreed with the opinion of the trial judge inferred from his remarks throughout the trial that the points of similarity identified were not particularly remarkable and were therefore of limited probative value as evidence of the accused’s propensity. At paragraphs [54] and [55], after summarising the principles relevant to the admissibility of similar fact evidence, their Honours wrote,
“ In this case none of these criteria are met - either on the issue of whether in relation to any particular charge the appellant committed the acts of assault or intercourse alleged, or on the issue of whether he did so being honestly and reasonably mistaken about consent. Take count 8, assaulting JD with intent to rape her. Where is the strong degree of probative force necessary to permit the exceptional reception of evidence that in earlier years the appellant had indecently assaulted or raped five other complainants? What was the really material bearing of that evidence on the issues to be decided on count 8? What was there about the prejudicial evidence which showed that on five earlier occasions the appellant had a strong desire for sexual intercourse (with consent if he could get it, without it if he could not) which caused its probative value clearly to transcend that prejudicial effect? Did the evidence have "strength in its probative force", or was its specific probative force "sufficiently great"? Did it have "some specific connexion with or in relation to the issues for decision" giving "significant cogency" to the evidence about count 8?
The similarities relied on were not merely not "striking", they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant's desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon. ”
77 The Crown responded to this submission by noting that Phillips v The Queen emanated from Queensland, and although a sound exposition of common law principle, this court is required to apply section 98 and section 101 of the Evidence Act, 1995, as amended: Regina v Ellis (2003) 58 NSWLR 700.
78 Although Phillips v The Queen, as the Crown correctly points out, must be read with appropriate circumspection when considering the terms of the legislation according to which this decision must be made, it does provide guidance. I am persuaded that the decision of the complainants in each case to complain early, and that they resisted the sexual advances in each case, ought to be set aside from the assemblage of features upon which the Crown advances its application.
79 I agree with the submission that the evidence of those facts shows the mental state of the complainant in each case at the relevant times, and whatever might have been the state of mind of one of them, it cannot say anything about the state of mind of the others. Moreover, there is nothing so remarkable in a complainant making an early complaint of sexual assault, or in resisting the sexual assault as it is taking place, that would elevate evidence of those facts to the point where it might be said to be significantly probative of the facts that will be in issue in this trial, namely, whether when the accused engaged upon the sexual connection acknowledged on his behalf, he did so without consent, knowing that the complainants were not consenting.
80 On the other hand, the other features to which the Crown points are not caught by the same criticism, and are matters relevant to the question whether the accused acted without the consent of the complainants knowing that they were not consenting. Moreover, in the case of the complainant M M, the relevance of the evidence of the other complainants extends beyond whether the accused had sexual connexion knowingly without her consent, to the issue of whether the accused did so in a taxicab, the use of which he denies pointing to the fact that he was not licensed to operate as a taxi driver at the time. The accused’s counsel said in his written submissions,
“ It is the accused’s position that he had met her in a hotel at Kings Cross earlier in the evening. They struck up a conversation and this led to the accused having consensual and casual sex with her at a private hotel at Kings Cross. After having sex they both returned to the hotel where they met and where they parted company. ”
81 In New South Wales the admissibility of this evidence as coincidence evidence is governed by sections 98 and 101 of the Evidence Act, 1995 and upon consideration of the provisions of sections 135 and 137 of the Act. I must also turn my mind to section 192 of the Act. I note that section 192A, recently included in the Act, allows for the resolution of these questions in advance of the evidence being adduced. Accordingly, there is no difficulty with the decision being reached upon the written statements provided by the complainants and other relevant documents without the complainants and other witnesses being called to describe the facts recorded in that written material. They were not required for cross-examination upon the voir dire.
82 The Crown gave early notice of its intention to offer this evidence as coincidence evidence, albeit in terms reflecting section 98 as it applied before the commencement of the amended provision on 1 January 2009. This said, no point was taken with regard to the notice and I am not called upon to consider whether it ought to have been expressed differently, or turn my mind to the notice requirement in section 98(1)(a) or the application of section 100 of the Act.
83 The relevant terms of the coincidence rule as provided before the amendments to the Act were:
“ (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:
(a) …
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.(3) … ”
(a) they are substantially and relevantly similar; and
(b) the circumstances in which they occurred are substantially similar.
84 Section 98 of the Evidence Act, recently amended, now provides relevantly,
“ (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
(a) …, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) …
Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule. ”
85 The word “related” has been omitted in the new formulation of section 98(1), and there is now no requirement of the Crown to show that the events were substantially and relevantly similar, or that the circumstances in which they occurred were substantially similar, all of which the Court was previously required to be satisfied before it could find that the events were related events.
86 The test now to be satisfied in respect of the evidence that two or more events occurred, to prove that the accused did a particular act or had a particular state of mind, will be met once the court is satisfied that having regard to the similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, the evidence of those events will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
87 If this test is met, then subject to section 101 of the Act, the evidence will be admissible to show the improbability of the two or more events occurring coincidentally, and may be used as evidence prove that the accused did a particular act or had a particular state of mind.
88 In each case, the issues to which the evidence is relevant are whether the accused had sexual intercourse with the complainant without her consent, knowing that she was not consenting thereto, and additionally in the case concerning M M, whether the accused had sexual intercourse with her in a taxi to which he had access at the time even though he was then unlicensed to operate the vehicle.
89 The term probative value is defined in the dictionary to the Evidence Act,
“ probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. ”
90 The word “significant” used in section 98 of the Evidence Act has been held to require that the probative value of this evidence must mean something more than mere relevance, but may be less than a substantial degree of relevance: R v Lockyer (1996) 89 A Crim R 457 per Hunt CL at CL at page 459; or must be of importance or consequence: R v Martin [2002] NSWCCA 332 at [67] approved by Wood CJ at CL in R v Folbigg [2002] NSWSC 1127 at [74].
91 In the cases of M M and L McP one may anticipate an attack developed upon their capacity to recall events in light of their state of inebriation, and with regard to the credibility of C-A B, her status as a sex work might excite an application for leave to examine and cross examine her about this work, the commercial aspects of it, and the acknowledged hold of the accused’s penis and her lifting of her shirt. There may be other avenues of attack upon their reliability or credibility of which I am unaware at this point in the proceedings, to shed doubt upon their assertions that they did not consent to the sexual connection by the accused. Even so, I am of the view that in each case, viewed independently of the allegations made by the other complainants, the evidence anticipated from each complainant has significant probative value with regard to the assessment of the probability that the accused sexually assaulted her, without her consent, knowing that she was not consenting.
92 I am also of the opinion that the evidence anticipated from the complainants is, in each case, capable of being ascribed significant probative value to the assessment of the probability that the accused sexually assaulted each of the other complainants, and that he acted without their consent, knowing that they were not consenting: R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338.
93 Accordingly, I find that the evidence of the similarities between the events and the circumstances in which they occurred are therefore admissible to prove the improbability of them having occurred coincidentally, and that the test required by section 98 is met.
94 The points of comparison upon which the Crown may rely for these purposes are:
- The offender was in each case was driving a taxi, and thereby exploited the vulnerability and trust of each complainant;
- In each case the offender made lascivious remarks, which although not precisely identical in their terms, were comparable;
- In each case the offender did not use a condom, thereby exposing the complainant to the risk of infection from unprotected sex with a man not previously known to her;
- In the cases of M M and L McP, both were in Kings Cross late at night, and were heavily intoxicated;
- The description of the offender given by M M and L McP were comparable;
- L McP and C-A B, were both taken to secluded areas;
- With L McP and C-A B the offender took steps to lubricate their vaginas;
- With L McP and C-A B the offender introduced the topic of payment for sex and in the case of C-A B he left his business card.
95 Section 101 of the Evidence Act provides,
“ (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) … coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) …
(4) … ”
96 The prejudice to which the accused is said to be exposed is the risk that the credibility of the assertions by the complainants in each case that they did not consent to the sexual intercourse will be used improperly to enhance the creditworthiness of the other complainants’ evidence that they did not consent to the sexual connection by the accused. In support counsel relies upon what was said in the High Court in Phillips v The Queen.
97 Phillips v The Queen was concerned with the alleged conduct of a young male, toward a number of complainants, about which there was nothing unusual. The behaviour alleged in respect of each complainant was comparable, but the similarities suggested were entirely unremarkable for a male teenager seeking sexual activity from girls of his own age. Moreover, the evidence was permitted in the trial to show the improbability of so many complainants alleging that their participation was without their consent.
98 In the present matter the court is faced with a man of mature age, who in a predatory manner is alleged to have exploited his position as a taxi driver and the vulnerability of the complainants M M and L McP from their intoxication late at night, and of C-A B who entered his vehicle presuming that it was occupied by one of her clients. The Crown would rely upon this evidence to prove the sexual intercourse as alleged in each case, and that the accused knew that the complainant in each case was not consenting; it is not offered with regard to the states of mind of the complainants, but with regard to the state of mind of the accused. The jury would be instructed carefully in those terms.
99 This submission also exposes the question whether this is a case where the statutory test as presently formulated for the admission of evidence as coincidence evidence would not be satisfied unless the common law test explained in Pfennig v The Queen (1995) 182 CLR 461 was also satisfied: Regina v Ellis (2003) 58 NSWLR 700: and whether accordingly the evidence should be excluded unless, when taken in conjunction with the balance of the evidence, the only rational explanation is the guilt of the accused in respect of the offence upon which the evidence is offered as coincidence evidence: R v Folbigg [2002] NSWSC 1127 at [81] and the authorities there cited. In my opinion the evidence upon which the Crown wishes to rely as coincidence evidence in the case of each of these complainants meets the more stringent test expounded in Pfennig v The Queen, whatever view one might have of the need for the application of that test to the present matter.
100 These findings also address the test required by section 137 of the Evidence Act. Furthermore, I am satisfied that the evidence will not be unfairly prejudicial to the accused, will not be misleading or confusing, and will not cause or result in any undue waste of time. Accordingly, I do not propose to exercise the discretion provided in section 135 of the Evidence Act.
101 In reaching this decision I have also considered the paragraphs in subsection 192(2) of the Evidence Act. I am of the view that the admission of this evidence as coincidence evidence will not impact adversely upon the length of the proceedings, that it will not be unfair to the accused, and that the evidence is of importance in the proceedings, in the case being presented by the Crown. I have not overlooked the fact that these are criminal proceedings. The jury would be directed in terms that the use of this evidence as coincidence evidence must not extend to the proposition that because each of the complainants said that they did not consent, their evidence on that point in each case was more reliable; this would in my opinion address the perceived risk of misuse.
The Orders
102 I make the following the orders,
1. The application for separate trials is refused.
2. In respect of each of the charges particularising an offence against M M, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against L McP and C-A B.
4. In respect of each of the charges a particularising an offence against C-A B, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and L McP.3. In respect of each of the charges particularising an offence against L McP, the Crown is given leave to adduce as coincidence evidence the evidence of the facts and circumstances alleged in respect of the offences against M M and C-A B.
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