R v Newman

Case [2020] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newman [2020] QCA 92

PARTIES:

R
v
NEWMAN, Scott Graham
(appellant)

FILE NO/S:

CA No 167 of 2019
DC No 1415 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 May 2019 (Lynham DCJ)

DELIVERED ON:

6 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2020

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

1.   The appeal be allowed.

2.   The conviction be quashed.

3.   There be a retrial on that Count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of one count of sexual assault – where the appellant was sentenced to imprisonment for four months to be suspended for an operational period of twelve months – where the appellant appeals against conviction on the ground that the trial Judge erred by admitting into evidence similar fact evidence of two witnesses (Clarkson and Taylor) – where the appellant gave the complainant a lift home when the complainant was intoxicated – where the appellant initiated sexualised conversation with the complainant – where the assault was particularised as touching the complainant in the area of his genitals, without the complainant’s consent – where the evidence of Clarkson and Taylor was consistent with the appellant engaging in sexualised conversation with the complainant during the drive but no more – whether the evidence of Clarkson and Taylor was of any probative force to the central issue at trial of whether the appellant sexually assaulted the complainant – whether the evidence of Clarkson and Taylor would have eliminated any reasonable doubt the jury had from the evidence that the appellant sexually assaulted the complainant – whether the directions to the jury about propensity evidence were sufficient to overcome the impermissible use by the jury of the evidence of Clarkson and Taylor

Criminal Code (Qld), s 24

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, applied
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied
R v WRC (2002) 130 A Crim R 89; [2002] NSWCCA 210, applied

COUNSEL:

B Power for the appellant
D Balic for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.

  2. McMURDO JA:  I agree with Boddice J.

  3. BODDICE J:  On 23 May 2019, a jury found the appellant guilty of one count of sexual assault.

  4. On 28 May 2019, the appellant was sentenced to imprisonment for four months, to be suspended forthwith, for an operational period of twelve months.

  5. The appellant…

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Details
AGLC
R v Newman [2020] QCA 92
Case
[2020] QCA 92
Decision Date

CaseChat Overview and Summary

In R v Newman, the appellant appealed his conviction for sexual assault, arguing multiple grounds including the improper admission of evidence from two witnesses, Clarkson and Taylor. The court was tasked with determining whether the trial judge's admission of this evidence was erroneous and whether it affected the jury's verdict. The appellant claimed that the evidence was not probative of the central issue of whether he had sexually assaulted the complainant and did not eliminate reasonable doubt. The court had to evaluate whether the trial judge's directions to the jury adequately addressed the use of propensity evidence.

The court examined the nature of propensity evidence, which is a special class of circumstantial evidence, and its high prejudicial capacity, necessitating stringent admissibility requirements. The court referenced Pfennig v The Queen, where the High Court established that similar fact evidence must be highly probative and provide specific cogency to the prosecution's case. This analysis included determining if there was a reasonable view of the evidence consistent with the appellant's innocence. The court also considered whether the jury directions were sufficient to prevent any impermissible use of the evidence by the jury.

After careful consideration of the evidence and the relevant legal principles, the court concluded that the trial judge erred in admitting the evidence of Clarkson and Taylor, as it did not have the required probative force. The court found that the evidence did not significantly contribute to proving the appellant's guilt and could have misled the jury. Consequently, the court allowed the appeal, quashed the conviction, and ordered a retrial on the count of sexual assault.

Orders

Orders of the court

1. The appeal be allowed.

2. The conviction be quashed.

3. There be a retrial on that Count.

Background

Background to the litigation

The appellant appeals that conviction. He relies on four grounds of appeal:-(i)The learned pre-trial hearing Judge erred by admitting into evidence the “similar fact” evidence of Lyle Taylor and Ashley Clarkson.(ii)The learned trial Judge erred by not giving the jury direction as to the defence of mistake of fact as to consent.(iii)A miscarriage of justice was occasioned by the jury directions as to the use of the evidence of the witnesses, Taylor and Clarkson.(iv)A miscarriage of justice was occasioned by the jury directions as to the use of the appellant’s statements in his interview with police about his habit of driving to collect strangers and transporting them home.Background The appellant was born on 6 August 1967. He was aged 48 at the time of commission of the offence and 51 at the date of sentence. The sexual assault was committed on 2 July 2016 in the appellant’s motor vehicle after the appellant had offered the complainant, a man who was unknown to the appellant, a lift home from Fortitude Valley. The assault was particularised as touching the complainant in the area of his penis, without the complainant’s consent.Evidence On the afternoon of 1 July 2016, the complainant and his partner drove to a work colleague’s home at Indooroopilly before travelling to Suncorp Stadium. After watching a football match, they travelled back to the work colleague’s home. The complainant had consumed a quantity of alcohol throughout that afternoon. Subsequently, his partner drove him to Fortitude Valley where he met some friends. The partner returned to her home. The complainant and some friends travelled to a nightclub, arriving between 12.30 and 1 am in the morning and left between 1 and 2 am. The complainant consumed a quantity of alcohol whilst at the nightclub. Upon leaving the nightclub, the complainant walked to obtain food. He then intended to obtain a taxi or an Uber home to his partner’s residence. The male complainant stopped at a bus stop, thinking it would be a better stop to obtain a taxi or Uber. He used his mobile phone to download Uber. Shortly after, a motor vehicle stopped at the bus stop. He thought it was either an Uber or a chaplaincy program worker. The complainant, under the impression it was an Uber, told the driver where he wanted to go, before hopping into the motor vehicle. The complainant said there was general discussion during the drive. At one point, the driver said “do you want to have a threesome with me?”. The complainant laughed in nervousness. The complainant next remembered the motor vehicle pulling into a side street. He told the driver it was not the right way. The driver responded that it would be alright. The driver asked the complainant what he was packing and if they could go back to the driver’s place to sort it all out. The complainant said the driver began “groping”; touching the complainant on his inner thigh before cupping, rubbing and groping the complainant’s genitals with his right hand. After a minute or two of touching, the complainant said “I just want to go home”. At that point, the driver let go “of my parts”. The complainant took the opportunity to get out of the vehicle. As the driver came around the vehicle, the complainant ran towards the main road. He tried to telephone his girlfriend and then the police, but his telephone went flat. He ran towards a service station. He said he was upset and crying and told the attendant he had been sexually assaulted. He asked her to telephone the police. The complainant said he did not consent at all to the appellant touching his genital area. He did not say anything, he was “frozen”.

Evidence

Evidence Before The Court

The sexual assault was committed on 2 July 2016 in the appellant’s motor vehicle after the appellant had offered the complainant, a man who was unknown to the appellant, a lift home from Fortitude Valley. The assault was particularised as touching the complainant in the area of his penis, without the complainant’s consent.Evidence On the afternoon of 1 July 2016, the complainant and his partner drove to a work colleague’s home at Indooroopilly before travelling to Suncorp Stadium. After watching a football match, they travelled back to the work colleague’s home. The complainant had consumed a quantity of alcohol throughout that afternoon. Subsequently, his partner drove him to Fortitude Valley where he met some friends. The partner returned to her home. The complainant and some friends travelled to a nightclub, arriving between 12.30 and 1 am in the morning and left between 1 and 2 am. The complainant consumed a quantity of alcohol whilst at the nightclub. Upon leaving the nightclub, the complainant walked to obtain food. He then intended to obtain a taxi or an Uber home to his partner’s residence. The male complainant stopped at a bus stop, thinking it would be a better stop to obtain a taxi or Uber. He used his mobile phone to download Uber. Shortly after, a motor vehicle stopped at the bus stop. He thought it was either an Uber or a chaplaincy program worker. The complainant, under the impression it was an Uber, told the driver where he wanted to go, before hopping into the motor vehicle. The complainant said there was general discussion during the drive. At one point, the driver said “do you want to have a threesome with me?”. The complainant laughed in nervousness. The complainant next remembered the motor vehicle pulling into a side street. He told the driver it was not the right way. The driver responded that it would be alright. The driver asked the complainant what he was packing and if they could go back to the driver’s place to sort it all out. The complainant said the driver began “groping”; touching the complainant on his inner thigh before cupping, rubbing and groping the complainant’s genitals with his right hand. After a minute or two of touching, the complainant said “I just want to go home”. At that point, the driver let go “of my parts”. The complainant took the opportunity to get out of the vehicle. As the driver came around the vehicle, the complainant ran towards the main road. He tried to telephone his girlfriend and then the police, but his telephone went flat. He ran towards a service station. He said he was upset and crying and told the attendant he had been sexually assaulted. He asked her to telephone the police. The complainant said he did not consent at all to the appellant touching his genital area. He did not say anything, he was “frozen”. In cross-examination, the complainant accepted that, whilst the male driver was fondling his inner thigh and genital area, he said something to the effect “look I just want to go home”. At that point, the male driver stopped touching him. He accepted he was intoxicated, in that the alcohol was having some effect on him. He accepted he went into the vehicle willingly, after accepting an offer to be driven home. The driver did not threaten him or act in a violent way. He had no trouble opening the car door when he went to leave the vehicle.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits that there was no misdirection as to the use of the evidence that the appellant would drive late at night. The jury were not told that this evidence was bad character evidence or similar fact evidence. The prosecutor used that evidence to cast doubt as to the veracity of the appellant’s interview with police. The trial Judge expressly directed the jury it was a matter for them as to what weight they attached to any of the appellant’s answers. Although the trial Judge did use the term that it led to guilt, that reference was quickly followed by an assertion that the content was also consistent with innocence. Defence counsel raised no concerns about the direction.ConsiderationGrounds 1 and 3 Propensity evidence is a special class of circumstantial evidence. By its nature, its prejudicial capacity is high. Accordingly, such evidence, to be admissible, must be highly probative and its admission is subject to the satisfaction of stringent requirements. In Pfennig v The Queen[1] Mason CJ, Deane J and Dawson J held, in respect of propensity evidence:-“.. the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.” (Citations omitted)[1](1995) 182 CLR 461 at 482 – 483. The need for similar fact evidence to be highly probative supports the requirement, as explained in Pfennig, that the evidence “have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”[2][2]Pfennigv The Queen (1995) 182 CLR 461 at 485. The requirement to give cogency to the prosecution case or some aspects of it was further explained by the High Court in Phillips v The Queen[3]:-“What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations. First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.” (Citations omitted)[3](2006) 225 CLR 303 at 323 – 324 [63]; [2006] HCA 4 at [63].