R v Thomson

Case [2022] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomson [2022] QCA 36

PARTIES:

R
v
THOMSON, Edward James
(appellant)

FILE NO/S:

CA No 272 of 2020
DC No 100 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction: 6 November 2020 (Burnett DCJ)

DELIVERED ON:

18 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2021

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL COUNTS – where the appellant was convicted after trial of seven offences of sexual assault involving two complainants – whether evidence for the offences was cross-admissible – whether similar fact evidence bore sufficient probative force in the proof of the case involving the other complainant to displace the exclusionary rule – whether the trial judge erred in not severing the indictment under s 597A of the Criminal Code (Qld) – whether a retrial should be ordered

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEALWHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where in summing up the trial judge referred to the similarity between the two complainants as pubescent – where the trial judge referred to the similarity of the vulnerability of the two complainants – whether the jury was misled by the trial judge’s description of the complainants – whether the verdict was unreasonable – whether there was a miscarriage of justice

Criminal Code (Qld), s 590AA, s 597A(1)
Evidence Act1977 (Qld), s 21AK, s 93A, s 98, s 132A

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited
De Jesus v The Queen (1986) 61 ALJR 1; [1986] HCA 65, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, followed
Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, cited
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, followed
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited
Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, followed
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, followed
R v Bauer (2018) 266 CLR 56; [2018] HCA 40, cited
R v McNeish[2019] QCA 191, cited
R v Watson[2017] QCA 82, cited
R v WBN (2020) 5 QR 566; [2020] QCA 203, cited
R v WRC (2002) 130 A Crim R 89; [2002] NSWCCA 210, considered

COUNSEL:

L D Reece for the appellant
D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:

Continue reading R v Thomson

Sign in free to access the full text

Details
AGLC
R v Thomson [2022] QCA 36
Case
[2022] QCA 36
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, the appellant, Thomson, appealed against his convictions and sentences for multiple counts of sexual assault involving two complainants. The primary legal issues revolved around the admissibility of similar fact evidence and whether the trial judge erred in not severing the indictment under section 597A of the Criminal Code (Qld). The court had to determine if the evidence was cross-admissible and whether it had sufficient probative force to justify its admission. Additionally, the court examined whether the trial judge's comments during summation misled the jury and whether there was a miscarriage of justice.

The court found that the evidence of one complainant was indeed cross-admissible to consider the charges involving the other complainant, as it established the appellant's tendency to engage in sexual activities with underage girls. The similarities in the complainants' accounts, despite differing in specific details, demonstrated the appellant's unusual disposition and disregard for the risk of discovery. The court held that the probative value of the evidence outweighed its prejudicial effect, following the principles outlined in Hughes v The Queen. The court also concluded that the trial judge's comments, while perhaps not ideal, did not lead to a miscarriage of justice. The judge's remarks about the complainants being "pubescent" did not misdirect the jury, and the verdict was not unreasonable or insupportable given the evidence.

In conclusion, the court dismissed the appeal as there was no substantial miscarriage of justice. The trial judge did not err in admitting the similar fact evidence, and the jury's verdict was supported by the evidence presented. The court upheld the convictions and sentences imposed on the appellant.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

In order to properly consider each of the grounds, it is necessary to set out the essential facts of the offending on each count. In doing so, the counts can be identified in the following way:(a)Count 1 (COM) - indecent treatment of a child under 16, and under 12;(b)Count 2 (COM) - maintaining a sexual relationship with a child;(c)Count 3 (COM) - rape;(d)Counts 4-6 (COM) - indecent treatment of a child under 16;(e)Count 7 (COM) - attempted indecent treatment of a child under 16; and(f)Count 8 (VIC) - sexual assault.Background The appellant was aged between 33 and 36 at the time of offending. During the offending period, he lived with his wife and five children. In 2015, COM’s family moved to the town in which the appellant lived. Shortly after starting school, COM and one of the appellant’s daughters became friends, and COM began sleeping over at the appellant’s house. About 18 months later, COM’s family had to move out of their house and, as a result, the family moved into the appellant’s house. COM was 10 to 12 years old at the time of the offending. In 2013, VIC became friends with another of the appellant’s daughters. VIC was aged 16 at the time of count 8.Count 1 – indecent treatment Between 31 January 2015 and 1 March 2015, COM attended the appellant’s house for a sleepover with her friend, the appellant’s daughter. Whilst COM was in the shower, the appellant attempted to open the closed bathroom door. COM subsequently locked the door and placed a heavy basket in front of it to stop anyone from entering. When COM got out of the shower, she wrapped herself in a towel and proceeded to get dressed. Her friend was also in the bathroom at this time, although she was mostly dressed. The appellant entered the bathroom and began tickling COM, and touched her breasts and vagina.[1] COM told the appellant to stop and pushed him away. The appellant did not desist and told COM that he was tickling her.[1]This contact is the subject of count 1. One of the appellant’s older daughters walked past the bathroom and told the appellant to stop as COM was trying to get dressed. The appellant did not cease until other occupants of the house began to walk past.Count 2 – maintaining a sexual relationship with a child Between 31 August 2016 and 16 August 2017, the appellant sexually offended against COM on a regular basis. Whilst COM could not recall the first time something happened, she stated that since they had moved into his house the appellant would come into her room practically every day at times when her mother was not there, and touch her in inappropriate places. As an example of the frequency, COM estimated that the offending occurred almost every day, and on some occasions more than once a day. COM was unable to particularise each occasion, but stated that it involved one or more of the following actions:(a)intentionally walking in on her while she was in the shower;(b)attempting to touch her breasts;(c)placing his hand on her thigh and moving it towards her vagina;(d)placing his hands down her shorts and underwear;(e)touching or rubbing her vagina;(f)digitally penetrating her vagina; and(g)exposing his penis to her.

Evidence

Evidence Before The Court

As was noted in McNeish, the High Court in Hughes v The Queen[48] rejected the need to prove a tendency to show acts that were closely similar to the acts constituting the charged offence.[49] The approach in Hughes was summarised thus:[50]“[46]In Hughes itself, the majority regarded an inclination on the part of an adult to engage in sexual conduct with underage girls, coupled with his willingness to act upon that inclination, as itself an unusual disposition according to ordinary human experience. These unusual sexual interactions with children were pursued by the appellant in circumstances involving a substantial risk of discovery and his “disinhibited disregard of the risk” was itself an unusual feature proved by the evidence. The evidence may not have revealed a strict pattern of conduct because the appellant’s acts were opportunistic. However, that did not mean that the evidence was inadmissible. The force of the evidence was that it rendered each complainant’s account of misconduct by the appellant less liable to be rejected as unworthy of belief as an isolated incident. Consequently, the differences in the evidence on one count, which involved the appellant encouraging a 15 year old complainant to commit acts of indecency in a park and in a driveway, and the evidence concerning another complainant, which involved intrusive sexual acts in a darkened bedroom, in the complainant’s bed and when the complainant was aged six, seven or eight, did not matter. The probative value of the evidence lay in proof of the appellant’s tendency to act on the sexual attraction he felt towards underage girls, notwithstanding the risks of discovery. The fact that he acted out his sexual interest in a variety of different ways did not deprive the proof of its significant probative effect.”[48](2017) 263 CLR 338; [2017] HCA 20.[49]McNeish [45].[50]McNeish [46]; internal citations omitted. Emphasis added. In my view that passage is applicable here. There are four factors to consider:[51](a)first, what is the factual issue that the Crown seeks to prove by the evidence; in Hughes, as here, it was that the appellant had a particular tendency to have a sexual interest in young girls and to engage in sexual activities with them using his familial relationships to obtain access to them;(b)second, whether the evidence, if accepted, would prove that tendency;(c)third, whether the evidence of the other acts, if accepted, contains some feature which links the doing of the one set of charged acts with the other set of charged offence by reference to a particular issue in the case, whether that is identity, the issue of the commission of the offence or some other issue; that feature may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true; and(d)fourth, it is necessary to consider whether the probative force of the evidence, upon the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect.[51]McNeish [48]-[52].

Decision

Reasons for decision

In my respectful view, ground 2 fails.Conclusion Both grounds having failed, the appeal should be dismissed. McMURDO JA: This is another appeal against convictions of sexual offences upon the ground that the evidence of one complainant should not have been used to consider the charges involving another complainant. If the evidence of the complainants was not cross-admissible in that way, the charges based upon their respective complaints should not have been tried together, because in cases involving alleged sexual offending, the risk of impermissible reasoning by a jury is unlikely to be avoided by the directions of the trial judge: Hoch v The Queen,[82] referring to De Jesus v The Queen.[83] A second and related ground is that the trial judge misdirected the jury in some respects about the similarities of the complainants’ versions, and thereby the use which they could make of the evidence of one complainant in considering the complaints of the other. I agree with Morrison JA that the appeal should be dismissed although not for identical reasons.[82](1988) 165 CLR 292 at 294; [1988] HCA 50 (Hoch).[83](1986) 61 ALJR 1 at 3 (Gibbs CJ) 7 (Brennan J) and 1 (Dawson J); [1986] HCA 65. In every Australian jurisdiction apart from Queensland, the admissibility of evidence of this kind is governed by legislation, most commonly by the provisions of the so-called uniform Evidence Acts.[84] Section 97 of those Acts provides for what it calls the tendency rule, by which evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, may be admitted if the court thinks that the evidence will have “significant probative value”. Section 98 provides for what it calls the coincidence rule, by which evidence that two or more events occurred may be admitted, if similarities in the events and the circumstances in which they occurred make it improbable that the events occurred coincidentally. Again, it is a condition of admissibility under s 98 that the court thinks that the evidence will have significant probative value.[84]Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT) and Evidence (National Uniform Legislation) Act 2011 (NT). The High Court has said that this legislation has made substantial changes to the common law and, importantly, that it has resulted in a test of admissibility which is less demanding.[85][85]IMM v The Queen (2016) 257 CLR 300 at 311 [35]; [2016] HCA 14 at [35]; Hughes v The Queen (2017) 263 CLR 338 at 347 [13]; [2017] HCA 20 at [13]; R v Bauer (2018) 266 CLR 56 at 84 [52]; [2018] HCA 40 at [52]. In Queensland, with one qualification,[86] it is the common law rule which is applied to determine the admissibility of similar fact evidence. Queensland courts must apply the common law rule of admissibility as propounded in Hoch and confirmed in Pfennig v The Queen,[87] Phillips v The Queen,[88] and R v Bauer.[89][86]s 132A of the Evidence Act 1977 (Qld).[87](1995) 182 CLR 461; [1995] HCA 7 (Pfennig).[88](2006) 225 CLR 303; [2006] HCA 4 (Phillips).[89](2018) 266 CLR 56 at [52]; [2018] HCA 40.

Ratio Decidendi

Legal Principle Established

Therefore, the case urged by the Crown was that the evidence should be admitted because it was in the interests of justice that the jury see the case in its true factual context, the evidence being relevant, because it was believed the facts proved by that evidence rendered the commission of the charged offence more probable. Further, the evidence was cross-admissible because the evidence of one in the case of the other rendered the commission of the other offence more probable in that the appellant had a particular urge that he was prepared to satisfy by action.Consideration As was noted in McNeish, the High Court in Hughes v The Queen[48] rejected the need to prove a tendency to show acts that were closely similar to the acts constituting the charged offence.[49] The approach in Hughes was summarised thus:[50]“[46]In Hughes itself, the majority regarded an inclination on the part of an adult to engage in sexual conduct with underage girls, coupled with his willingness to act upon that inclination, as itself an unusual disposition according to ordinary human experience. These unusual sexual interactions with children were pursued by the appellant in circumstances involving a substantial risk of discovery and his “disinhibited disregard of the risk” was itself an unusual feature proved by the evidence. The evidence may not have revealed a strict pattern of conduct because the appellant’s acts were opportunistic. However, that did not mean that the evidence was inadmissible. The force of the evidence was that it rendered each complainant’s account of misconduct by the appellant less liable to be rejected as unworthy of belief as an isolated incident. Consequently, the differences in the evidence on one count, which involved the appellant encouraging a 15 year old complainant to commit acts of indecency in a park and in a driveway, and the evidence concerning another complainant, which involved intrusive sexual acts in a darkened bedroom, in the complainant’s bed and when the complainant was aged six, seven or eight, did not matter. The probative value of the evidence lay in proof of the appellant’s tendency to act on the sexual attraction he felt towards underage girls, notwithstanding the risks of discovery. The fact that he acted out his sexual interest in a variety of different ways did not deprive the proof of its significant probative effect.”[48](2017) 263 CLR 338; [2017] HCA 20.[49]McNeish [45].[50]McNeish [46]; internal citations omitted. Emphasis added. In my view that passage is applicable here. There are four factors to consider:[51](a)first, what is the factual issue that the Crown seeks to prove by the evidence; in Hughes, as here, it was that the appellant had a particular tendency to have a sexual interest in young girls and to engage in sexual activities with them using his familial relationships to obtain access to them;(b)second, whether the evidence, if accepted, would prove that tendency;(c)third, whether the evidence of the other acts, if accepted, contains some feature which links the doing of the one set of charged acts with the other set of charged offence by reference to a particular issue in the case, whether that is identity, the issue of the commission of the offence or some other issue; that feature may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true; and(d)fourth, it is necessary to consider whether the probative force of the evidence, upon the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect.[51]McNeish [48]-[52].