R v TKW
[2008] QDC 128
•19 June 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
R v TKW [2008] QDC 128
PARTIES:
R
v
TKW
FILE NO/S:
Indictment 3120/2006
DIVISION:
Criminal
PROCEEDING:
Application under s 590AA, Criminal Code
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
19 June 2008
DELIVERED AT:
Brisbane
HEARING DATE:
13 June 2008
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 by consent, adjourn the second part of the application filed 17 March 2008 (the ‘Basha’ enquiry) to a date to be fixed on seven days’ notice in writing from one party to the other
2 In respect of paragraph 1 of the application filed 17 March 2008, the defendant’s application succeeds in so far as it relates to that part of the complainant’s evidence in her s 93A statement concerning the massages and washing clothing in the workshop, but otherwise fails
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – discretion to exclude from evidence at trial parts of a complainant’s evidence –whether evidence, previously described as “uncharged acts”, satisfies the test in Pfenning
Criminal Code Act 1899
Cases considered
HML v The Queen [2008] HCA 16
Pfennig v The Queen [1995] 182 CLR 461
R v Basha (1989) 39 A Crim R 337COUNSEL:
M J Byrne QC for the applicant/defendant
A J Edwards for the respondentSOLICITORS:
Ryan and Bosscher for the applicant
Director of Public Prosecutions for respondent
[1] This is an application by the defendant under s 590AA of the Criminal Code for orders that certain parts of the complainant’s evidence be excluded at his trial; and, that an expert witness be further cross-examined before the trial in light of a suggestion that the opinion evidence he will give at trial may differ from the evidence he gave at earlier committal proceedings.
[2] The first application relates to evidence involving allegations of what was, until recently, usually called ‘uncharged acts’. The second application involves what is usually called a ‘Basha’ enquiry, after R v Basha (1989) 39 A Crim R 337. At the outset of the hearing Counsel agreed the Basha enquiry should be adjourned.
[3] The applicant defendant is charged with one count of procuring a sexual act by administering a drug, and one count of rape. Both charges arise out of the one incident. The complainant is his daughter who was aged 13 at the time.
[4] The Crown will allege that on the relevant date, 13 July 2005, the defendant gave his daughter, who was living with him at the time, two small tablets. She will say that after taking the tablets she fell asleep and woke in the early hours of the following morning to find the defendant committing the acts with which he was charged. Subsequent blood tests the following day revealed the presence of a drug in the complainant’s blood.
[5] The prosecutor intends to lead evidence of what have traditionally been called ‘uncharged acts’ – here, conduct in the part of the defendant alleged to show he had said and done things suggesting he had, at around the time of the alleged offences, an unnatural and unlawful sexual interest in his daughter.
[6] The evidence is of four things. The first, that the defendant had been insisting on rubbing cream on a rash under his daughter’s arm, accompanied by a further insistence for this purpose she take off both her shirt, and bra; and, that this occurred despite her protests that she could do it herself, and without removing her top. The second is that he had massaged her back when she was not wearing a top, or bra. The third, that he would tell her to take her shirt off when she was washing things in a workshop at his premises. Fourthly, that just before her 13th birthday he had asked her if she masturbated and when she said that she did not that he had insisted on examining her vagina to see if she was missing a flap of skin. She refused to allow this.
[7] It appears in a transcript of the complainant’s evidence in a s 93A recording that while discussing the rubbing of cream under her arms she said words to the effect that earlier in the same year she had back pains caused by her sporting activity and the defendant had told her to take her shirt and bra off and proceeded to give her massages. In its written submissions for the present application the Crown conceded that there was no evidence that these massages involved anything other than the complainant lying face down and no suggestion she protested or that the defendant used these occasions, or attempted to use them, for any purpose suggestive of a sexual interest.
[8] The recent decision of the High Court in HML v The Queen [2008] HCA 16 suggests, firstly, that what had formerly been generally referred to as ‘uncharged acts’ might now be better referred to either as ‘criminal offences’ or ‘discreditable conduct’. Otherwise, the ratio of the case appears to be that evidence of this kind (criminal offences) can only be used if it meets the test in Pfennig v The Queen [1995] 182 CLR 461 – namely, whether it supports an inference that the accused is guilty of the offence charged and is open to no other innocent interpretation. In HML Hayne J (with whom Kirby and Gummow JJ agreed) said:
[107]Evidence of other sexual conduct which would constitute an offence by the accused against the complainant will usually satisfy the test stated in Pfennig. It will usually satisfy that test because, in the context of the prosecution case, there will usually be no reasonable view of the evidence, if it is accepted, which would be consistent with innocence. That is, there will usually be no reasonable view of the evidence of other sexual conduct which would constitute an offence by the accused against the complainant other than as supporting an inference that the accused is guilty of the offence charged.
[108]In Pfennig, the relevant question is stated as ‘whether there is a rational view of the evidence that is consistent with the innocence of the accused’ … the enquiry is whether the evidence in question supports an inference that the accused is guilty of the offence charged, and is open to no other, innocent explanation.
…
[118]… Pfennig requires 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.
[9] While some of the evidence relied upon by the prosecution here might arguably amount to other sexual offences, it does not have to possess that quality to have probative value. As Hayne J said, earlier in his judgment:
[109]In cases of the present kind, evidence of other sexual conduct which would constitute an offence by the accused against the complainant shows that the accused had then demonstrated a sexual interest in the complainant, and had been willing to give effect to that interest by doing those other acts.
…
[111]Evidence of other conduct which did not constitute any offence, but which it is alleged demonstrated the accused’s sexual interest in the complainant (as was the case with HML) may present more difficult issues. It may be harder to decide whether, in the context of the prosecution case, there would be no reasonable view of that evidence consistent with innocence. Deciding whether the evidence, if accepted, demonstrated the accused’s sexual interest in the complainant will, in some cases, turn upon the construction put on the conduct in question. That conduct may be equivocal. If interpreting that conduct as showing sexual interest depends upon the prior acceptance of other evidence of separate offence demonstrating that evidence, evidence of the conduct would not be admissible.
In HML the particular evidence concerned the purchase, by the appellant, of G-string underwear for his daughter. Hayne J said elsewhere, of this evidence:
[174]… The evidence about the purchase of the underwear did not stand alone in the case. Its admissibility was to be judged in the context of the prosecution case and to be judged without knowing what explanation or answer the appellant would make to the evidence. … In the context of the prosecution case, if the evidence bore the interpretation asserted, it was a step in proving that the appellant had committed the offence as charged. But that step depended upon the interpretation given to the evidence of purchase and gift. And on the complainant’s account of the event, an unsolicited gift following her enquiry about what the garments were) it would be open to the jury to interpret it as evidence of sexual interest.
[175]But that conclusion was not inevitable. It was not inevitable because the evidence revealed nothing more having been said about or done with the items. The evidence was, therefore, equivocal and the resolution of the equivocation necessary depended upon proof of the other events described by the complainant. Evidence of the purchase of underwear, though relevant, was not admissible in proof of the appellant’s sexual interest in the complainant.
It is difficult to see how any rational but innocent explanation could be proffered for the applicant’s insistence, over the complainant’s protests, that she uncover her breasts at the time the cream was to be applied. It was entirely unnecessary for that purpose and in any event she could apply the cream herself. In those circumstances insistence upon removal not only of her shirt but also her bra effectively expunges any rational prospect of an innocent explanation.
The same conclusion applies, even more compellingly, to the evidence of the defendant’s questions of the complainant about masturbation and his request to look at her vagina.
Those conclusions would ordinarily follow in the context of any charge of a sexual nature involving a complainant and a defendant in this relationship, and these circumstances. It may also, of course, be of particular relevance in the context of an allegation that the applicant drugged and digitally raped his daughter. Without the evidence a jury may have difficulty resolving whether the applicant was the person who supplied the drug to the complainant; or, in the absence of any evidence of the manifestation of a sexual interest, accepting that a father would commit such an act. That is particularly so given the effect of the drug referred to in the evidence which can make a person difficult to arouse, and cause some amnesia.
The evidence about the defendant urging the complainant to remove her shirt while washing clothing in the workshop may however, like the evidence about massages, be amenable to a rational and innocent construction. In light of her rash and the absence of a suggestion this conduct of the defendant also involved urging the complainant to remove her bra, and therefore wash without any top, the defendant’s alleged statements are open to that construction.
The defendant’s application succeeds in so far as it relates to that part of the complainant’s evidence in her s93A statement concerning the massages and washing clothing in the workshop, but otherwise fails. I will hear submissions about the proper form of order.
0
0
1