R v YF

Case [2023] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v YF [2023] QCA 111

PARTIES:

R
v
YF
(appellant)

FILE NO/S:

CA No 109 of 2022
DC No 263 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 12 May 2022 (Kent KC DCJ)

DELIVERED ON:

30 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2023

JUDGES:

Morrison and McMurdo JJA and Brown J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER MATTERS – where the appellant was found guilty of three counts of sexual offending against two complainant sisters, A and B – where the cross-admissibility of the evidence of offending against each complainant was challenged at a pre-trial hearing and the appellant applied to sever Counts 1 and 2 from Count 3 on the indictment – where the evidence was ruled cross-admissible – where the appellant appeals against conviction on the ground that it was an error to make a pre-trial ruling to allow the admission of evidence in relation to Counts 1 and 2 as uncharged acts purportedly demonstrating sexual interest in pre-pubescent girls and a propensity to act on that interest when confronted with an opportunity to do so – whether the pre-trial hearing judge erred in ruling the evidence of the complainant sisters to be cross-admissible

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where the pre-trial hearing judge refused an application for the charges related to complainant A to be tried separately from the charge involving complainant B – whether the counts involving complainant A formed part of a series of offences of the same or similar character as those involving complainant B, and vice-versa – whether A’s evidence was of sufficiently strong probative value to make it admissible in proof of the offending against B, and vice-versa – whether the pre-trial hearing judge erred in refusing the application for a separate trial of the counts concerning complainant A

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where propensity evidence of two complainant sisters was admitted by the trial judge – where a direction was issued to the jury that they must be satisfied of the truth of each account – whether the trial judge was required to give a specific warning regarding the risk of concoction

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where evidence of offending against complainants A and B was cross-admissible as evidence purportedly demonstrating sexual interest in pre-pubescent girls and a propensity to act on that interest – where the appellant contends that the prosecutor’s closing address impermissibly framed the evidence…

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AGLC
R v YF [2023] QCA 111
Case
[2023] QCA 111
Decision Date

CaseChat Overview and Summary

In this matter, the appellant was found guilty of three counts of sexual offending against two complainant sisters, A and B. The appellant has appealed against his conviction on several grounds, primarily arguing that the trial judge erred in allowing the admission of cross-admissible evidence and in refusing to sever the counts for separate trials. The central issue before the court was whether the pre-trial hearing judge erred in ruling the evidence of the complainant sisters to be cross-admissible and in refusing an application for the charges related to complainant A to be tried separately from the charge involving complainant B.

The court considered the principles of cross-admissibility as outlined in Pfennig v The Queen and R v WBN, which allow for the admission of evidence of uncharged acts if they demonstrate a propensity to commit the charged offences. The court found that the evidence of the complainants was sufficiently probative to demonstrate the appellant's sexual interest in pre-pubescent girls and his propensity to act on that interest. The similarities in the offending, such as the nature of the offences, the setting, and the appellant's position of advantage, supported the cross-admissibility of the evidence. The court also rejected the argument that the evidence could be seen as consistent with innocence, noting that the Crown had the burden to establish admissibility, not the defence to establish inadmissibility.

Furthermore, the court ruled that the counts involving complainants A and B formed part of a series of offences of the same or similar character, justifying their joinder on the same indictment. The court held that the pre-trial hearing judge did not err in refusing the application for separate trials. The strong probative value of the complainants' evidence, when considered together, supported the decision to try the charges jointly. The court also considered the potential prejudice to be outweighed by the probative value of the evidence, and found no error in the trial judge's refusal of a separate trial application.

The final orders of the court were that the appeal against conviction be dismissed. The court found no merit in the appellant's grounds of appeal and upheld the conviction.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Ground 2 only arises in the event the Court finds that the evidence in question was not cross-admissible.Particulars of charges and background facts On 14 July 2020, an indictment was presented charging the appellant with three counts of indecent treatment of a child under 16, under 12, under care (domestic violence offence). Counts 1 and 2 related to complainant A, while Count 3 related to complainant B. The complainants, A and B, are sisters and the step-grandchildren of the appellant’s then partner. A was 10 years old at the dates particularised for Counts 1 and 2 and B was nine years old at the time the offending relevant to Count 3 occurred. Counts 1 and 2 were particularised as having been committed between 20 December 2018 and 4 January 2019, during the Christmas school holidays when A was visiting her step-grandmother. On the first occasion it was alleged that the appellant touched A’s breast/s on the outside of her clothing with his hand/s. On the second occasion it was alleged that whilst near a dam on the property, the appellant touched A’s breast/s on the outside of her clothing with his hand/s. Count 3 was particularised as having been committed between 9 and 16 April 2019, when B was visiting her step-grandmother over Easter. As to that count, it was alleged that the appellant touched B’s bottom and/or leg with his penis. The step-grandmother lived some distance from the complainants’ mother and step-father. She was working from the house during the period when both A and B were visiting. There were two sheds on the step-grandmother and appellant’s property. Those sheds were referred to as the “big shed” and the “little shed near the dam”. The appellant operated an upholstery business out of the big shed. The offending occurred in each case when A and B had been spending time alone with the appellant playing in or near the sheds. According to A, Count 1 occurred when she was in the big shed with the appellant when without warning he came up behind her and placed his arms around her shoulders, rubbed her chest near her neck and touched her “boobs” on the outside of her shirt for approximately 5 seconds. On the second occasion, the timing of which was the subject of different accounts by A, A was with the appellant at the little shed near the dam. A was standing watching possums, a mother and baby, when the appellant came over and put a box and moved a metal tin near the possums then put his arms around A’s shoulders, rubbed her chest for about 10 seconds and touched her “boobs” outside her clothes for about 5 seconds. He did not say anything. In the case of B, she had been in the big shed with the appellant making a present for her step-grandmother. She took the present to the house to give to her step-grandmother and then returned to the shed. B went back to the table where she was playing. She had dropped a button, picked the button up and gone to a table in the shed when the appellant came up behind her. The appellant, while standing behind her, grabbed her shoulders. He pulled his “rude part” from his undies and rubbed it on her bottom and leg without saying anything. She protested and tried to leave but he continued to hold her. After he had let her go, he told her not to dare tell anyone or she would be in trouble with him.Pre-trial ruling – grounds 1 and 2

Evidence

Evidence Before The Court

The application was made prior to the pre-recording of evidence pursuant to s 21AK of the Evidence Act 1977 (Qld) (the “Evidence Act”) and was based on the statements of A and B made under s 93A of the Evidence Act. At the application, the appellant contended that the case was not one where the counts were justified in being joined on the same indictment under s 567(2) of the Criminal Code and that separate trials should be ordered under s 597A(1) of the Criminal Code on the basis that the evidence on the three counts was not cross-admissible. At the pre-trial application, the appellant submitted that the Pfennig v The Queen (“Pfennig”)[26] test could not be met in respect of A’s evidence in respect of B’s trial, particularly because the alleged conduct could be consistent with innocence. The appellant submitted that A’s evidence was entirely consistent with a rational view of a step-grandfather touching his step-granddaughter across the chest or a description of the child being told he was going to throw her in the pool coinciding with touching on the breast. The appellant’s counsel conceded that the same could not be said in relation to the cross-admissibility of B’s evidence in respect of A’s charges, insofar that if the evidence could be used to demonstrate a sexual interest in a pre-pubescent girl the appellant could not raise the argument that the alleged incident relating to B could be consistent with innocence on any rational view. It was, however, for the Crown to establish the admissibility of the evidence, not for the defence to establish it was inadmissible.[26](1995) 182 CLR 461. The appellant further submitted that hearing the counts together would be prejudicial and could not be countered by any direction given to the jury. The respondent did not initially identify the basis upon which it contended that the evidence was cross-admissible. As a result, at the outset of the pre-trial hearing Lynch SC DCJ required the respondent to identify the basis upon which it contended that the evidence was cross-admissible, having referred the parties to the majority decision in R v WBN (“WBN”)[27]. The respondent subsequently stated that it sought to lead the evidence of A in relation to the charges involving B and vice-versa to show the appellant had a sexual interest in or attraction towards pre-pubescent girls and that the appellant had a propensity to act on that interest when confronted with an opportunity to do so, which had been the basis upon which the appellant had thought the respondent was proceeding. That was the basis upon which the appellant had proceeded in the application.[27](2020) 5 QR 566. The respondent submitted the counts on the indictment were properly joined and that what A said occurred would render it more likely that B was truthful about what was done to her. The respondent also referred to the similarities in the conduct, albeit accepting there were differences in the offending. The similarities identified were that:(1)both of the complainant children were pre-pubescent girls;(2)the alleged offending was sexual in nature;(3)the offences are alleged to have occurred at the appellant’s property;(4)the appellant was in a position of advantage due to his relationship with the complainant children; and(5)the alleged offending occurred whilst the appellant was alone with the complainant children.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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