State of Tasmania v P

[2005] TASSC 32

[2005] TASSC 32

CITATION:              State of Tasmania v P [2005] TASSC 32

PARTIES:  STATE OF TASMANIA
  v
  P

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Criminal
FILE NO/S:  50/2004
DELIVERED ON:  6 April 2005
DELIVERED AT:  Burnie
HEARING DATE:  5, 6 April 2005
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Information, indictment or presentment - Joinder - Of counts - By statute - Same facts or series of offences of same or similar character - Prejudice to the accused - Severance.

Tasmania v Farmer [2004] TASSC 104, referred to.
Aust Dig Criminal Law [722]

REPRESENTATION:

Counsel:
           Prosecution:  M A Stoddart
           Accused:  G A Richardson
Solicitors:
           Prosecution:  Director of Public Prosecutions
           Accused:  G A Richardson

Judgment  Number:  [2005] TASSC 32
Number of paragraphs:  17

Serial No 32/2005
File No 50/2004

STATE OF TASMANIA v P

RULING DURING TRIAL  SLICER J

6 April 2005

1                   The indictment as originally framed comprised five counts alleging ill-treatment of a child contrary to the Criminal Code, s178. The crimes were said to have been committed against children of the accused and to have occurred between January 1968 and December 2002. In February 2005, the prosecution sought to amend the indictment by adding three counts alleging maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Code, s125A. The allegations related to the children of the accused who were also complainants in the original indictment. During the course of the hearing, Crown counsel undertook to, and in fact, filed a nolle prosequi in relation to the counts alleging crimes against s125A.  Concurrently it sought to amend the particulars stated in some of the remaining counts alleging ill-treatment by adding claims of sexual misconduct or impropriety.  The learned Chief Justice delivered oral reasons for judgment in relation to the various applications and amendments on 8 and 10 February 2005.  Details of the formal orders made by the learned Chief Justice were:

(1)Count 1, a directed entry of not guilty made pursuant to the Code, s350(1)(ab).

(2)Count 6, a directed entry of not guilty made pursuant to the Code, s350(1)(ab).

(3)In relation to count 2, namely ill-treatment, he permitted the amendment of the indictment by the addition of the following particulars:

(h)     grabbing her breasts in his hand;

(i)    having sexual intercourse with her.

(4)On 8 February, following argument, he ruled that particular (i) stated in count 2, be excluded from the trial.

(5)He permitted the amendment to count 4 by adding the particulars:

(j)    touching her breasts and vagina with his hand;

(k)     penetrating her vagina with his finger.

(6)On 10 February 2005, he permitted the amendment to count 7 by the addition of particulars:

(i)    fondling her breasts and vagina with his hands;

(j)    penetrating her vagina with his finger.

2                   On 14 February 2005, for reasons unconnected with his rulings and these proceedings, he discharged the jury in respect of counts 2, 4, 5, 7 and 8.

3 On 31 March 2005, a fresh indictment was filed comprising eight counts. Five of those counts alleged the crime of ill-treating a child contrary to the Code, s178 as against four of the children of the accused. Those crimes were alleged to have been committed between January 1968 and September 2002. In essence, they repeated the allegations of physical misconduct as alleged in the original indictment. In addition, the indictment alleged three acts of assault against three of the children named in the other counts specifying particular acts of assault said to have occurred in December 1980 and September 2002.

4                   Here the fresh indictment replicates some of the allegations made in the amended indictment comprising additional counts, but leaving intact the counts as amended by the learned Chief Justice.  In addition, his Honour gave a direction that evidence pertaining to an act of sexual intercourse not be led at trial.  No such restriction was placed on the remaining amended particulars.  The defence contends that notwithstanding the amendments made and the directions given, this Court has, by reason of a plea of autre fois aquit entered here, a discretion unfettered by the ruling, to consider the matter afresh.  The prosecution relies upon the Code, s361A, that the determination directions already made have the same status as given on this trial.  It is not necessary for the purpose of this ruling to determine the competing arguments except to observe that the effect of the amendment, as an order, might not permit further amendment simply by deletion; otherwise the status quo remains.  The prosecution seeks no additional amendment. 

5                   However there remain other avenues for consideration which had not been argued before the learned Chief Justice.  The first is a motion to quash the indictment in accordance with the Code, s352, or if such not be granted, to allow the prosecution to continue, subject to further amendment to the particulars.  The second relates to the status of the particulars in that they raise allegations of a sexual nature which were not the subject of the original indictment or which have the same characteristics as allegations of physical abuse.  The particulars added to the indictment are:

(1)  Count 1, particular (h), grabbing her breasts in his hand.

(2)  Count 2, particular (j), touching her breasts and body with his hand, particular (k), cupping her breasts with his hand.

(3)  Count 5, particular (d), trying to force himself into her bed at night when the mother was away.

(4)  Count 7, particular (h), fondling her breasts and vagina with his hand; and particular (i), penetrating her vagina with his fingers.

6 The prosecution accepts that those particulars originally formed part of the allegations of maintaining a sexual relationship. They were then, and remain, allegations of a sexual nature. Different evidentiary and substantive issues arise as between matters of a sexual nature and those which lack those characteristics. Issues traditionally encompassed by the term "hostility", the making of complaint, deemed inability to consent and the age differentials are different approaches in the dealing with, and assessment of, sexual and non-sexual crimes. It was, of course, possible for the prosecution to prefer separate and identified counts alleging particular acts of sexual misconduct. Indeed, they have done so here in relation to separate counts of physical assault, contrary to the Code, s184. However, they have chosen not to so do in relation to the matters, sexual in nature. The result is that the s178 prosecution has been enlarged by the addition of claimed acts of sexual misconduct. Section 178 relevantly provides:

"178 ¾ (1)   Any person over the age of 14 years who, having the custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering or injury to health, is guilty of a crime.

Charge: Ill-treating a child.

(2)    In any proceedings under this section, the spouse of the accused shall be a competent, but not a compellable, witness."

7 The compellability or otherwise of a spouse is specifically provided for by s178, but differs from crimes involving sexual misconduct. Section 178 is set out in the Code under ChXVIII entitled "Crimes Endangering Life or Health". It follows generally the scheme adopted by the Queensland Code. The section restricts the crime to one committed against a person under the age of 14 and applies to a person said to have committed the crime to one over the age of 14 years. It requires wilful ill-treatment, neglect, abandonment or the causing of harm such as to be likely to cause unnecessary suffering or injury to health.

8 Section 178 represents a compilation of statute and common law. The word "wilful" qualifies all four nouns, namely ill-treatment, neglect, abandonment and exposure (R v Sheppard [1981] AC 394), although the English equivalent includes an act of assault. Its absence in the Tasmanian legislation is significant. The crime of assault is separately provided for and in this case is reflected in the indictment by the additional counts. In the English legislation, an assault, for it to come within the section, must be more than a mere common assault (R v Hatton [1925] 2 KB 322).

9                   The ingredients of the crime differ from those provided for by the Code, ss125, 125A and 127A.  One of the crimes encompassed by the particulars stated in count 6 is that of aggravated sexual assault.  The gravamen of the indictment is that of physical abuse and ill-treatment.  Particulars ought not be used to encompass a specific sexual crime otherwise provided for by the Code.  Particulars provide the manner of commission and the ingredients and do not themselves define it.  Complexities of, and problems associated with, trials involving sexual crimes committed against children have been the subject of observations of the High Court in cases such as Hoch v R (1988) 165 CLR 292 and Pfennig v R (1995) 182 CLR 461.

10                 Problems involved with the reception of similar fact evidence and the trial of multiple crimes over a long period, of their very nature raise a question of prejudice (see generally Papakosmas v R (1999) 196 CLR 297, but also see Tasmania v Farmer [2004] TASSC 104). The test is the existence of unfair or undue prejudice. Here the indictment as framed alleges physical misconduct over some 30 years and involves a number of complainants. The admixture of sexual and non-sexual misconduct through the particulars, rather than the specific allegation contained in the statement of crime, will add to the prejudice already existing by the nature of the crimes and the evidentiary components.

11 It is not necessary for the purpose of this ruling to conclusively decide whether allegations of a sexual nature can ever be the subject of a s178 prosecution (see Re P (an infant) (1986) 10 Fam LR 999) and might require further detailed consideration. Here, in the exercise of my discretion, I would not permit the indictment to contain the allegations of a sexual nature. However, in deference to the ruling of the learned Chief Justice, I consider that the s178 issue was not argued before him and was not the subject of a ruling. Given my general approach to the implications raised by s178, I feel able to exercise my discretion in a manner different to that which he was asked to consider.

12                 Accordingly, the following particulars may not go to the jury:

Count 1 (h);

Count 2 (j) and (k);

Count 5 (d);

Count 6 (h) and (i).

It follows from that that evidence pertaining to those particulars cannot be led before the jury.

13                 The defence seeks:

(1)      Severance of counts 2 – 9 from the trial already commenced on count 1.

(2)In the event of severance, a ruling that evidence of the remaining complainant is not permitted to be given at trial.

(3)The quashing of counts 2, 4, 5, 7 and 8 on the grounds of duplicity and/or as being contrary to statute, namely the Criminal Code, s178.

14                 Given the enactment of the Evidence Act 2001, the issues of severance and permitted use of evidence are linked and circular. In many cases where severance is ordered, much of the evidence which could be led on a joint trial could have been led on the trial of one. That has been the effect of the enactment of Parliament and many cases have been determined on the basis that Parliament intended to accommodate the difficulties experienced, especially by children, in fixing a date of a claimed occurrence. Here the application commences by way of one for severance. I follow, in general principle, the statements made in R v Farmer (supra) and repeat them here.  I am prepared to permit the indictment to proceed on one trial and refuse the application for severance.  That decision does not depend on direct consideration of the form of the notice given in accordance with the Evidence Act, s99, and the Evidence Regulations 2002, reg5. In the circumstances of this case, the matters which permit the conduct of a joint trial in accordance with the Code, s311, on the respective indictments are:

(1)Each complainant was a child of the accused who was under the age of 14.

(2)Each was in the case proffered by the State, the subject of violence or ill-treatment at the hands of a parent.

(3)The accused was a parent and/or a person responsible for the care of that child.

(4)The events occurred within the same domestic surrounds, namely the home, property or vehicle of the family.

(5)The forms of conduct had similar characteristics.

(6)The events occurred at times which corresponded to the age of each child at the time of the claimed occurrence.

(7)The same legal ingredients necessary for proof of the requirements stated in s178 are present in each case.

(8)The events encompassed by the indictments alleging conduct contrary to s184 are similar in nature and evidence to those comprised in the s178 counts.

15                 Insofar as the current issue of admissibility of evidence arises, I would, even had severance been ordered, receive much of the similar fact, coincidence or propensity evidence of each of the children on the trial of one.  The statements of principle are as stated in Farmer (supra) and the factors of similarity are the same as there stated in the severance ruling.  There might have been some isolated passages which might have required exclusion and such still might be necessary, either during trial or be the subject of specific directions to the jury.

16                 This is a retrial and much of the evidence has already been identified and is known to the defence.  The notice, although wide in its nature, is sufficient in this case, given that it identifies the passages of evidence which will be given by each witness (see R v AB [2001] NSWCCA 496).

17 In relation to the specific points raised concerning the timeframe of the indictment alleging misconduct contrary to s178, the amendments will be allowed. In relation to count 8, the indictment alleges one transaction and in terms of modern pleadings, ought not be regarded as duplicitous. Count 4 differs in that it alleges two transactions or series of events broken in time. It will be quashed in part by the deletion of the words "and kicking her with steel capped boots". The allegation of depravation of liberty will be confined to the first claimed misconduct. The preferment of an additional count will be considered if an application be made.