The Queen –v- Marshall

[2005] QDC 354

DISTRICT COURT OF QUEENSLAND

CITATION:

The Queen –v- Marshall [2005] QDC 354

 PARTIES:

The Queen

v

Shane William MARSHALL

FILE NO:

94/05

PROCEEDINGS:

Application

DELIVERED ON:

1 September 2005

DELIVERED AT:

Townsville

HEARING DATE:

1 September 2005

JUDGE:

CF Wall QC

ORDER:

Application to sever counts on the indictment dismissed.  Joinder of charges allowed.

CATCHWORDS:

CRIMINAL LAW – JOINDER OF COUNTS – similar facts – different complainants - application to sever indictment - accused charged with two counts of rape – whether sufficient similarities of time, place and nature of offences to justify joinder – application dismissed. 

COUNSEL:

Mr J. Morton for the Crown
Mrs T. Crosland for the Accused

SOLICITORS:

Queensland Director of Public Prosecutions for the Crown
Groves and Clark for the Accused

HIS HONOUR:  This is an application to sever the two counts in the indictment.  Each count alleges an instance of digital vaginal rape. 

The offences are said to have been committed in the same residence at Alva Beach.  They are said to have been committed in the same room, each involves the accused placing one or more of his fingers in the vagina of the complainant.

The first offence is alleged to have occurred some time after everyone present at the house went to bed between 10.30 and 11 p.m.  There seems to be no details as to the precise time that everyone went to bed so far as count 2 is concerned.  Nevertheless, each offence occurred at night after the complainants had gone to bed and after each had gone to sleep.

Each of the complainants was aged 15 at the time; each knew the accused; each of the complainants is a friend of the other; each of the complainants were sleeping over at this house.  The accused, I am told, "pretty much lived" at the house at the time of each offence.

Each complainant at the time was sleeping on a mattress.  On the occasion of each offence there were others also sleeping in the room.  Each complainant awoke and, so far as count 1 is concerned, the complainant felt her foot being tapped and then

says the accused put his finger in her vagina.  He whispered, "Come outside."  He made no threat to her.

So far as count 2 is concerned, the complainant felt her leg being rubbed, then felt the accused putting his finger or fingers in her vagina.  He whispered to her but in this case he made a threat.  No threat was made in count 1.

The accused was interviewed by police in respect of both complaints.  He admitted being in the room on each occasion, he admitted rubbing the foot of the first complainant; he admitted rubbing the leg of the second complainant; he denied inserting his fingers into the vagina of each.

There is no issue about identity; the accused was the only male present on both occasions.

There are some differences which were highlighted by Mrs Crosland.  At the time of count 1 various people had been drinking; at the time of count 2 there was no evidence of alcohol.  There was no threat made at the time of count 1; there was a threat made at the time of count 2.  There is a suggestion from the accused that each complainant flirted with him before the count 1 offence; that is denied by the second complainant, the first complainant is silent as to it.  There is no suggestion of similar flirtation before the second offence.

I think the similarities establish a sufficient nexus or

connection between the two offences to justify the joinder of the charges.  There are similarities as to time, place and nature of offences.  It is proposed that the evidence in relation to each offence be led as similar fact evidence on the other count.  The evidence does, in my view, possess a particular probative value or cogency such that, if accepted, it would bear no reasonable explanation other than the inculpation of the accused in the offence charged.

The probative value of the evidence of one on the other lies in its ability to support or confirm the direct evidence, supported by the admissions of the accused, of each complainant.

The material fact in issue so far as each offence is concerned is whether the accused placed his finger or fingers in the vagina of each complainant.  That involves an issue of whether the complainant in each is telling the truth in describing the offence.  There is, in my view, an objective improbability of the complainant in count 1 telling a similar lie to the account given by the complainant in count 2 and the same applies to the complainant in count 2 telling a similar lie to the complainant in count 1.

If the evidence on count 2 led on count 1 and the evidence on count 1 led on count 2 was believed by the jury there is, in my view, no reasonable view of it other than as supporting an inference that the accused is guilty of each offence.  At the end of the day that is a matter for the jury but I think that the requirements necessary for joinder have been satisfied here.

The combination of the similarities between the two offences, in my view, supports the conclusion that there is no reasonable view of the evidence of the second offence other than an inference supporting the guilt of the appellant on the first offence, and the same applies so far as the second offence is concerned.

I will allow the joinder of the charges.

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Postscript: On the 8 November 2005 in the District Court at Townsville the accused was found guilty of the offence in Count 1 (involving complainant SS) and not guilty of the offence in Count 2 (involving complainant TW).