R v Pryor; ex parte A-G [2001] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION: R v Pryor; ex parte A-G [2001] QCA 241

PARTIES: R / v / PRYOR, George Allan / (applicant/appellant)

FILE NO/S: CA No 275 of 2000 / DC No 377 of 2000

PARTIES: R / v / PRYOR, George Allan / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)

FILE NO/S: CA No 279 of 2000 / DC No 377 of 2000

DIVISION: Court of Appeal Cairns Circuit

PROCEEDING: Appeal against Conviction and Sentence / Sentence Appeal by A-G (Qld)

ORIGINATING COURT: District Court at Townsville

DELIVERED ON: 22 June 2001

DELIVERED AT: Cairns

HEARING DATE: 19 June 2001

JUDGES: McMurdo P, Davies JA and Jones J / Judgment of the Court

ORDER: Appeal against conviction dismissed. / Appeal against sentence dismissed. / Application for leave to appeal against sentence refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – ADMISSIBILITY OF EVIDENCE – SIMILAR FACT EVIDENCE – whether evidence said to constitute similar facts was admissible / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – CONVICTION UNSAFE AND UNSATISFACTORY / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – a cumulative sentence cannot be imposed on a life sentence and the sentence was not manifestly inadequate or excessive / R v Cranston [1988] 1 QdR 159, considered / R v Griffith CA No 339 of 1998, 3 February 1999, applied / R v Mickelo [1993] 1 QdR 230, applied / R v O'Keefe [2000] 1 QdR 564, considered / R v Pfennig (1995) 182 CLR 461, considered

COUNSEL: G Lynham for Pryor / N V Weston for the Crown

SOLICITORS: Queensland Aboriginal & Torres Strait Islander Legal Services for Pryor / Director of Public Prosecutions (Queensland) for the Crown

THE COURT: The appellant was convicted in the Townsville District Court on 25 September 2000 of the offences of burglary and rape which were committed on 28 November 1985. Mr Lynham, who appears for the appellant, contends first, that the learned trial judge erred in admitting similar fact evidence and second, that the verdicts were unsafe and unsatisfactory.

The evidence other than similar fact evidence

The complainant, who was separated, was living with her two year old daughter in Slacks Creek, Brisbane on the evening of the offences. She went to bed about 10.00 pm after securing all windows and doors. As she was dozing off she felt a knife at her throat and a man told her to roll over. There were no lights on and the house was dark. Her assailant put a pillow over her head. Over the following few minutes her nightie and underpants were removed and she was raped. The assailant threatened to kill her daughter if she moved within 10 minutes. She was unable to identify the rapist.

The appellant's fingerprints of the left index finger, left middle finger and left ring finger and right ring finger were found on the outside of the complainant's main bedroom window. The appellant's fingerprints of the left index and left middle fingers were also found on the outside of the rear bedroom window occupied by the complainant's young daughter.

When giving evidence almost 15 years later the complainant had no recollection of the rapist wearing a mask but a police officer to whom she made the complaint recorded the complainant as reporting that when the pillow slipped from her head she saw that the rapist was wearing a mask.

On 16 March 1985 the appellant gave his address to a Brisbane police officer as 1 Oriole Crescent, Slacks Creek. This was only a short distance from the complainant's residence.

On 26 March 1985 the appellant gave his address to a Townsville police officer as his parent's address at 210 Kings Road, Pimlico.

The similar fact evidence

The following evidence was admitted as similar fact evidence. On 12 December 1985 Ms Smith, then aged 60, went to bed at about 9.00 pm leaving most of the windows open because it was a hot evening. Sometime after 10.00 pm she awoke to see a young man about 18 years old standing by her bed. She thought he was holding a knife in front of him with the blade facing towards her. He had "nice wavy hair which was dark and he had an olive complexion". She screamed and got out of bed and started to walk towards him. She was wearing hand splints. She kept screaming as hard as she could. Each time she screamed he told her to "Shhh". The intruder ran into the lounge room and decamped. She telephoned the police. She found her scissors on the floor at the foot of her bed. Her handbag and her mother's handbag had been opened and their contents strewn over the floor; $80 had been taken from her handbag. She also found a cushion, which had been removed from the couch in the lounge room, on the top of her bed where she would ordinarily place her head to sleep.

Ms Smith's home in Townsville was less than a half a kilometre from the Townsville address provided to police by the appellant in March.

The appellant did not know the complainant and to her knowledge he had never visited her home.

A fingerprint of the appellant's right index finger was located on the scissors found in Ms Smith's bedroom.

The appellant pleaded guilty to the offences of burglary, unlawful assault and stealing involving Ms Smith and chose to do so in front of the jury empanelled to consider the burglary and rape charges.

Was the similar fact evidence admissible?

Counsel for the appellant contends that the evidence relating to the offences involving Ms Smith does not amount to similar fact evidence and was wrongly admitted.

The test for admissibility of evidence as similar fact is set out in Pfennig v R (1995) 182 CLR 461, usefully explained by Thomas JA in R v O'Keefe [2000] 1 QdR 564, 573-574. It requires:

"…the trial judge to address two questions:

Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged? The observations of Pincus JA in Wackerow are helpful in addressing this particular question; and

If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses? This would have to be answered on the assumption of the accuracy and truth of the evidence to be led. If the judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent, then the accused should not be exposed to the possible risk of mis-trial by a jury that might give undue prejudicial weight to propensity evidence. The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury.

The result of all this is to confer a complex task upon the trial judge in ruling upon the admissibility of propensity evidence. The judge must look at the evidence as a whole….. It must be said that this involves a very broad exercise despite the anxiety of the majority (in Pfennig) to require application of a principle rather than a discretion."

The reference above to Wackerow is dealt with in O'Keefe at 570 [11], which notes that Pincus JA there concluded that the evidence "was such that it 'must have made a guilty verdict on the offences charged' one which a rational jury would much more readily reach".

Macrossan J (as he then was) in R v Cranston [1988] 1 QdR 159,162 noted that in deciding whether evidence constitutes similar fact: "An exercise of some judgment will be called for in each case.".

The respondent relies on the following similarities between the offences charged and the evidence said to constitute similar fact:

Both offences involved attacks upon single women living in households without a male presence.

The attacks occurred at night whilst both women were in bed in their own homes.

The appellant was a stranger to both women.

Entry was gained by means of breaking into both homes.

In each case a pillow or cushion was used or to be used in the attack.

In each case the intruder was armed with a sharp instrument to be used as a weapon, in one case a knife and in the other scissors, at first thought to be knife.

The offences occurred within about 13 days of each other.

Eight months earlier the appellant had lived in the vicinity of each of the women; there was no evidence of his address at the time of the offences.

The appellant's fingerprints were found on the outside of the window of the complainant's house and on the scissors used in the assault on Ms Smith.

There was no evidence of any innocent explanation for any of the appellant's fingerprints.

There were some obvious differences between the two series of offences. Fortunately Ms Smith was not raped or sexually assaulted and no property was stolen in the Slacks Creek offences. There is some evidence that the rapist may have been wearing a mask whilst there is no suggestion that the appellant in committing the offences against Ms Smith was masked. The offences subject to this appeal were committed at Slacks Creek whilst the charges relied on as similar fact evidence were committed in Townsville.

Despite these differences we are persuaded the learned trial judge was entitled to admit the evidence of the charges involving the complainant Ms Smith as similar fact evidence in the trial. The combination of the similarities between the two series of offences which we have set out in [16] support the conclusion that there is no reasonable view of the evidence of the Townsville offences other than an inference supporting the guilt of the appellant as to the Slacks Creek offences. The similar evidence of the fingerprints found at each crime scene, in the absence of any evidence of an innocent explanation, is central to reaching that conclusion.

Once that evidence is admitted as similar fact evidence, the evidence in the trial looked at together is reasonably capable of excluding all innocent hypotheses¹ and constitutes an overwhelming case against the appellant, for there is no evidence of any reasonable alternative innocent hypothesis.

This ground of appeal must fail.

Unsafe and Unsatisfactory

Mr Lynham conceded that his contention that the verdict was unsafe and unsatisfactory depended on the success of his principal ground of appeal, that the similar fact evidence was inadmissible. Having failed on that ground, it is plain from our analysis of the case that there is ample evidence to support the guilty verdict which was by no means unreasonable.

It follows that we would dismiss the appeal against conviction.

The appeal against sentence

The appellant was sentenced on each offence to concurrent terms of imprisonment, the greatest of which was 15 years for the offence of rape. .These sentences were also concurrent with a number of other lengthy terms of imprisonment he was already serving.

The appellant, the Attorney-General of Queensland contends that Pryor should have been sentenced to some cumulative period of imprisonment because the concurrency of the sentences means in effect he has not been punished for these serious offences.

Pryor has also lodged an application for leave to appeal against sentence but Mr Lynham concedes that this was largely in response to the Attorney's appeal against sentence. Mr Lynham nevertheless contends that in all the circumstances a shorter concurrent sentence than 15 years was appropriate and that the sentence imposed here was manifestly excessive. Mr Lynham's primary submission, however, is that had Pryor been sentenced for all his offending behaviour at the same time he would not have received a heavier sentence than his present sentence and that the totality principle is apposite.

Pryor has a serious and complex history of offending. His most relevant convictions are as follows. In 1983 he was convicted in the Beenleigh Children's Court of breaking and entering a dwelling house with intent. On 8 June 1989 he was convicted of burglary and rape, committed on 27 August 1988 and was sentenced to eight years imprisonment. On 10 July 2000 he was convicted of entering a dwelling house and rape committed on 18 August 1996 and sentenced to seven years and 14 years imprisonment respectively, concurrent with each other but cumulative upon the eight year sentence for rape imposed in 1989, having apparently committed the 1996 offences whilst on parole.

Pryor has appealed against his conviction on the 1996 offences; that appeal has been heard by this Court which has reserved its decision. Pryor has also lodged an application for leave to appeal against that sentence which has not yet been argued. Pryor is not legally represented on that application and it is not entirely clear whether he wishes to pursue it.

In addition to these offences the appellant was convicted after a trial in October 2000 of burglary and rape committed on 12 October 1988. Pryor was sentenced to life imprisonment in respect of each offence. He has not applied for leave to appeal against those sentences and his appeal against that conviction has now been dismissed: see R v Pryor CA No 317 of 2000, 22 June 2001.

The offences for this Court's consideration occurred when Pryor was only 18 years old and had no prior convictions for like offences but Pryor's subsequent conduct makes it abundantly clear he can not now be sentenced on that basis. Pryor's subsequent conduct reveals that he is a violent serial rapist who enjoys preying on vulnerable single women; his recidivism suggests he is a continuing danger to the community, at least at this stage. Both counsel concede that if the conviction for the 1996 burglary and rape are not overturned on appeal, then any appeal or application for leave to appeal against sentence is academic. As we have noted, that appeal has been refused and the life sentence remains in place: see R v Pryor CA No 317 of 2000, 22 June 2001. A cumulative sentence cannot be imposed on a life sentence: R v Mickelo [1993] 1 QdR 230; R v Griffiths CA No 339 of 1998, 3 February 1999. The Attorney's appeal must be dismissed.

In any case we not persuaded that the sentence imposed in this serious and unusual case was sufficiently inadequate or excessive as to require this Court's intervention. We would dismiss the appeal against sentence and refuse the application for leave to appeal against sentence.

Orders

The appeal against conviction is dismissed. The appeal against sentence is dismissed. The application for leave to appeal against sentence is refused.

Footnotes

1. O'Keefe at 573 para 27. ↩