R v S [2001] QCA 501

CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - the appellant was convicted of sexual offences against two of his step-daughters - where the appellant made incriminating admissions to each girl of his sexual activity with the other - where the trial judge refused to order separate trials

CRIMINAL LAW - SIMILAR FACT EVIDENCE - ADMISSIBILITY - SEXUAL OFFENCES - whether trial judge erred in ruling that the evidence of commission of offences against one girl was not receivable in the case involving the other girl as it did not satisfy the requirements of admission of similar facts evidence - discussion of tests in Pfennig, O'Keefe, Wackerow and Hooper in deciding whether similar facts evidence is admissible - where similar

facts evidence can be admitted notwithstanding the absence

of `striking similarity' - where the existence of dissimilarities in the conduct in question is by no means fatal to admissibility - Carne and Delgado-Guerra considered - where matter should be considered afresh in the event of a retrial

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - SEPARATE TRIALS - whether the trial judge erred in failing to sever the counts relating to the two complainants - where the result of ruling that the commission of offences against one girl was not receivable in the case involving the other meant that the only overlapping evidence was the incriminating admissions made by the appellant to each girl - discussion of authorities on the question of severance - where there is a strong leaning in favour of severance of sexual offences involving multiple complainants unless the principal evidence of each complainant is admissible in the cases involving the other complainants

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PARTICULAR GROUNDS - FRESH EVIDENCE - PARTICULAR CASES - where during cross examination the Crown Prosecutor produced letters written by the appellant to one of the complainants - where letters later struck off exhibits list - where letters not properly able to be used either as relevant evidence or on credit - where failure by trial judge to discharge the jury or give strong remedial direction resulted in a miscarriage of justice

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OPINION EVIDENCE - where the Crown called Family Services Officer to give opinion evidence as to the conduct of abused children - where this was not a subject which required an `expert' to assist a jury - where the trial judge erred in admitting the evidence

Crimes Act 1958 (Vic), s 372

Evidence Act 1977 (Qld), s 132A

De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, considered

Carne v R CA No 553 of 1996, 24 June 1997, considered

Cook v R [2000] WASCA 78; (2000) 110 A Crim R 117, considered

Hoch v R [1988] HCA 50; (1988) 165 CLR 292, considered

O'Keefe v R [2001] 1 Qd R 564, considered

Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, considered

Sutton v R [1984] HCA 5; (1984) 152 CLR 528, considered

R v Delgado-Guerra ex parte Attorney-General [2001] QCA 266; CA No 324 of 2000, 17 July 2001, considered

R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, considered

R v Hooper [1999] QCA 310; CA No 37 of 1999, 6 August 1999, considered

R v Soma [2001] QCA 263; CA No 67 of 2001, 13 July 2001, considered

Wackerow v R [1998] 1 Qd R 197, considered

Director of Public Prosecutions (Queensland) for the respondent

[1] THOMAS JA: The appellant was convicted upon 8 of 10 counts alleging sexual offences against two of his step-daughters (M and P). Five counts concerned his relationship with M and another five with P.

[2] The offences in relation to M included maintaining a sexual relationship (count 1), as to which seven separate incidents were particularised. Four of those incidents, namely indecent treatment (count 2) and three incidents of rape (counts 3, 4 and 5) were charged as separate offences on the indictment.

[3] The offences in relation to P, included one count of maintaining a sexual relationship (count 6) in relation to which the Crown particularised six incidents. Four of those (all rape) were included as separate counts on the indictment (counts 7, 8, 9 and 10).

[4] Ultimately P's evidence did not provide a sufficient basis for supporting count 9, and a nolle prosequi was entered. The jury acquitted the appellant on count 4, but convicted him of all remaining charges.

[5] Thus he has been convicted of one count of maintaining a sexual relationship with M, one count of indecent treatment of her and two counts of rape. He has been further convicted of four counts involving P namely maintaining a sexual relationship and three counts of rape.

[6] There are five grounds of appeal but there are three principal issues -

(1) Whether the counts in respect of the separate complainants should have been severed and separate trials ordered.

(2) Whether the Crown prosecutor's conduct, including his presentation of misleading inferences to the jury may have caused the trial to miscarry.

(3) Whether certain opinion evidence about the conduct of abused children ought to have been admitted.

[7] There is also an application for leave to appeal against sentence.

[8] In order to deal with these matters some understanding of the overall evidence in the case is necessary.

[9] The charges concerning M are said to have occurred between 1990 and 1999 during which she was aged between six and 15. The charges concerning P are said to have occurred between 1996 and 2000 during which P was aged between nine and 14. Throughout most of the above period (1990 to 2000) the complainants and the appellant were part of a family unit centred around the appellant and the girls' mother. The girls' natural father had left when M was about five years old and soon afterwards her mother started living with the appellant. They married in February 1994 and at the time of trial the mother and the appellant were still together. At material times the family consisted of the mother, the appellant, the mother's three children (M, P and E). Further children were born to the mother and the appellant in 1992 and 1996.

[10] The evidence was lengthy but it will not be necessary to provide more than specimen examples from the evidence of each complainant.

[11] M recalled numerous occasions of sexual interference, commencing in Cairns when she was aged about six and the family resided in a caravan. After an incident of domestic violence between the appellant and the mother, the appellant told M that when everyone went to sleep she was to go to a nearby Motel to meet him. She did so in due course and ascertained his room number from reception. She found him lying naked on the bed. He told her this was her chance to be an adult and that he had a new game to teach her. The appellant had an erection and she undressed herself as requested and lay down while the appellant rubbed the outside of her vagina with his fingers. She later dressed and went back to the caravan. The Motelier confirmed that someone using the name S had stayed at unit 12 of the Motel on 8 March 1990, 19 March 1990 and 20 April 1990.

[12] M's story progresses through regular "fingering" of her at the caravan, usually when her mother was absent and then in other places as the family moved from place to place.

[13] When one of her brothers was born in 1996 and her mother was hospitalised she slept in the appellant's bed and some nights he progressed from fingering her to rubbing his penis against her vagina. When they lived west of Maryborough he started licking her vagina. The first incident of sexual intercourse occurred in September 1996 when the family went to Warooma Dam when they were sleeping in a tent. She was next to the appellant. When her mother fell asleep the appellant "fingered her", removed her pants, rubbed his penis against her and then put it in her vagina. She did not consent and told him to stop. She found next morning that she had bled in her pants.

[14] Many incidents of rape are thereafter described. She also gave general evidence about the regularity with which various kinds of conduct continued. As her evidence unfolded a number of incidents were identified for the jury as being those upon which it could find that the necessary three or more particularised offences had been established in relation to the maintaining count. His sexual depredations upon M occurred until December 1999 when she moved away. She had submitted to the rapes because she was worried about the safety of her siblings and knew that he would eventually "win" even if she resisted.

[15] P gave some evidence supporting the counts concerning M. She testified that when the family lived at the Caravan Park, on an occasion when her mother was absent M asked her and her brothers to go away, the appellant gave P money for the shop and they then left. When they returned she heard noises made by a female from within the van, similar to noises she heard her mother make when in the bedroom with the appellant.

[16] P further recalled that while the family lived at another address (probably 1999) she saw, through a crack in the door, the appellant naked on top of M.

[17] Another significant piece of evidence from P concerning the charges relating to M arises out of an incident during which the appellant was having intercourse with P. A couple of weeks after M had left he pushed P into her mother's bedroom, locked the door, pushed her onto the bed, removed her clothes and during intercourse said to her "Your flaps are bigger than M's". This could be regarded as significant evidence of admission of his conduct in relation to M. P called him a "dirty bastard".

[18] M's evidence also contained similar potentially telling admissions of the appellant in relation to his conduct with P. She gave evidence that on more than one occasion when she resisted the appellant he complained to her "You're a dead fuck anyway so I'll go and see P. At least she wriggles".

[19] The relationship between M and P was described by M as "pretty dodgy" and she could not recall any time when P had come into the room. She had not spoken to P about these matters and said that she had not discussed the case with her.

[20] The 16 year old step-brother of the complainants, gave evidence of a statement made to him by the appellant on the telephone after M had left home and moved in with his family. He said that there were up to 10 to 15 phone calls per day and that as a result he had been asked to write a note about any calls he took. On Christmas Eve 1999 he took a call and recognised the appellant's voice. The appellant said "Tell M that I should have fucked her up the arse". The appellant sounded drunk. G wrote down the message as "I should have fucked M up the arse more than what I did". In evidence he said he was sure that the note was more correct than the recollection he initially gave in evidence.

[21] P's evidence as to the appellant's conduct towards her is that sexual abuse commenced when she was about eight, when the family lived west of Maryborough. The appellant joined her in the shower, naked. He put his hand over her mouth, turned her towards him and put two fingers in her vagina. Her mother came in and saw the appellant in the shower, called him a dirty bastard and told P to hop out and get dressed.

[22] When the family moved to another address the appellant abused her "quite a few times". The first occasion of sexual intercourse was when she was aged 10 to 12 and was home sick from school. The appellant pushed her onto the bed, removed her clothes, rubbed her chest and put his penis in her vagina. When someone arrived home he got off her, they dressed and she ran down to the dam. About a week later she was in her room doing homework when the appellant entered, pulled her clothes off, penetrated her and "busted her vagina". She bled profusely. She was then in grade 6. Again, many ensuing incidents of rape were described which need not be here repeated. One of those included the occasion during which he made the comparison between her and M's private parts which has earlier been mentioned.

[23] The appellant gave evidence denying any sexual activity with either girl and said that he received affectionate letters from both complainants during the time when he was supposedly abusing them. His wife also gave evidence denying witnessing any sexual misconduct or evidence of it.

[24] Ground 1 alleges that the learned trial judge erred in failing to sever the counts relating to M from those relating to P. It is common ground that the charges were properly joined in the one indictment under s 567(2) in that the charges form part of a series of offences of the same or similar character. The real question is whether the learned trial judge erred in refusing to order a severance under s 597A of the Code. That section confers a discretion to order separate trials if the court considers that the accused may be prejudiced or embarrassed in his defence by reason of multiple charges or that for any other reason it is desirable to direct that the person should be tried separately on different charges.

[25] Where the conduct of an accused person has been such as to involve more than one complainant, and the evidence to support the respective charges is substantially the same it is common to find the offences joined in the indictment and determined at the one trial. This is not a mere matter of convenience for the Crown: it may be oppressive to subject an accused person to multiple successive trials. The cases in which difficulty arises are those where only some of the evidence in the counts concerning one complainant is admissible in respect of the counts concerning the other complainant. In such matters questions of degree arise, and the essential task for the trial judge under s 597A is to determine whether the additional prejudice from the presentation of evidence inadmissible on some of the counts can be cured by directions; and more broadly whether a fair trial may be had.

[26] A number of decisions were referred to touching on this question including De Jesus v R[1], R v Riley[2], Cook v R[3], R v Cranston[4] and R v Himstedt[5]. These will now be reviewed. The leading case, De Jesus, holds that in sexual cases the discretion should normally be exercised to sever in the case of different complainants unless the evidence on each count is admissible in proof of the other counts. The charges against De Jesus were essentially in respect of two charges, one of raping a woman a month later and the other of raping another woman on 31 May 1985. Apparently none of the evidence admissible on one was admissible on the other, and the jury was in due course instructed that no inference could be drawn from the evidence of one in relation to the other. The following statement made by Brennan J in Sutton v R[6] was quoted with apparent approval in each separate judgment delivered, (including the dissenting reasons of Mason and Deane JJ):

"Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted".

Gibbs CJ added that in his view sexual cases were peculiarly likely to arouse prejudice against which a direction was unlikely to guard. His Honour concluded:

"Since the evidence on one count was inadmissible on the other, Sutton v R required it to be held that the two rapes should not have been joined in the one indictment".

Mason and Deane JJ (dissenting) did not consider that the refusal to order separate trials in that case gave rise to any miscarriage of justice. Brennan J agreed that sexual cases are likely to arouse prejudice and that a direction to the jury is unlikely to give sufficient protection, but considered that sexual cases should not be placed in a special category for the purpose of applying his general statement in Sutton that has been quoted above. Dawson J noted that where evidence of the commission of one offence is admissible in proof of the commission of another, there would be nothing to be gained by directing separate trials because the same evidence would be admissible in each. His Honour went on to emphasise that "as a general rule" there were some offences that ought not to be tried together if the evidence on one count was not admissible on another, and his Honour thought that sexual offences fell into that class. His Honour added:

"I prefer to express myself in a general way rather than categorically, because it is possible to conceive of instances where the high degree of prejudice which can usually be expected to arise from evidence of offences of a sexual nature does not in fact arise or may be adequately overcome by a proper direction. Where, for example, the sole evidence implicating an accused person in a number of offences of rape is the one confession, it may well be that no unfair prejudice will arise from a joint trial of those offences."

[27] In Cook, a decision of the Court of Criminal Appeal Western Australia[7], the appellant was charged with seven counts involving two female child complainants. Their evidence did not qualify as similar fact evidence, but because some of the counts were committed on the two complainants at the same time or on the one occasion, the evidence in respect of those occasions would have been admissible in each trial even if the counts have been severed. In short, even if separate trials were ordered the jury would still receive evidence showing that he was also alleged to have misconducted himself with the other girl. There were seven counts on the indictment. Counts 2 and 3 comprised incidents that occurred at the one time, namely the digital penetration of each complainant while Cook was bathing the two girls in a tub. Counts 4 and 5 also alleged offences committed on the one occasion when he got the girls to sit on his lap. The other counts related to separate incidents as to which separate evidence from each complainant was received. Evidence was also led from both complainants of other incidents of sexual misconduct involving oral, penile and digital penetration committed upon each, admitted as uncharged acts demonstrating the nature of the relationships. Anderson J concluded that even if there had been separate trials ordered in respect of the separately committed offences, the bath and the lap-sitting incidents could have been proved as relationship evidence in those counts, and that both girls could have been called to give such evidence. His Honour stated "although there were two complainants which ... will nearly always result in a severance in cases of this kind there was a definite evidentiary overlap linking the counts". The court accordingly concluded that the trial judge's refusal to order severance was correct.

[28] In R v Riley[8] the indictment contained 36 counts involving seven separate complainants. Evidence was received on all matters, but after four days the trial was confined to the last 15 counts on the indictment involving three complainants. The evidence of the respective complainants was unable to satisfy the test of admissibility in the others. Fitzgerald P referred to the difficulty that arose from the joinder of the counts and observed "ordinarily at least that should not be done with counts alleging sexual offences unless all the evidence in relation to all the alleged offences is admissible in respect of each count". The decision allowing the appeal seems to have been based primarily upon the wrongful reception of evidence and upon misdirections by the trial judge as to the use that could be made of such evidence. The few observations that appear in the judgment on the question of severance would appear to be obiter. I would in any event respectfully differ from the statement of Fitzgerald P that ordinarily "all" the evidence in relation to all alleged offences needs to be admissible in respect of each count before joinder is proper. In any event the point presently at issue is severance rather than joinder, and the language used in both De Jesus and Riley is that of "ordinarily at least" or "generally" and that exceptions are envisaged. In my view it would be unfortunate if trial judges shut their minds to the possibility of a single trial in such cases by too ready recourse to the safety of a general rule.

[29] The decision in R v Cranston[9] is also primarily concerned with the question of joinder and in particular whether a sexual offence could be said to "form part of a series of offences of the same or a similar character" with assaults and robbery upon a different complainant. Having reached the view that s 567 imposes an imprecise test, Macrossan CJ (with whom the other members of the court agreed) posed the question as to what should be done when it was doubtful whether that test had been satisfied. His Honour considered that "the courts may find that an appropriately liberal exercise of discretion to sever is called for in doubtful cases". His Honour added "it will be necessary to be vigilant to ensure that even properly joined cases are severed when the level of prejudice to the accused, involved in trying them together, intrudes sufficiently strongly". Having referred to De Jesus, his Honour concluded that the joinder had been improper, and that the counts should have been severed by the learned trial judge[10]. However in view of the fact that there had been acquittals on the sexual offences, his Honour considered that no substantial miscarriage of justice had occurred by reason of the convictions on the assaults and robbery.

[30] A more thorough review of the decisions relevant to the present question of severance was made in The Queen v Himstedt[11], (although this case did not involve sexual offences). Having reviewed De Jesus, Sutton and Hoch[12] the court stated:

"In the end, the discretion to sever or not to sever must be exercised with regard to the prejudice that may occur to the accused, and whether it is possible through directions or other conduct at the trial to avoid it.

We agree with the analysis of the later case in Cranston which leaves prejudice as the ultimate criterion upon which the discretion is exercised, and which urges a cautious approach to joinder, a liberal approach to severance in doubtful cases, and vigilance `to ensure that even properly joined cases are severed when the level of prejudice to the accused, involved in trying them together, intrudes sufficiently strongly'".

[31] Himstedt was concerned with separate counts of robbery and attempted robbery committed on the same night upon different persons. There was some continuity of activity although the members of the groups of persons involved in the commission of the respective offences were not identical. A good deal of evidence in each matter was properly admissible in the other, although most of the evidence concerning the actual commission of each offence was admissible only in respect of the count to which it related. The court did not consider that there ought to have been a severance and noted that there was no reason to think that if the evidence on one of the counts was not sufficiently persuasive the jury would have had any problem in acquitting the appellant on that count. It was not thought that the additional evidence thereby placed before the jury was such as to have raised any risk of conviction on the basis of propensity which reasonable directions could not obviate.

[32] It is worthy of note that the rule in De Jesus has been legislatively removed in Victoria[13] and the test enunciated by the High Court in Pfennig has likewise been legislatively rejected in favour of the tests suggested by the House of Lords in two decisions[14]. The above Victorian legislation is discussed in R v TJB[15] and R v Best[16] respectively. In Queensland one of the difficulties created by R v Hoch, (ie the dire consequences of the mere possibility of collusion, both evidentially and in the framing of indictments), has likewise been legislatively countered[17]. However to this point there has been no legislative alteration of the general rule in De Jesus in this State.

[33] Finally in R v Hooper[18] this court first considered the admissibility of similar facts evidence in a trial upon separate instances of indecent dealing against two young male complainants, before going to consider whether severance should have been ordered. The majority of the court considered that the evidence of each complainant was admissible in the case of the other notwithstanding arguably significant variations in the details of the particular offences. It is sometimes overlooked that such evidence may be admissible on a similar fact basis even though it fails to show a detailed pattern of "striking similarity" or "underlying unity"[19]. For the moment it is sufficient to note that in Hooper the majority considered that the evidence of the indecent dealing against each complainant was properly receivable in the case involving the other. In those circumstances their Honours readily concluded that the joinder of the charges was correct and that severance would have been unjustified. McMurdo P, in dissent, concluded that the evidence in one group of offences was not admissible in the other, and that the two sets of offences should not have been heard together.

[34] I conclude that in the present state of authority there is a strong leaning in favour of severance of sexual offences involving multiple complainants unless the principal evidence of each complainant is admissible in the cases involving the other complainants. There is however no absolute rule. The ultimate touchstone must be the prejudicial effect of evidence which would not otherwise be admissible in the trial of a particular accused, and the capacity of the court to counter such prejudice.

[35] Before applying the above principles to the present matter it is necessary to express a reservation. At trial the learned trial judge ruled that the evidence of commission of the offences against one girl was not receivable in the case involving the other girl as it did not satisfy the requirements of admission of similar facts evidence. His Honour was not satisfied that the body of evidence relating to the separate complaints satisfied the tests in Pfennig or O'Keefe[20]. In applying what his Honour referred to as the abridged test in O'Keefe[21], it is possible that his Honour may have overlooked its reference to Wackerow[22] and Pincus JA's concurring view in O'Keefe[23] that emphasises a particular part of the test:

"[w]hen a question of admission of propensity evidence arises, the trial judge should consider whether the evidence is such `that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged'".

O'Keefe of course does not say very much about the primary tests for deciding whether similar facts evidence is prima facie admissible; it deals essentially with the extent to which Pfennig may have imposed additional requirements upon the trial judge before permitting such evidence to be led. Assistance on the primary question is more readily found in the cases mentioned in paras 36 and 37 below. Whatever the basis of his Honour's evidentiary ruling, it was not challenged by the Crown during the present appeal and its propriety is not presently in issue. However that ruling underlies the attack that is now made on the refusal to sever, it may well be a matter that should be considered afresh if a retrial becomes necessary.

[36] There may well be a current over-estimation of the rigours of admissibility of similar facts evidence. In Hooper above de Jersey CJ issued a reminder that while "striking similarity", "unusual features", "underlying unity", "system" or "pattern" will often be the criterion that permits such evidence to be received, none of these is an essential prerequisite for admissibility[24]. Pfennig itself is a good example of admissibility of such evidence notwithstanding the absence of striking similarity. Evidence of the abduction of another boy in circumstances and accompanied by details very different from those of the murder with which he was charged was held admissible as tending to identify him as the person who had abducted and killed the victim mentioned in the charge. Likewise, the majority in Hooper saw sufficient similarity or distinctive approach in the conduct of an accused who indecently dealt with two boys aged 13 and a half and 14 respectively on separate occasions.

[37] In my view the commission of sexual acts upon various members of the one household, especially upon members of the same sex at comparable ages is, to say the least, a promising commencing point for an application for reception of similar facts evidence. Where it is alleged that someone has committed sexual offences against different members of the same household, where the degree of control is similar (perhaps virtually identical) the types of molestation similar, the increasingly venturesome pattern of molestation similar, it would be unsurprising that there should be a ruling that the evidence of each satisfies the necessary tests for reception of similar facts evidence. In this regard the analysis of de Jersey CJ in R v Hooper to the aggregation of features in that case is instructive. The existence of dissimilarities in the conduct in question is by no means fatal to admissibility, as is illustrated by Pfennig, Carne, Hooper and R v Delgado-Guerra ex parte Attorney-General[25].

[38] I shall now proceed on the assumption that apart from the admissions made by the appellant to the two girls the evidence admissible in the case concerning one complainant was not admissible in that of the other. It follows that the only overlapping evidence that could be called if the counts were severed would be the incriminating admissions made by the appellant to the respective girls of his sexual activity with the other. In ruling that the counts should not be severed his Honour noted that:

"The jury on a trial of the counts concerning M, or on a trial on the count concerning the complainant P, will have placed before it evidence by the other complainant inculpating the accused which will necessarily involve the disclosure of the offences on the other child complainant".

"The nature of the inter-relationships within the evidence and of the interdependence of parts of the evidence of the case, I think justifies the trial of all the counts. In that way the jury will have placed before it the full circumstances and be in the best position to reach just and consistent verdicts on all of the counts. The jury will have to be given appropriate warnings and that will be done".

[39] The admissions made to the respective girls are arresting and persuasive. There is no doubt that the circumstances in which they were made (including his contemporaneous misconduct) should go before the jury in such matters even on separate trials. Quite similar situations were canvassed in R v Hasler ex parte Attorney-General[26]. The Crown correctly submits that a jury on a trial of counts 1 to 5 alone (or 6 to 10 alone) would therefore become aware that the appellant also had a sexual relationship with the other child. This being so, the Crown submits that the fairness of any trial would come back to the efficacy of the directions of the judge against misuse of propensity evidence.

[40] However the evidence of the admissions would bring into reckoning only one sexual act with P, and a few sexual acts (accompanied by such admissions) with M. Prejudicial though this may be, it falls well short of the prejudice involved in the whole story of either girl. The balance of the evidence in each group of charges is substantial, and so, it might be thought, would be the additional potential prejudice. The assumption of course is that such evidence was not admissible in relation to counts involving the other complainant.

[41] It therefore seems to me that the present case in favour of severance is far stronger than that in Cook or in Himstedt which are the only relevant examples offered where a refusal to sever has been upheld since De Jesus. Whilst I have some sympathy with the learned trial judge's ruling in this matter and whilst I think it lies close to the boundary, consistently with the strong general rule favoured in De Jesus, Riley and Cranston in sexual cases, unless the substantial evidence of the commission of the offences against one complainant was admissible in the cases involving the other, separate trials should have been ordered. The convictions must therefore be set aside.

[42] I leave open the question as to how the Crown may proceed upon any retrial or retrials. If upon analysis it is considered that the evidence of commission of one group of offences is admissible as supporting the inference that the appellant is guilty of the other offences, that is to say if it passes the tests currently applicable to the reception of similar facts evidence, there would be no problem about joinder. The case could properly go to the jury on all remaining eight counts. The true key to a combined trial in cases like the present is a ruling that the evidence in each is admissible as similar facts evidence. In "same family" cases the key might not be as difficult to turn as has sometimes been thought.

[43] As there must be a re-trial, determination of the remaining points is not strictly necessary. However something should be said in order to avoid similar problems again arising.

Grounds 2 and 3 - Tendering of letters by Crown prosecutor

[44] The appellant gave evidence. In the course of cross-examining him the Crown prosecutor produced some letters he had written to M. The Crown prosecutor proceeded to make suggestions to him such as "this is a letter to a lover", "that letter has desperation ringing off the pages" and made various other comments of a similar kind. Such cross-examination continued for a substantial time. A number of letters were "tendered". Initially his Honour seems to have assumed that the letters had probative effect going beyond issues of credit. Subsequently upon closer analysis it seems to have been realised that none of the letters could properly bear such interpretations as the Crown prosecutor had seen fit to place upon them. No attempt to support such a view of the letters was made upon the appeal. The letters were later deleted from the exhibits list and retained as exhibits for identification. Only a perfunctory statement was subsequently made to the jury about the matter and no attempt was made to assure the jury that the Crown prosecutor's comments had been quite unfounded. It would be unlikely to have dispelled the impression that the jury was likely to have had from hearing the Crown prosecutor's interpretation of letters which in due course they were not allowed to see. Indeed, prior to its retirement the jury made a specific request to see the letters, but were then told that the letters were not tendered as "full exhibits". In summing-up the jury were told that the use of the letters by the Crown prosecutor was "to attack the credit of the witness" and that he did not endeavour to use them beyond that.

[45] I cannot see how the letters could have been tendered on credit, and no explanation was offered to the jury how they could be so used. There was an artificially manufactured side-issue introduced by the Crown prosecutor in an attempt to make a letter relevant to such a matter "on credit" but I consider that the attempt failed. The letters would seem either to have been admissible as original evidence of the appellant's conduct and attitude towards M, in which case they might be quite telling evidence, or not admissible at all. However if they truly contained relationship evidence, the letters could and should have been tendered as part of the Crown case, which would in the ordinary course have been done when M was giving her evidence. It would follow that even if the letters had been admissible on such a basis, there would have been an unwarranted splitting of the Crown case[27]. As I see it, the letters were not properly able to be used either as relevant evidence or on credit.

[46] His Honour refused an application by defence counsel to discharge the jury following this incident. It is sufficient to say that the conduct here described was calculated to damage the defence and capable of doing so to a material extent[28]. The harm was not sufficiently corrected. I consider that grounds 2 and 3 have been made out.

[47] The Crown called a witness, Ms Cook, who was a Family Services officer. She had in February 2000 interviewed P who at that stage denied that sexual abuse was taking place. She also gave some marginally relevant evidence about the family circumstances of the complainants. The Crown prosecutor then referred to some letters that had been written by M to the appellant, which had been tendered as exhibits. He asked the following question:

"Now, it's been suggested that the writing of a letter like that is incompatible with the girl also being sexually abused by the person to whom she's writing that letter. Can you comment on that?"

After objection and a voir dire his Honour ruled that the witness was qualified to give general evidence about the behaviour of abused children towards their abusers and that that could be done "after qualifying her". His Honour also considered it within Ms Cook's expertise to comment on the parenting skills of the girls' mother.

[48] The evidence of Ms Cook, foreshadowed on voir dire, was to the effect that it is quite common for children to want the abuse to stop, that they love the alleged offender, and that the greatest fear of a lot of those children was to be removed from the family situation. The evidence that she gave the jury included the following -

"the majority of the children, especially under the age of 10, where they don't realise what is actually happening; the rights of wrongs, they love that parent dearly and they just want the abuse to stop. They don't like what is happening, even though they may not understand the depths of what's happening to them and they want that parent there, they just want the abuse to stop".

[49] The "qualification evidence" that she gave was of 17 years experience working with families where there has been sexual abuse including 12 years with the Bundaberg area office as an intake and initial assessment officer. She had been sent to numerous training courses, had read some literature on child abuse, and she lectured at the "University Campus here" (Bundaberg) in the areas of child protection work with first year students.

[50] The examination of the witness then proceeded at some length beyond the evidence stated above. It elicited the fears that children often have, and included statements such as that research shows that 85 per cent of women with bipolar personality disorder have actually been sexually abused as children.

[51] I do not consider that such evidence should have been permitted. It was not shown that the propensity of abused children to manifest affection for the abusive parent is a recognised body of learning, or that it was beyond the knowledge and human experience of jury members. I do not think that this is a subject where an expert can usefully be brought to court to assist a jury in a case of the present kind[29]. The gratuitous evidence that 85 per cent of female manic depressives have been sexually abused as children was probably not particularly damaging, but it was excrescence in a criminal trial. The evidence seems to have been led to engender sympathy for the complainants[30] and to encourage conviction upon statistical data concerning general societal problems.

[53] It is enough to say that the Crown case is quite a strong one and that there is no merit in this ground.

[54] The errors identified under grounds 2, 3 and 4, considered together would be sufficient to require a re-trial on all counts, independently of ground 1.

[55] Although I have ruled that ground 1 is made out and that the learned trial judge's refusal to sever the counts on the indictment was erroneous, that ruling is based upon a premise that might be falsified. For that reason I am not prepared to direct a severance, and consider that it remains within the discretion of the Crown to elect in what manner to proceed in relation to the present indictment.

[56] The application for leave to appeal against sentence is now unnecessary and I do not find it necessary to deal with the interesting question which is there raised.

(1) The appeal is allowed and the convictions on counts 1, 2, 3, 5, 6, 7, 8 and 10 are set aside with a direction for re-trial.

(2) The application for leave to appeal against sentence is dismissed.

[57] AMBROSE J: I agree with the reasons of Thomas JA in this matter and with the orders he proposes.

[58] I also have reservations concerning the inadmissibility of evidence as to the appellant's sexual activity with each daughter on the charges brought against the other daughter. Thomas JA has dealt at some length with the authorities relating to the admissibility of propensity evidence in cases of this kind. It is unnecessary for me to embark upon a similar analysis. It suffices to say that the admissibility of propensity evidence in this case should be determined having regard to the decision of this Court in O'Keefe [1999] QCA 50; [2000] 1 Qd R 564. Although the admissibility of propensity evidence in this case was raised by this Court, it was not a matter that was argued by either counsel.

[59] I agree however, with Thomas JA that it is a matter that might be given further consideration in the light of O'Keefe.

[60] CULLINANE J: I agree with the reasons for judgment of Thomas JA and the orders he proposes.

[1] [1986] HCA 65; (1986) 68 ALR 1.

[3] [2000] WASCA 78; (2000) 110 A Crim R 117.

[4] [1988] 1 Qd R 159.

[6] [1984] HCA 5; (1984) 152 CLR 528, 541-542.

[12] [1988] HCA 50; (1988) 165 CLR 292.

[13] The Crimes (Amendment) Act 1997 amending s 372 of the Crimes Act 1958.

[14] DPP v P [1991] 2 AC 447 and R v H [1995] 2 AC 596.

[16] [1998] 4 VR 603.

[17] See Evidence Act 1977 s 132A, inserted by Act No 3 of 1997; see also Criminal Code s 597A(1AA) inserted by Act No 3 of 1997.

[18] [1999] QCA 310.

[19] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 488.

[20] [2001] 1 Qd R 564.

[22] [1998] 1 Qd R 197, 204.

[24] Hooper above at para 10; Carne CA No 553 of 1996, 24 June 1997.

[25] [2001] QCA 266 at paras 21 to 22.

[26] [1987] 1 Qd R 239, 241, 243, 248, 254-255; cf R v Pettigrew (yet to be delivered) paras [26] et seq, where an admission of killing included statements of intention to kill two other persons "as well".

[27] See R v Soma [2001] QCA 263.

[28] R v M [1991] 2 Qd R 68.

[29] Cf R v F (1995) 83 A Crim R 502, 508-509.

[30] Cf R v M [1991] 2 Qd R 68.