MAN WHO WAS CONVICTED OF 11 COUNTS OF SEXUAL OFFENCES AGAINST 7 CHILDREN UNDER 16, INCLUDING HIS DAUGHTER, NIECE AND DAUGHTER OF HIS DE FACTO PARTNER SUCCESSFULLY SEEKS SEPARATE TRIALS

R v Kellett

[2020] QCA 203

This is an appeal against 11 counts of sexual offences filed by 7 complainant children under 16, three of whom were appellant’s daughter, niece and daughter of his de facto partner. Appellant seeks separate trials for each of the complainants on the ground that what was alleged by one complainant was not cross admissible to prove the allegations by another.

Facts: 

• The counts alleged various instances of sexual offending by the appellant at the appellant's family home located on a farm, which also was one of the few houses in the area to have a pool. The complainants were aged between 10 and 16. Three of the complainants had a family relationship to the appellant; J being the appellant's daughter, KD his niece and NF the daughter of his de facto partner. Of the other complainants, GC, JC and AW were friends of the appellant's daughter J, while KW became a friend of the appellant's son, M, as a result of her mother working for the appellant and KW later married M.
• Complainant KD (count 1): D gave evidence of an incident in 1993, when she was aged 15 and was babysitting the appellant's children at the farmhouse. he heard the appellant rummaging in the freezer and getting some ice. He came into the alcove and sat on her bed. He then lifted her T-shirt nightie and placed ice on her chest, rubbing it on her breasts and nipples saying, "You look hot" in a hushed voice. She froze and then rolled away from him and left the room.
• Complainant J (counts 2 and 7): J gave evidence of an incident in March 2004 when she was 13 years old. he returned home after attending a swimming carnival and mentioned to her parents about how sunburnt she was. The appellant told her to go and lie down in the air conditioning and he would put some aloe vera on her back. With each stroke, he was moving his hands further towards the side and started to cup her breasts. (count 2) J gave evidence of another incident on Christmas Day in 2005 when she was 15 years old. When she was at the pool gate, where the appellant was standing, he remarked that she had her new bikini on and “very quickly” put his finger in her cleavage “inside [the] singlet and ... pulled the singlet around both [her] boobs, so it was underneath [her] boobs, lifting them up (count 7).
• Complainant GC (counts 3, 4 and 6): GC gave evidence of an incident in 2004, when she was 12 or 13 years old, and was visiting for a sleepover and dinner was being prepared. Appellant was sitting in a chair at the dining table and grabbed her to sit her on his lap. However, he also brushed his hand against her breast a number of times (count 3). GC also gave evidence of an incident that occurred around Christmas 2004, when she was 13 years old. he was playing in the pool with J when the appellant grabbed her, putting his right hand between her legs, cupping the outside of her vagina and his left hand being beneath her breast (count 4). GC also gave evidence in respect of an incident in September or October 2005 when she was 13 years old and had had a sleepover with J. Appellant told her to take off her pyjamas so he could massage her. She said, "It went from my feet to my calves to my thighs and then my inner thigh, touching the outside of my vagina, and then went to my bottom, m y lower back, up the sides and the side of my breast“ (count 6).
• Complainant KW (counts 5 and 10): KW gave evidence of an incident that occurred at the appellant's house in early 2005 when she was 12 years old and was visiting the appellant's son, M. She was sitting on the steps of the pool when the appellant came over and sat beside her. The appellant put his right arm over her shoulder and then started rubbing her arm and then the top of her breast and then moved his arm down her leg and eventually rubbed her vagina on the outside of her board shorts with his fingers several times (count 5). KW gave evidence of a further incident in February 2010 when she was 17 years old. The appellant asked her to give him a backrub, which she hesitatingly agreed to, accompanying him to his office. She said, “while I was rubbing his back and he was facing the other way, he had reached up behind his shoulders and had grabbed both of my breasts, and then I had jumped back (count 10).
• Complainant NF (count 11): NF and her brothers moved into the farmhouse in 2012 with their mother when the appellant commenced a de facto relationship with their mother. Appellant started talking about her sending nude pictures of herself and that she should not do that. She responded that she was not stupid enough to do that. The appellant then moved his head slowly towards her in an attempt to kiss her (count 11).

Issue: Did the trial judge err in trying the charges together?

Law:

In Queensland, it is the common law which is applied to determine the admissibility of similar fact evidence. The common law of admissibility is that propounded in Hoch v The Queen:

“Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings, evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question … The similar fact evidence is then admissible as evidence relevant to that issue.

Where an accused person disputes the happenings which are said to bear a sufficient similarity to each other … the better view would seem to be that it is relevant to prove the commission of the disputed acts. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.”

The majority of the High Court said in Hughes v The Queen:

 “[D]epending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value, notwithstanding the absence of similarity in the acts which evidence it.”

Analysis:

• The trial judge gave the following directions to the jury: “You will recall that the prosecution said that the similarities that they rely upon include that the girls, at the time that they say the offending occurred, were all of similar ages, they were all females, all the offending occurred within the defendant’s home or in proximity of the defendant’s home, such as the pool, and that they all were in a position where the defendant was either actually or ostensibly in a position of trust. From that, the prosecution argues that the facts proved to you are so similar that when judged by common sense and experience, they must be true, and that you can use the evidence of the complainants in combination, one with the other.
• According to those directions, the value of the evidence was "in the improbability of witnesses giving accounts of happenings having [such a] degree of similarity unless the happenings occurred." And the evidence was not to be used by the jury upon the basis that it proved a certain tendency of the appellant, from which it was to be inferred that he did the things with which he was charged.
• That was not the way in which the jury were directed to consider the similar fact evidence in Hughes v The Queen.
• The difficulty in agreeing with the trial judge's conclusion on this question can be illustrated, most starkly, by reference to counts 8 and 11. Count 8 involved the digital rape of a girl while she was asleep, having been drinking. Count 11 was an attempt by the appellant about nine years later to kiss another complainant, which she was able to avoid by putting a hand on him and pushing him away. The two accounts did not have the requisite degree of similarity, such that the jury can make a conclusion that absent collusion between the complainants, they could not have been given unless they were true.
• The same may be said of each other count, in comparison with count 8.
• On each count, there is a risk that the jury may have convicted the appellant by using evidence which was wrongly admitted into evidence on that count.

Conclusion:

The evidence of each count was not admissible in the proof of every other count, and separate trials should have been ordered. The appeal should be allowed and all of the convictions should be quashed. A re-trial should be ordered on all counts.