AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 25 November 2008

R v Haines, Craig

[2008] NSWDC 259

Sexual offences
CRIMINAL LAW INDICTMENT INDECENT ASSAULT APPLICTION FOR SEVERENCE OF CHARGES MULTIPLE COMPLAINANTS ADMISSIBLE NEXUS BETWEEN CHARGES

Citation: R v Haines, Craig [2008] NSWDC 259
Court: District Court of New South Wales
Date: 25 November 2008
Judge(s): Nicholson SC DCJ

Background

The accused faced three counts of unlawful sexual conduct on a single indictment, each involving a different complainant. Two of the offences were alleged to have occurred at a house on the Toomelah Aboriginal mission, where the accused was said to have broken into separate bedrooms and indecently assaulted two cousins while they slept. The third offence was alleged to have occurred at a separate dwelling nearby, where a third woman was touched while asleep.

All three offences were said to have taken place within the same morning, between the early hours and approximately 6:15 am. All complainants were Aboriginal women. The accused was Aboriginal and understood to reside on the mission.

Defence counsel applied to sever the third charge (relating to the complainant at the nearby house) from the indictment, arguing it could not properly be tried together with the other two charges.

  • Whether the three charges were properly joined on the one indictment, given that each count related to a different complainant
  • Whether a sufficient nexus existed between the charges to make the evidence on each count admissible on the others
  • Whether there was a reasonable possibility of concoction among the complainants that would undermine the probative value of the evidence and require separate trials

Decision

The court identified several connecting features between all three charges. Each offence occurred within a concentrated geographic area on the same Aboriginal mission, within a short window of time. All three complainants were Aboriginal women and identified the accused as an uninvited intruder in their respective homes. His presence in each house remained otherwise unexplained. These shared circumstances provided an admissible nexus capable of supporting joinder on the one indictment.

A further connecting circumstance was the accused's behaviour when confronted. After being discovered in the bedrooms of the two cousins, the accused pretended to be asleep on the floor. At the third complainant's address, he responded to her questions by feigning confusion about his whereabouts, claiming not to know where he was. The court treated this pattern of response as a significant feature capable of being led as tendency or coincidence evidence.

Drawing on the principles in Hock v The Queen, the court assessed whether there was a reasonable possibility that the complainants had jointly concocted their accounts. The court concluded there was no reasonable basis to find deliberate concoction, particularly regarding the two cousins' consistent accounts of the accused pretending to be asleep. Because no reasonable alternate explanation of concoction was available, the evidence retained the probative value required for admissibility.

The application for severance was refused. The court also permitted the Crown to lead the circumstances of the accused pretending to be asleep as tendency or coincidence evidence.

Orders Made

  • Application for severance of the charge relating to Lauralee M from the indictment refused
  • Crown permitted to lead evidence of the accused pretending to be asleep as tendency or coincidence evidence

Key Takeaways

  • Charges involving different complainants may be properly joined on the one indictment where a sufficient nexus exists between them, including where the evidence on one count would be admissible on the trial of another.
  • The District Court identified multiple connecting factors capable of establishing that nexus: shared location, compressed timeframe, common characteristics of the victims, and a consistent pattern in the accused's conduct upon discovery.
  • Under the principle affirmed in Hock v The Queen, coincidence or similar fact evidence retains its probative value only where the circumstances cannot be reasonably explained by joint concoction; where concoction is a reasonable possibility, it destroys the evidentiary foundation for admissibility.
  • Refusing the severance application, the court found no reasonable possibility that the complainants had concocted their accounts, and that finding was determinative of both admissibility and joinder.
  • A consistent behavioural response by an accused when confronted, such as feigning sleep or confusion across separate incidents, can constitute admissible tendency or coincidence evidence in proceedings involving multiple complainants.

Legislation and Cases Referenced

Cases:
- Kray [1970] 1 QB 125
- De Jesus (1986) 22 A Crim R 375
- Sutton v The Queen (1984) 152 CLR 528
- Hock v The Queen (1988) 165 CLR 292

Texts:
- Butterworths Criminal Practice and Procedure NSW (Indictments, p 6323)