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R v MCNeish  QCA 191
Separate Trials and propensity evidence
By Calvin Gnech, Legal Director of Gnech and Associates.
17 September 2019
In R v McNeish  QCA 191 the Queensland Court of Appeal were divided in determining if Mr McNeish was to be successful in an appeal against conviction for 22 counts of alleged sexual offending against three young sisters. The question in the appeal was whether there should have been a separate trial for the counts involving complainant E, separately from the counts involving the complaints by her sisters, L and M. This question required consideration of the rules of admissibility of propensity/similar fact evidence which was cross lead by the prosecution at trial against Mr McNeish.
His Honours Sofronoff P and Henry J dismissed the appeal whilst His Honour McMurdo JA dissented in allowing the appeal, setting aside the convictions and ordering Mr McNeish to be re-tried on the counts on the complaint of E, and, in a separate trial, re-tried on the other counts on this indictment.
Prior to trial Mr McNeish’s legal team made application for a separate trial in regard to the indictment as it related to complainant E.
Durward SC DCJ, refused the application to sever the indictment. His Honour concluded there were sufficient similarities between the complaints by the three sisters to provide the evidence of one complainant such a probative force that it should be admitted as similar fact evidence on the counts related to the other complainants.
His Honour further concluded that, despite the offending alleged by E not being as “gross as that alleged against L and M”, the similarities in the offending justified the cross-admissibility of the evidence. His Honour held that the similarities were that the three sets of offending happened while the appellant lived next door to the complainants, the complainants were sisters of a similar age and all three were pre-pubescent. They were all easily accessible to the Mr McNeish and under a degree of control by him as part of a “parental environment” of which he was a part. In relation to each of the children, at least one of them was in the room where the offending took place against another, or in the same house or nearby. There was also a congruence of time and place and a similarity in the nature of the offending.
His Honours Sofronoff P and Henry J, in dismissing the appeal, adopted this passage from Durward SC DCJ decision.
His Honour, McMurdo JA, in descent, relied upon the common law, as stated in Hock v The Queen1and confirmed in Pfenning v The Queen,2 applicable when determining the admissibility of similar fact evidence in Queensland. His Honour referred to the common law rule as stated in Cross on Evidence Australian Edition at :
“The prosecution may not adduce evidence of the character or of the misconduct of the accused on other occasions (including the possession of discreditable material) if that evidence shows that the accused had a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause.”
His Honour, when discussing the common law rule, referred to the comments of Gibbs CJ in Perry v the Queen3 where he stated “the common law rule is one which, subject to certain exceptions, requires the exclusion of evidence, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the& accused.
His Honour concluded there were similarities between the respective accounts, but the dissimilarities were also relevant to this assessment. His Honour concluded further, the differences between E’s account and the accounts of L and M were such that it could not be concluded that, if E was telling the truth, so must L and M have been doing so. E’s evidence lacked the necessary probative force in the proof of the other counts, as did the evidence of L and M in the proof of the three counts involving E. His Honour concluded the evidence was not cross admissible.
1 (1988) 165 CLR 292 at 294;  HCA 50. 2 (1995) 182 CLR 461;  HCA 7. See R v Bauer (2018) 92 ALJR 846 at 861-2 ;  HCA 40 at . 3 (1982) 150 CLR 580 at 585;  HCA 75.