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Serial rapist’s prior convictions held to be admissible

The Queensland Court of Appeal has upheld the convictions of a rapist whose prior rape convictions were admitted into evidence at his trial.

jail

The facts

Mark Little had pleaded guilty to raping women on 2 November 1994, 12 November 1998 and 10 February 1999.

The complainant was a sex worker who was in a relationship with Little. On the morning of 19 November 2015 their relationship ended as a result of an exchange of acrimonious text messages between them.

According to complainant’s evidence at trial, that evening a man in a balaclava, mirrored sunglasses, and black clothing knocked on her door before bursting in her hotel room, throwing her across the room, threatening her with a knife and tying her up. The man then directed her to fellate him to ejaculation, and she did so before he penetrated her vagina and anus.

The complainant’s evidence at trial was that during the sexual acts it became apparent to the complainant that the man was Little.  The man then told the complainant she was a junkie, and asked where her drugs were (she replied she didn’t have any) before he told her he had her Medicare card, and that she was not to tell anyone or he would kill her. The man then told her not to move for 10 minutes and left.

At a pre-trial hearing, Harrison DCJ determined that Little’s previous rape convictions were admissible because they were relevant to identifying him as the man in the balaclava and to his state of mind as to the issue of consent.

After a 4 day trial, Little was convicted by a jury of three counts of rape (counts 2-4) but acquitted of stealing (count 1).

Little appealed the jury’s convictions on the grounds that the jury’s verdicts were inconsistent, and that the evidence of his prior sexual offending should not have been admitted.

Relevant law

Section 668E of the Criminal Code (QLD) provides that:

“The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

(1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

In the High Court case of Osland v The Queen (1998) 197 CLR 316, McHugh J held that:

“When an appellate court sets aside a jury’s verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused.”

In the judgment of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Phillips v The Queen (2006) 225 CLR 303, it was said that:

“The ‘admission of similar fact evidence is exceptional and requires a strong degree of probative force’. It must have ‘a really material bearing on the issues to be decided’. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’ The criterion of admissibility for similar fact evidence is ‘the strength of its probative force’. It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence. The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused’. Admissible similar fact evidence must have ‘some specific connection with or relation to the issues for decision in the subject case.’

As explained in Pfennig v The Queen: ‘[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.’”

Court of Appeal decision

Fraser JA (with whom the other Justices agreed) noted in respect of the reasonableness of the jury’s verdicts that “although the acquittal on count 1 seems surprising in the context of the convictions on the other counts, this is not a case where there is an inconsistency between verdicts which “rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice””, as there was no evidence the complainant had conducted a search in her hotel room and her mobile phones were never found.

Fraser JA rejected Little’s arguments that the previous sexual offences were distinctly different to the rape charges in this case. Rather, the prior convictions and the rape charges at trial revealed “a striking pattern of offending”, due to a number of common features, including the victims being women, the victims being the only adults in their homes, entry being sexually motivated, the performing of sexual acts, the wearing of a balaclava, threats to kill and the use of a knife to threaten the victims.

In respect of some differences between the prior offending and the charges at trial, Fraser JA commented that:

“It is not ordinarily to be expected that a modus operandi will involve behaviour by an offender which is identical in every single respect upon each occasion of offending. Some changes are virtually inevitable as a result of differing circumstances, such as the unexpected behaviour of an intended victim… The coincidence between the appellant’s conduct in these three incidents and the complainant’s account of his alleged conduct in this case added very real cogency both to the complainant’s identification of the appellant as the offender and to her evidence that the appellant had disguised himself and engaged in violent, threatening, and dominating conduct before, during, and after committing the sexual acts.”

In this case, the similar facts evidence was such that “it is abundantly clear that its probative force transcends its prejudicial effect”, and that there was no reasonable view of it consistent with Little’s innocence. As a result, the three prior rape incidents were admissible and no miscarriage of justice had occurred.

Conclusion

As the case law shows, courts are generally reluctant to admit prior convictions because of the potentially prejudicial effect of making a jury believe that the accused is “the sort of the person who might or even would commit” the offences they have been charged with. In this case however, the similarities between the evidence at trial against Little and his prior offending were sufficient to make those prior convictions admissible.

There is little doubt that the striking pattern of offending would have left the jury in no doubt that Little was guilty of having committed the rapes he was accused of. The similarities were so strong that it would have required a fanciful coincidence for Little not to be guilty of rape again.

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