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R v BDB

 

[2018] QCA 23

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v BDB [2018] QCA 23

PARTIES:

R
v
BDB
(appellant)

FILE NO/S:

CA No 120 of 2017

DC No 698 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 5 June 2017 (Kent QC DCJ)

DELIVERED ON:

6 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2017

JUDGES:

Holmes CJ and Morrison JA and Henry J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with 14 counts of child sex offences committed against his partner’s daughter – where the appellant was convicted of 12 of those counts after a five day trial – where the appellant appeals the conviction on the ground that the verdicts are unreasonable and cannot be supported by the evidence – where this Court is required to make an independent assessment of the evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – APPEAL DISMISSED – where a direction about the limited use of preliminary complaint evidence failed to include the name of the complainant’s sister as one of the preliminary complaint witnesses – whether the omission meant there was a failure to properly direct the jury regarding the evidence of the complainant’s sister

GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, cited

Jones v The Queen (1997) 71 ALJR 538; (1997) 143 ALR 52; [1997] HCA 12, cited

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited

R v Mason [2006] QCA 125, cited

R v WAL [2011] QCA 264, considered

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

M J Copley QC for the appellant

D Balic for the respondent

SOLICITORS:

Jacobson Mahony Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. HOLMES CJ:  I have had the advantage of reading the draft judgment of Henry J and agree with his Honour that the verdict was not unreasonable and there was no error in the trial judge’s direction.  The appeal should be dismissed.
  1. MORRISON JA:  I agree with the reasons of Henry J and the order his Honour proposes.
  1. HENRY J:  The appellant was found guilty of sex offences against his partner’s daughter.  He did not give or call evidence at his trial.
  1. In appealing his conviction he complains the jury’s verdicts were unreasonable, mainly because the complainant’s account was allegedly implausible. In addition, he complains of an alleged error in the summing-up not raised below.

Background

  1. The complainant was born in 1999 and her sister was born in 2001. After their parents separated in 2007 they resided with their mother (“GB”).
  1. GB commenced a relationship with the appellant in 2008. It ended in mid-2009 but resumed in about August 2010. A pattern subsequently developed of the appellant staying over at the home of GB and her daughters two or three nights a week during the working week. It was on these occasions that much of the offending occurred.
  1. Then, in November 2011, GB moved into the appellant’s home with her daughters. The appellant and GB married in June 2013. Their relationship ended in April 2015 when the complainant’s allegations of sexual misconduct towards her by the appellant became known.
  1. In summary, those allegations were that the appellant maintained a sexual relationship with the complainant during 2011, before GB and her daughters moved into the appellant’s home, and also committed occasional sex offences against the complainant in the years thereafter.
  1. This culminated in an indictment charging the following offences, resulting in the following jury verdicts, at the appellant’s trial:

Count

Date

Charge

Verdict

1

10.03.11-01.11.11

Maintaining a sexual relationship with a child

Guilty

2

10.03.11-10.04.11

Indecent treatment of a child U/12 under care

Guilty

3

10.03.11-10.04.11

Rape

Guilty

4

18.05.11-01.06.11

Indecent treatment of a child

Guilty

5

18.05.11-01.06.11

Rape

Guilty

6

30.06.11-01.08.11

Indecent treatment of a child

Guilty

7

30.06.11-01.08.11

Indecent treatment of a child

Guilty

8

30.06.11-01.08.11

Rape

Guilty

9

01.09.13

Indecent treatment of a child as a guardian

Guilty

10

01.09.13

Rape

Guilty

11

08.03.14-17.03.14

Indecent treatment of a child as a guardian

Not guilty

12

08.03.14-17.03.14

Rape

Not guilty

13

05.04.15-11.04.15

Indecent treatment of a child as a guardian

Guilty

14

05.04.15-11.04.15

Indecent treatment of a child as a guardian

Guilty

  1. Counts 2 to 8 inclusive were committed during the period in 2011 attracting the charge of maintaining a sexual relationship with a child and were relied on in support of that charge.

Grounds

  1. The appellant’s grounds of appeal are:
  1. The learned judge erred in not directing the jury about the limited use that could be made of evidence given by the complainant’s sister about a complaint made to her.
  1. The verdict of guilty on all counts is unsafe and unsatisfactory in all of the circumstances, in that it is unreasonable.

Ground Two: Unreasonable Verdicts

  1. It is convenient to consider ground two first. That ground was argued as a complaint that the guilty verdicts were unreasonable.  This requires the Court to consider whether on the whole of the evidence it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty.[1]  In performing that task it is necessary to undertake an independent assessment of both the sufficiency and quality of the evidence.[2]

Count 1 Maintaining 10.03.11-01.11.11

  1. In her recorded interview with police of 26 April 2015 the complainant said the appellant had been touching her “on and off for the past four years”. She explained the touchings were particularly concentrated in 2011 and occurred more sporadically thereafter. The series of charged and uncharged acts committed against her during 2011, discussed hereunder, were relied upon to sustain a charge of maintaining a sexual relationship with a child.

Counts 2 and 3 Indecent treatment of a child under 12 under care and rape 10.03.11-10.04.11

  1. The complainant said the appellant’s touching of her first started in 2011 on a night when she was sick with eczema and stayed at the appellant’s home while her mother, sister and visiting relatives went out to dinner.
  1. The complainant fell asleep early, on the appellant’s bed, while the appellant watched television out in the living area. She awoke when the appellant was coming to bed. He told her she would be staying overnight because she had fallen asleep and her mother did not want to disturb her. Her mother’s recollection was the appellant had telephoned her while she was still out and suggested she just leave the complainant with him.
  1. The appellant lay down beside the complainant and appeared to go to sleep. The complainant awoke again later. The appellant was lying on his side, facing her. He brushed his hand past her shoulder down to her stomach and slipped his hand under her jeans and underwear. He felt around, lifting the lips of her vagina and playing with her clitoris, rubbing it really fast for perhaps 30 seconds. Then with two fingers either side of her vagina he inserted his middle finger into her vagina and pushed up and down inside her for a few minutes. There was no conversation. The complainant described herself laying there, not knowing what to say or do, being paralysed in fear. When asked in cross-examination whether she felt any sensation, aside from feeling the appellant’s finger inside her, the complainant replied “It just felt really uncomfortable”.
  1. The appellant removed his hand and went to the bathroom where the complainant heard what she inferred was him washing his hands. He returned to bed and they slept the balance of the night without further incident. She was collected by her mother in the morning and did not then mention what had occurred.

Counts 4 and 5 Indecent treatment of a child and rape 18.05.11-01.06.11

  1. The next occasion of sexual misconduct by the appellant towards the complainant occurred a couple of months later, after she had turned 12 years old. It was the first of many similar occasions that occurred in GB’s bed. The complainant explained that on account of her mother’s apparent happiness with the appellant, she and her sister decided to be more welcoming than they previously had been towards the appellant. So, when he would stay over, they would join GB and the appellant in GB’s bed for a hug in the morning.
  1. On the occasion attracting counts 4 and 5, the appellant had stayed overnight at GB’s home. The complainant and her sister joined GB and the appellant in bed for a morning greeting and cuddle.  The complainant was lying beside the appellant.  His actions concealed by the bedcovers, the appellant rubbed his hand down the complainant’s stomach and into her pants.  He rubbed around the outside of her vagina near her clitoris and then put a finger inside her, moving it up and down.  She felt a bit of an ache in her stomach, less painful than period pain.  The complainant’s mother and sister were talking while this occurred and the complainant tried to act as normal as possible.  When it became apparent the complainant’s mother and sister were going to get out of bed, the appellant quickly withdrew his hand.  After the complainant’s mother, sister and the appellant got out of bed the complainant remained there for a few minutes to compose herself, not wanting anyone to think there was something wrong.  Thereafter she acted normally and did not discuss what had occurred.
  1. This was the first of many like occasions between May and November in 2011 of the appellant touching the complainant sexually when she and her sister would join GB and the appellant in bed of a morning when he stayed over at their home.
  1. When the complainant and her sister first started entering the bed on these occasions the sister would generally get in on her mother’s side of the bed and the complainant would generally get in on the appellant’s side. The complainant explained that after she noticed the appellant’s conduct was recurring she would get into bed on the same side as her sister but the appellant would use trips to the bathroom to orchestrate positional changes on returning to the bed, placing himself near her.[3]

Counts 6, 7 and 8 Indecent treatment of a child x 2, rape 30.06.11-01.08.11

  1. When asked if the complainant could remember any particular incident when the appellant was nearly caught out touching the complainant under the bed covers, she recalled an occasion in the second week of July 2011 during the week. On that occasion after the appellant ceased hugging GB and GB had left the bed to go and make a cup of tea, the appellant slipped his hand down inside the complainant’s pants, touching in the vicinity of her pubic hair. He desisted, apparently because the complainant’s sister was rocking the bed and he risked being caught.
  1. The complainant’s mother subsequently returned to bed with her cup of tea. After a few minutes, the appellant put his hand down the complainant’s pants and felt around the top of her clitoris and the side of her vagina.
  1. He then inserted his finger inside her vagina, pushing up and down for a couple of minutes. When GB finished her cup of tea and put it on the bedside table, the appellant withdrew his hand “really quickly to not get caught”. Again, these events occurred with the bed sheets obscuring what was occurring.
  1. In cross-examination the complainant indicated she did not feel anything when the appellant had his finger in her but she agreed she started to feel a bit of pain afterwards.

Uncharged acts

  1. Offending of this kind during morning cuddles in GB’s bed occurred repeatedly during 2011 when the appellant slept over.[4]
  1. The complainant kept a tally of the occasions when the appellant touched her sexually in the parental bed, which occurred between May and October 2011, in order to help her figure out whether this “was just a one-off thing or whether it was a constant thing”. On her recollection of the tally chart, which she did not keep, the incidents occurred about eight times a month, although in August 2011 it was only six times a month.  She agreed in cross-examination that on her recollection it would have been a total of 38 times.[5]
  1. The complainant testified there were no other situations in which the appellant would touch her inappropriately in that era, save for the touching attracting counts 2 and 3. She testified that in November 2011, when GB and her daughters moved into the appellant’s home, she “stopped going into their bed for hugs”. That evidence was not challenged in cross-examination.
  1. The complainant’s sister’s recollection of when the practice of she and her sister going into the parental bed for morning cuddles ceased was imprecise. While she thought it continued after they had moved into the appellant’s home she also thought it ceased by about the time she had turned 10 and the complainant had turned 12.  They had turned those ages before moving into the appellant’s home.  Her recollection was:

“I think we just grew out of it.  What I think actually happened was [the complainant] just stopped doing it and then I just followed in my sister’s lead because she got older and she was getting more independent…”.[6]

  1. GB recalled morning cuddles had been a longstanding part of her family culture and that the culture of having cuddles in bed continued after she moved in with the appellant.[7]  However, she was not specifically asked whether this then involved the complainant continuing to repeatedly come to the parental bed for cuddles when the appellant was in the bed.

Plausibility of the complainant’s account

  1. It is timely to pause and consider some aspects of the complainant’s evidence emphasised by the appellant as supporting the view that her account, particularly of the offending in the above-discussed era, was inherently implausible.
  1. The complainant agreed in cross-examination that she did not avoid the appellant’s conduct by moving her body or getting out of bed. She explained:

“No.  I’m a 12 year old girl.  I have – I am mature, but I don’t – when you’re in one of those situations, you don’t really know what to do. … I don’t know what the right thing was to do. … Probably why I didn’t say anything earlier.”[8]

This was a credible explanation.  Indeed, it is noteworthy in general that the complainant’s responses under cross-examination appeared reasonable and credible.

  1. Despite the obvious risk the complainant might disclose the appellant’s illicit conduct it was not suggested on the complainant’s account that he instructed her not to tell anyone what was occurring. Such an instruction would have been unsurprising but its absence is hardly remarkable. An adult engaging in a sexual relationship with a child, particularly in a domestic setting, is likely to have a distorted view of the dynamics of the relationship and the child’s attitude to it.  The complainant’s immaturity already reduced the prospect of resistance and disclosure and the appellant may additionally, even if erroneously, have perceived the complainant’s lack of resistance and the fact she kept returning to the parental bed as indicators of acquiescence.  These are all considerations which may have prompted a perception in the appellant’s mind that disclosure was unlikely.
  1. Another alleged oddity is said to be that despite the events suggesting a sexual interest by the appellant in her it was not alleged of this era in 2011 that, save for the initial misconduct grounding counts two and three, the appellant attempted to touch the complainant sexually in other settings at home, when the others were not present. Such attempts might be thought to be less brazen and thus more probable than offending in the bed with others present. Conversely, the brazenness of the conduct described by the complainant might equally be thought to render it less probable as a concoction.  Beyond the superficial layer of these “for and against” points it is more instructive to consider the context in which the appellant was repeatedly offending.  The outwardly innocent cover of domestic affection and legitimately close physical proximity in the very near presence of others meant the appellant could edge under the bedcovers into conduct of this kind each time with a sense of protection from suspicion and plausible deniability in the event of suspicion.  He may well have felt less emboldened to risk touching the complainant sexually in less outwardly legitimate contexts.
  1. The complainant explained she had kept the above-mentioned tally chart in this era in order to help her figure out whether this “was just a one-off thing or whether it was a constant thing”. Clearly it was not a “one-off thing”. It was recurring. That it was occurring secretly under the bedcovers and that the complainant saw fit to keep a record of it suggests she appreciated the appellant’s conduct was morally wrong.
  1. A major argument of the appellant was that the complainant’s account of this era was implausible because if she was being repeatedly touched as alleged she would not, when the appellant was staying over, have kept returning to bed, silently enduring his repeated misconduct. When this point was raised, somewhat indirectly,[9] with the then 17-year complainant in cross-examination she explained she had not wanted to make it seem like there was anything different going on in her family[10] and she had not known what to do.[11]
  1. The appellant’s argument has some force from the perspective of adult thinking, but less so when it is remembered the complainant was only 12 and was being offended against in an essentially familial setting. True it is, some 12 year olds might have had the insight and independence to have simply ceased attending the parental bed for morning cuddles when their mother’s long-term partner was sleeping over and behaving as described. However, many 12 year olds are not possessed of the insight and independence of a teenager, let alone of an adult.
  1. There was no suggestion in the complainant’s testimony that she enjoyed what the appellant was doing to her, indeed she testified that it caused her some discomfort. However, the evidence does not suggest the offending occasioned pain on such a significant scale that, despite considerations of immaturity or confusion, it would inevitably have compelled active avoidance.
  1. Moreover, as the complainant testified, she did not know what the right thing to do in this context was. That at her age and in a familial setting the complainant would be confused at how to react to and deal with what was occurring is hardly surprising. It is made even more unremarkable when it is remembered that she had concluded she should support her mother in making the appellant more welcome into the family unit. It was this allegiance to her mother which motivated the morning cuddle practice when the appellant slept over. In a child’s mind that allegiance, the very reason for the practice, may have tended to cloud and possibly mitigate against the option of abandoning the practice.
  1. These considerations also fit with the context in which the complainant did eventually abandon the practice. It will be recalled that was later in the same year, in November 2011, when the complainant’s mother moved with her children into the appellant’s home. That was a major step past the “welcome into the family unit” phase which had motivated the morning cuddle practice when the appellant was visiting. It would have reduced the perceived need on the complainant’s part to continue the practice in support of her mother.
  1. The complainant’s account of the charged and uncharged conduct in 2011, giving rise to the charge of maintaining a sexual relationship, was not implausible.
  1. Furthermore, her accounts of each of the specifically charged episodes contained detail consistent with her recounting real events. For example, there was a ring of truth about her description of the appellant’s movements in the bed relative to the various movements of the complainant’s sister and mother in respect of each episode giving rise to counts four and five and to counts six, seven and eight.

Counts 9 and 10 Indecent treatment of a child as a guardian and rape 01.09.13

  1. The appellant did not touch the complainant inappropriately again for nearly two years, until Fathers’ Day of 2013 by which time GB and the appellant had been married for about three months. That day, GB and her daughters participated in the Bridge to Brisbane Fun Run. They returned to their Gold Coast home, showered and gave Father’s Day presents to the appellant. GB and the appellant were subsequently lying in the marital bed when the complainant also lay down on the bed.
  1. Manoeuvring his arm under the bed covers, the appellant put his hand down the complainant’s pants and started to feel around her clitoris and the sides of her vagina.
  1. He thereafter put his finger insider her vagina, moving it up and down for a few minutes.
  1. GB then adjusted the covers, manoeuvring closer to the appellant. The complainant’s recollection was that as her mother did this the appellant pulled his hand out “really quickly”. The complainant recalled GB apparently perceived “something suspicious” and asked, “What was that?” To this the appellant said nothing and the complainant said, “It was nothing”. The complainant then walked out of the bedroom.
  1. GB’s recollection of this event was that she saw a “kind of a movement” underneath the covers.[12]  She described what she saw as “the hand moving over [the complainant’s] vagina”.[13]  GB recalled she lifted the covers quickly, at which time she saw the appellant was “like a plank’, with his hands down stationary beside him, and the complainant appeared normal.  On her account she asked, “What was that?  What’s going on?”, to which they both said, “Nothing.”
  1. GB testified, consistently with the complainant’s evidence, that she spoke to the complainant later in the day asking her about what was happening, to which the complainant responded there was nothing happening.  The complainant acknowledged in cross-examination that on her own account this was a lie.  She accepted this was a big opportunity to tell her mother what the appellant had been doing but the complainant explained, “I didn’t want to tell anyone.”
  1. Such a reaction on the complainant’s part is not implausible or inevitably damaging to her credibility. It will be recalled this was the first such misconduct by the appellant for nearly two years and that he had married the complainant’s mother in the interim. The complainant explained her mother was happy and she did not want to ruin her happiness.[14]  It is not particularly surprising that rather than make a very difficult and potentially catastrophic announcement to her mother the complainant would prefer to stay silent and hope, naively, that all might yet turn out okay.
  1. The fact the complainant did not on this day reveal the truth of what had occurred does not eliminate the significance of the fact GB did glimpse movement consistent with what the complainant eventually described was then occurring under the bedcovers. That GB promptly queried what was occurring supports the likely reliability of her recollection of this event. Of course, her fleeting observation of movement beneath bedcovers falls short of being direct evidence of an indecent touching. Of course, there might be innocent explanations for movement of the kind she saw. However, her observation of an apparent movement under the bedcovers by a hand near the complainant’s groin lends some support to the complainant’s direct evidence of what was then occurring.

Disclosures in about 2013

  1. The complainant’s sister recalled an occasion she was with a friend when the complainant had told them the appellant had been “touching her”.[15]  The complainant’s sister responded it could not be true and the complainant said, “Oh no, I’m just joking.”  On the complainant’s sister’s recollection, this “disclosure” would have been made during 2012 or possibly early 2013, prior to the commission of counts 9 and 10.  The complainant’s sister had not attached significance to that conversation at the time because she “didn’t really get” what the complainant was talking about and the complainant used to make dark jokes and make things up.  For instance, the complainant’s sister recalled the complainant used to make up stories about their natural father, an alcoholic, and would say that he had had a car crash, to scare her sister.
  1. The complainant had a generally similar recollection of this conversation. She recalled in her first interview with police that towards the end of 2013 she was with her sister and her sister’s friend and they asked if the complainant had ever kept a secret that she had not told anyone of.  On the complainant’s account, she then told them that the appellant used to play with her when she was sleeping.  However, on the complainant’s account, in the same conversation she then “turned around and said that it was a joke and that it never happened”.  The complainant told them it was a joke because she thought if they believed her they may tell someone and she did not want them to tell anyone because at that stage her mother and the appellant had married and the complainant did not want to ruin her mother’s happiness.
  1. The complainant recalled in her second recorded interview with police of 4 July 2015 that around the end of 2013 she had told her friend KD that the appellant “had been fingering” her, that it had been happening for quite some time and that she did not want to tell her mother because she was scared it would ruin her marriage. In cross-examination she recalled, “I just said that he had been touching me inappropriately. I never went into any details about it whatsoever.”[16]
  1. The complainant had the impression KD “didn’t really believe that it had actually happened” and the complainant recalled saying, “Well, at least it’s not all happening. At least it’s not all true.” The complainant explained she said this because she did not want KD to think that it was actually happening and did not want her to tell anyone. The complainant recalled a similar conversation came up on two or three other occasions when again she would retract what she had said.
  1. KD’s recollection was that the disclosure to her had occurred in 2014 but on the other hand thought it was before the appellant’s wedding, which was in June 2013. KD did not recall the complainant retracting and, while her manner of expression was imprecise, her memory of what the complainant said appeared to be somewhat different than the complainant’s. In her police interview she recalled the complainant said the appellant had been abusive, had called her names and had hit her, and had done sexual things to her. In her police interview she explained:

“I remember asking her like did he kiss you and she was like yes and I said oh, so he has been like sexual towards you, she said yes and I was like oh ok and I didn’t want to go into any more detail…But I think I remember her just saying like he had done stuff to me that I was really uncomfortable with and I kind of got obviously what she meant from that.”[17]

  1. KD explained in cross-examination:

“[The complainant] said that she had been sexually touched, so I kind of got the idea, and I didn’t want to make her more emotional.”[18]

  1. KD’s references to hitting and kissing were inconsistent with the complainant’s account, even allowing for imprecision of expression, and thus unhelpful to the complainant’s credibility. On the other hand, the inconsistencies were not such as to suggest no conversation involving a disclosure had occurred at all.
  1. The evidence of the complainant’s sister and KD, was at least consistent with the complainant having made unspecific disclosures in about 2013 that she had been touched inappropriately by the appellant. That said, the evidence of the complainant’s sister and KD about the disclosures was so bereft of detail that it carried little weight as evidence of consistency.
  1. The complainant’s retraction of the allegation in her conversations with her sister and with KD, further diminished the negligible force of the evidence as evidence of consistency and was positive evidence of inconsistency. It was also evidence of the telling of an untruth by the complainant, though it does not inevitably follow from the retractions that the retracted information was the untruth. It is plausible that by this era the complainant may have been exploring ways of raising the troubling topic of the appellant’s conduct towards her with youths close to her but only tentatively so, creeping up to and withdrawing from a definitive disclosure.
  1. On balance the evidence of retracted disclosures by the complainant to her sister and KD was more damaging than helpful to the complainant’s credibility but not to any determinative extent.

Counts 11 and 12 Indecent treatment of a child as a guardian and rape 08.03.14-17.03.14 (acquittal)

  1. In the complainant’s first recorded interview with police, of 26 April 2015, she mentioned all of the above discussed episodes, as well as the episodes described below in respect of counts 13 and 14, but did not mention the facts giving rise to counts 11 and 12, the only counts of which the appellant was acquitted. Her account of those events was given in a further recorded interview with police of 4 July 2015.
  1. She then explained she had remembered events which occurred on the appellant’s birthday in March 2014. They had returned home from lunch at a Thai restaurant and, after she finished making a cake, the complainant joined the appellant and GB who were having a nap in bed in the afternoon. The complainant was lying in the middle between the appellant and GB who had rolled onto her side, apparently asleep.
  1. The complainant alleged the appellant moved his hand towards the complainant under the covers, moving it from her waist to her hip, across the middle of her stomach, down and under her pants. He felt around her clitoris, holding fingers either side of the lips of her vagina and using his middle finger to rub.
  1. She alleged he subsequently inserted his finger in her vagina for about five minutes. It started to hurt and the complainant arose and left the room.
  1. The appellant was acquitted of the two counts relating to this episode. That was probably because there was a body of objective evidence of the players’ whereabouts which made it unlikely the episode described could have occurred on the appellant’s birthday in 2014 or within the narrow range of dates around that birthday nominated in the indictment.
  1. The conviction of the appellant on the other counts was not inconsistent with the acquittals in respect of this episode. The complainant may simply have made a temporal error, perhaps confusing the relevant year.  For instance, GB recalled the appellant’s birthday when they dined at a Thai restaurant was in 2013, not 2014 as the complainant recalled.[19]  The jury would have been entitled to conclude that the complainant was a truthful witness who was simply mistaken about the timing of this particular episode.  It was not a mistake of such a nature as to materially undermine the complainant’s general credibility or reliability in respect of the other counts.

Counts 13 and 14 Indecent treatment of a child as a guardian x 2 05.04.15-11.04.15

  1. The final occasions of sexual impropriety, which the complainant did recount in her first recorded interview with police, occurred on consecutive evenings in April 2015 after the complainant had come home from working at her job at a fast food outlet.
  1. On the first occasion the appellant walked the complainant home from work at about 10.45 pm.  The appellant stayed up thereafter, apparently watching golf.  The complainant went to bed but stayed awake.  GB was in bed asleep and her sister was staying over at a friend’s house.  The complainant heard the appellant turn the television off at about 1 am and she then turned off the social media she had been using on her phone, deciding she should also go to sleep.  In the first instance the appellant visited her bedroom as he normally did and said goodnight.
  1. He returned a short time later at which time the complainant was lying side on with the covers over her, facing away from her bedroom door. The appellant crouched down over her and reached his hand outside the bed covers, down outside her vagina, moving his four fingers in an up and down motion against her vagina, through the covers. She turned her body completely around, shaking him off and he left without any words being exchanged.
  1. On the complainant’s account she rolled over and cried, troubled that such conduct was occurring again and feeling guilty for not having said something earlier.[20]  Considering the stop start history of the behaviour and the age she had reached, this explanation of her reaction was credible.
  1. The following night, again after the complainant had returned home late from work and stayed up late on social media and the appellant had stayed up late watching television, he again entered her room to say goodnight and again returned a short time later.
  1. Once again, he put his hand down over the covers, applying pressure with his fingers to her vagina. This time, she swung around and told him to go away. He did not respond and then on her account she whispered words “in a really mean and deep and meaningful type of voice as if like don’t come near me again and don’t touch me”. The appellant did not respond and walked away.
  1. Again, considering the history of the behaviour, the age she had reached and the events of the previous night, this account of the complainant’s reaction had the ring of truth. She had finally become assertive in responding to the appellant’s conduct.
  1. GB recalled that on the second of the above two occasions after the complainant returned from work she heard the complainant ask the appellant to massage her back, however she did not witness whether it occurred.[21]  It seems unlikely the complainant would have made such a request if the appellant had offended against her the previous night but it was not apparent from the mother’s evidence how reliable her specific connection of the timing of the back-massage request with the second working night was.  The complainant had no recollection of making such a request.

Further disclosures

  1. The following afternoon the complainant was on the telephone to her boyfriend, who was then overseas. The call was contrary to restrictions placed on the extent to which she could contact him. The appellant yelled at the complainant to get off the phone. An argument ensued, in the course of which the appellant grabbed the complainant by the arm to take her out to the lounge. The complainant responded, “How dare you. You know, my father’s never done that to me”.[22]  While GB could not recall that stage of the argument she was present as it developed further.[23]
  1. In the course of the argument the appellant told the complainant that when he asked her to do something she had to do it straight away. The complainant yelled back, “Well, you can stop touching me in the night”. In response, the appellant pulled a face at the complainant but otherwise did not respond directly and continued with the argument.  However, the complainant noticed her comment had caught her mother’s attention.  GB testified she did indeed hear the comment.
  1. Later that day GB visited the complainant in her bedroom, asking what she had meant by the comment. The complainant told her the appellant had been “touching and fingering her…on and off since 2011…”. This is consistent with the complainant’s allegations. The complainant subsequently noticed her mother’s bedroom door was closed and she could hear crying.
  1. GB testified that she had confronted the appellant that night in bed about what had occurred and he had made no reply. This evidence was inconsistent with GB’s statement to police. In it she said that she had gone into the bedroom and told the appellant that her daughter had “just told me you’ve been putting your hand in her pants. I need to know if it’s true.” According to her statement, the appellant became emotional and said, “Of course not”, indicating that he loved the complainant and “would never do anything to hurt her”. This inconsistency is relevant to GB’s credibility however her evidence did not involve any other material inconsistencies.
  1. The following day GB took the complainant for a long weekend to the Sunshine Coast.
  1. Within several days of their return the complainant was admitted to hospital for treatment of infected eczema. It was there ascertained she had been self-harming. On 24 April she was consulted by a mental health nurse, SD, to whom she disclosed the appellant’s conduct.
  1. SD was overseas and not called at trial but her statement was admitted in evidence by consent.[24]  It relevantly stated:

“[The complainant] disclosed to examiner that her stepfather began sexually assaulting her in 2009 and reported it was still ongoing.  [The complainant] reported that her stepfather [the appellant] will put his hands inside her underwear and touch her inappropriately.  [The complainant] stated the alleged abuse began when she was 11yo when her mother left her for an evening in [the appellant’s] care.  Stated he has come into her bed at night and touched her between the sheets.  [The complainant] stated that the last incident of abuse happened on 7/4/15 and stated he had abused her a few nights previous to that.  [The complainant] reported that [the appellant] will at times take her hand and place it on his genital area.”[25]

  1. The accuracy with which this statement recounted what the complainant had reported was not explored with SD because she did not testify. It is difficult to assess the accuracy of SD’s report of the specific allegation the appellant would place the complainant’s hand onto his genital area, an allegation inconsistent with the complainant’s recollection of what she told SD.[26]  It is noteworthy however that this allegation in SD’s statement was an inversion of whose hand (his) and whose genital area (hers) was consistently referred to in the complainant’s evidence.  It is obviously a real possibility that SD’s statement perpetuated an error by her, for instance noting the words “her” and “his” in the wrong sequence.  That realistic prospect is enhanced by the presence of an even more readily identifiable error in the statement.
  1. That error is the reference to the misconduct having begun in 2009. The complaint denied having said that[27] and, in any event, the fact it is an error is readily apparent from the subsequent content of the statement.  The statement goes on to refer, consistently with the complainant’s known account, to the conduct beginning when the complainant was 11, which was well after 2009.  The presence of an apparent error like that, tends to confirm the impression the specific supposed inconsistency as between SD’s statement and the complainant’s account is of minor weight in countering the general consistency inherent in the disclosure at least having been a disclosure of some form of sexual misconduct by the appellant towards the complainant.
  1. The evidence of the disclosure to SD of the fact of sexual misconduct towards the complainant by the appellant, occurred only 13 days after the last instance of sexual misconduct. The disclosure occurred while the complainant was in hospital, at a time of sickness and emotional vulnerability, to a person in a position of care for her. In light of this context the evidence of the disclosure to SD provided some evidence of consistency tending to enhance the complainant’s credibility.
  1. The disclosure to SD lead to the hospital’s obligatory notification of the Department of Child Safety which in turn notified the police who, on 26 April 2015, attended the hospital and interviewed the complainant.
  1. The complainant told police in that interview that while in hospital, after the disclosure to SD, she had also made a disclosure to her close friend BS about what had occurred. The police elicited no detail as to what the complainant recalled telling BS. When BS was interviewed by police her recollection was that the complainant had told her the appellant had been touching her inappropriately.  On BS’s recollection, the complainant’s reference to being touched inappropriately had occurred in a conversation a few days after she had spoken with the complainant at a time after the complainant and her family had moved away from the appellant.[28]
  1. On one view of the evidence the disclosure to BS of the specific fact of inappropriate touching may have occurred after the disclosure to police.[29]  Either way, the evidence of the disclosure to BS is of no particular significance, for on any view the disclosure to BS occurred after the complainant had taken the more momentous steps of making her disclosures to her mother and to SD.
  1. There was some highlighting by defence counsel at trial of the fact that in the past the complainant had expressed a desire to split up her mother’s relationship with the appellant. When and for how long she held that desire was not pursued with any precision. The overall impression arising from the evidence on the topic is that the desire was strongest in the early stages of the relationship when the complainant was wary of the presence of a new man in their lives and concerned for her mother’s emotional well-being.[30]  The general thrust of the complainant’s attitude to the relationship as it progressed was that by the time the appellant married GB the complainant’s predominant desire was not to ruin her mother’s happiness.[31]
  1. The April 2015 chain of disclosures did not occur until nearly two years after the marriage. The circumstances in which those disclosures occurred do not suggest an obvious orchestration in pursuit of a desire that the marriage cease. They are, however, consistent with the appellant having further offended against the complainant at a time when she was older and more emboldened than before in giving voice to her desire that the appellant cease touching her.

Conclusion

  1. The foregoing analysis shows there were some features of the evidence that signalled a need for caution in assessing the credibility and reliability of the complainant’s account. However, that analysis also demonstrates that none of those features were so troubling, even considered collectively, as to suggest it was not reasonably open to the jury to accept the complainant’s account was truthful and, but for her flawed memory of the timing of counts 11 and 12, reliable.
  1. This was a case in which the complainant gave quite unambiguous evidence of the offending against her and maintained a consistent account under cross-examination. Her account went uncontradicted by any evidence from the appellant. Rather, the main challenge to her account hinged upon the supposed implausibility of her account and her historical failure to complain consistently, matters which diminish in significance when proper consideration is given to her then youth and the essentially familial context in which the offending occurred.
  1. On the above review of the sufficiency and quality of the whole of the evidence it is clear it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offences of which he was convicted. Ground two must fail.

Ground One: Error in Summing-up

  1. The purported error in the summing-up was a failure to list the complainant’s sister as a person to whom a preliminary complaint had been made, in the course of that part of the summing-up which dealt with the use of preliminary complaint evidence.
  1. Where evidence of preliminary complaint is admitted it is necessary that the jury be directed as to the limited use to which such evidence can be put, so as to safeguard against the risk that the jury might otherwise treat such evidence as evidence that the event complained of occurred.[32]  Importantly this is not a case like, for example, R v WAL,[33] where no such direction was given.  The direction was given and no complaint was made about it at trial.  The complaint now made derives only from the omission of a name during the early part of the direction in which the learned trial judge listed the names of the preliminary complaint witnesses.
  1. The preliminary complaint direction was:

“There is a body of evidence in this case concerned with the topic of what lawyers describe as preliminary complaints.  In this case, they are the complaints of [the complainant] that she said to her mother, [BS], [KD] and, indeed, [SD] that she had been touched sexually by the defendant.  That evidence may only be used as it relates to the complainant’s credibility, that is, consistency between those accounts and the complainant’s actual evidence before you is something you may take into account as possibly enhancing the likelihood that her testimony is true.  However, it is important you do not regard the things said in those out-of-Court statements as proof of the actual facts, that is, proof of what actually happened.  Evidence of what was said on those occasions may, depending on the view you take of it, bolster the complainant’s credit-worthiness because of consistency.  But it does not independently prove anything.  When you think that through, we would hope it is obvious why.

Say something happened and you tell somebody that it happened.  It does not matter whether you tell one person or 50 people; it does not make it 50 times more believable.  What matters is you were the one that was there, and you were the one that says it happened.  So it does not tend to prove that if you tell other people what that other body of evidence is about is.  If the story is told consistently to these other people it can be a bolster to your credit worthiness, that is, a reliable witness is someone that tells the story consistently.  Likewise, any inconsistency between those accounts and the complainant’s evidence, may cause you to have doubts about the complainant’s credibility or reliability, and that aspect does surface in this case.  It is something I will return to.  But whether and to what degree consistencies or inconsistencies impact on the reliability of the complainant is a matter for you.”[34]

  1. The appellant argues that the omission to specifically list the complainant’s sister among those whose evidence was to be used for the limited purpose of assessing credibility meant the jury could have regarded the sister’s evidence that the complainant said the appellant had touched her as evidence confirming the truthfulness of the complainant’s account of any or all of counts two to 10.  He submits, in effect, that the listing of witnesses’ names near the outset of the direction meant that what followed was confined only to disclosures made to those witnesses named near the outset of the direction.
  1. The submission overlooks the broader, explanatory substance of what followed. Considering the direction as a whole, it would have been readily apparent to the jury that the direction applied to any account of what the complainant disclosed to witnesses about what the appellant had done to her. The easily recognisable nature of such evidence meant the jury would readily have identified the evidence to which the direction related, regardless of whether or not a witness was specifically named near the beginning of the direction as one of the sources of such evidence.
  1. The simplicity with which the evidence could be identified was enhanced by the direction’s explanation, in terms lay people would readily understand, of why preliminary complaints can only be taken into account as evidence of consistency or inconsistency bearing upon the credibility or reliability of the complainant and cannot themselves be used as evidence of the truth of their content. The risk such evidence may be misused in the latter way is the mischief which the direction is required to safeguard against.[35]  The direction amply safeguarded against that risk.
  1. The direction’s overall content removed any risk that the jury might wrongly assume, had they happened to have noticed the complainant’s sister’s name was not specifically listed in the cluster of names recited at the beginning of the direction, that the direction had no application to the evidence of the complainant’s disclosure to her sister.  The jury could not have been in any doubt that the direction applied to that evidence.
  1. It is also instructive to have regard to what was said by the learned trial judge when he later returned, as he in the above direction said he would, to the topic of consistency of account between the complainant and witnesses to whom she made preliminary complaints. After warning the jury about the need to scrutinise the evidence of the complainant with great care, the learned trial judge identified the circumstances as to why he was giving the warning, including “the difference between the accounts the complainant has given”.[36]  After referring to the inconsistency of the evidence of the complainant’s account to SD his Honour then referred to the preliminary complaints to the complainant’s sister and KD.  In that regard, the trial judge said:

“Another circumstance contributing to this need for care that I’m warning you about is her admitted withdrawal of her allegation to her sister.  And, indeed, she goes further and says she withdrew the allegation with [KD] as well; although, [KD] does not seem to remember it that way.  Her sister did remember the withdrawal.  So you’ve got someone who makes the allegations and then withdraws them, you see.  So that is another thing that contributes to the need for care in acting on her evidence.”[37]

  1. Those references to the complainant’s allegation to her sister, as well as to SD and KD – both of whose names were listed at the outset of the preliminary complaint direction – were in the context of a warning referring to the topic of inconsistency in the complainant’s accounts to others. That topic was also integral to the trial judge’s explanation of the preliminary complaint direction. This lends some indirect, albeit unneeded, support to the conclusion already reached above that the jury would have understood the evidence of the complainant’s preliminary complaint to her sister was evidence of a kind to which the preliminary complaint direction applied.
  1. There was no error and ground one must also fail.

Orders

  1. I would order:

Appeal dismissed.

Footnotes

[1] SKA v The Queen (2011) 243 CLR 400, 409.

[2] Morris v The Queen (1987) 163 CLR 454, 474; MFA v The Queen (2002) 213 CLR 606, 615; GAX v The Queen (2017) 91 ALJR 698.

[3]  Police interview 26 April 2015 transcript p 15.

[4]  AR 35 L28, AR 40 L33.

[5]  AR 40 L31.

[6]  AR 276.

[7]  AR 169 L8.

[8]  AR 38 L40.

[9]  AR 54, 55.  The cross-examination on this topic arose in the context of cross-examination about counts 11 and 12, during which the complainant could not explain why she chose to go to the parental bed on that occasion (AR 55 L10).  The cross-examination then broadened to all of the events “after the first couple” (AR 55 L14).  While the complainant then conceded “the penny had dropped” that the same thing may recur (AR 55 L15), she was not then specifically asked why she had continued to go to the parental bed.

[10]  AR 54 L41.

[11]  AR 54 L30.

[12]  AR 169 L46.

[13]  AR 170 L18.

[14]  Police interview 26 April 2015 transcript p 13.

[15]  The friend, who was believed to have moved to Tasmania, was not called at the trial.

[16]  AR 57 L25.

[17]  AR 300, 301.

[18]  AR 72 L37.

[19]  AR 175 L1.

[20]  Police interview 26 April 2015 p 32.

[21]  AR 171 LL29-41, AR 178 LL20-38.

[22]  AR 51 L43.

[23]  AR 179,180.

[24]  AR 146 L13.  The appellant’s representatives at trial likely perceived some forensic advantage in such a course.  In any event no issue is taken about it in the present appeal.

[25]  AR 285.

[26]  AR 95 L46.

[27]  AR 96 L13.

[28]  AR 66.

[29]  About which no issue as to admissibility is taken in this appeal.

[30]  AR 21 L 43 – AR 22 L 30; AR 33 L 45 – AR L 18.

[31]  Eg Police interview transcript 26 April 2018 p13.

[32] Jones v The Queen (1997) 143 ALR 52; R v Mason [2006] QCA 125.  (With the advent of s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) the temporal constraint of the common law on admissibility of so-called recent or fresh complaint evidence was removed, so that evidence of any complaints by a complainant preliminary to the complainant’s first formal witness statement to investigating police became admissible.  The continued need for a direction of the kind required by Jones v The Queen in respect of what became described as evidence of preliminary complaint was confirmed in R v Mason.)

[33]  [2011] QCA 264.

[34]  R226 LL4-27.

[35] Jones v The Queen (1997) 143 ALR 52, 54.

[36]  R230 L24.

[37]  R230 LL37-42.

Editorial Notes

  • Published Case Name:

    R v BDB

  • Shortened Case Name:

    R v BDB

  • MNC:

    [2018] QCA 23

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Morrison JA, Henry J

  • Date:

    06 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment SC698/16 (No Citation) 05 Jun 2017 Date of Conviction (Kent QC DCJ).
Appeal Determined (QCA) [2018] QCA 23 06 Mar 2018 Appeal dismissed: Holmes CJ and Morrison JA and Henry J.

Appeal Status

{solid} Appeal Determined (QCA)