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R v HBU

 

[2018] QCA 346

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v HBU [2018] QCA 346

PARTIES:

R
v
HBU
(appellant)

FILE NO/S:

CA No 283 of 2017

DC No 908 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 30 November 2017 (Smith DCJA)

DELIVERED ON:

11 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Ryan J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of maintaining an unlawful sexual relationship and particularised offences committed upon his twin daughters, M and A – where the offending began when the twins were 11 and continued until they were a little over 16 and M reported it to school staff – where M was able to describe several unlawful sexual acts with sufficient particularity to have them charged separately on the indictment but A could only do so for one act – where the offending occurred in the context of a family environment where the appellant was a harsh disciplinarian – where at trial the appellant did not challenge the evidence of his violence, but argued it was motive for the twins to make false complaints – where the appellant argued that it was not reasonably open for the jury to be satisfied that: the evidence of each sister was sufficiently independent; that the sisters provided truthful and accurate evidence; or that the elements of each charge had been proved beyond a reasonable doubt – whether the verdicts were unreasonable or could not be supported having regard to the evidence – whether sufficient evidence of lack of free and voluntary consent

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, cited

R v Motlop [2013] QCA 301, cited

R v Winchester [2014] 1 Qd R 44; [2011] QCA 374, cited

COUNSEL:

A J Kimmins for the appellant

C N Marco for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Ryan J and the order her Honour proposes.
  2. [2]
    GOTTERSON JA:  I agree with the order proposed by Ryan J and with the reasons given by her Honour.
  3. [3]
    RYAN J:

Background

  1. [4]
    On 30 November 2017, the appellant was convicted, after a trial, of every count on a 15 count indictment charging him with sexual offences committed upon his twin daughters M and A.
  2. [5]
    In the case of each complainant, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child under 16 years and particularised sexual offences.  The offending included the appellant directing the complainants to fellate him and other sexual acts.
  3. [6]
    The offending continued for years until M complained to school staff on 19 May 2016, about a week after a serious argument with the appellant.  A, who attended the same school, was taken out of class to join M as M made her complaint.  A acknowledged, during M’s complaint, that she too had been sexually abused by the appellant.
  4. [7]
    The offending extended several weeks beyond the complainants’ sixteenth birthday, which was on 10 April 2016.  The end date for the maintaining offence was, accordingly, 10 April 2016.
  5. [8]
    M was able to describe several unlawful sexual acts, committed upon her before she was 16, with sufficient particularity to enable them to be charged as offences on the indictment.  Those charged offences (counts 3, 4, 6, 7, 8, and 9) were included as unlawful sexual acts for the purpose of the maintaining offence which concerned her (count 1).
  6. [9]
    A was able to describe only one unlawful sexual act, committed upon her before she was 16, with sufficient particularity to enable it to be charged as an offence on the indictment (count 5).  It was included as an unlawful sexual act for the purpose of the maintaining offence which concerned her (count 2).  A otherwise gave general evidence about the appellant’s sexual treatment of her before she turned 16.
  7. [10]
    The offending occurred in the context of a family environment in which the appellant was a harsh disciplinarian.  He clashed more with M than with A.  On a number of occasions, the police had been called to M and A’s school because they had attended with marks on their bodies caused by the appellant’s discipline.  The appellant did not challenge evidence of his violence.  Indeed, some of it was introduced in cross-examination of the complainants, and he argued that his violence towards them was the reason for their false complaints.
  8. [11]
    In his closing address to the jury, counsel for the appellant submitted that M’s complaint was explicable as her seeking revenge against the appellant in a “vindictive and aggressive and incredibly manipulative way, … during the same time period she was trying to be vindictive and gain revenge against [her] best friend”.[1]  In context, it seems that counsel was suggesting that the desire for revenge arose because of a fight between M and the appellant in the days beforehand.
  9. [12]
    As to A’s complaints, counsel for the appellant submitted that there was “nothing to back her up” and that the jury ought not convict the appellant of serious offences on the basis of her uncorroborated testimony.[2]  However, those submissions overlooked the “similar fact” evidence: the jury was entitled to use the evidence of one complainant in support of the other’s allegations because of the similarity of their complaints.
  10. [13]
    The appellant has appealed against his convictions, contending that the verdicts are “unreasonable or cannot be supported having regard to the whole of the evidence”.

Ground of appeal

  1. [14]
    In his written outline, the appellant argued that –[3]

“it was not reasonably open to the jury to be satisfied:

  1. (a)
    That the evidence of each sister was sufficiently independent from each other;
  2. (b)
    That the evidence of A was not influenced by her presence when M made the complaints at the school, rendering it unreliable;
  3. (c)
    That the sisters, particularly M, provided truthful and accurate evidence;
  4. (d)
    That M was a reliable witness;
  5. (e)
    That the prosecution had proved the essential elements of each charge beyond a reasonable doubt.”
  1. [15]
    In support of these arguments he identified aspects of the evidence of each of the complainants which he submitted ought to have caused the jury to have a reasonable doubt about their evidence.  For example, he referred to the complainants failing to tell women they trusted about the abuse during the years in which it was occurring; and their leaving (separately) the appellant to live with their mother, then voluntarily returning to him.
  2. [16]
    In oral submissions, the appellant’s counsel added to his written arguments about the reasonableness of the convictions concerning A.
  3. [17]
    He argued, in effect, that with respect to count 2 (maintaining), A’s evidence was not of sufficient quality to allow the jury to be satisfied, beyond reasonable doubt, that the appellant had committed more than one unlawful sexual act during the period throughout which it was alleged that the appellant maintained an unlawful sexual relationship with her (the maintaining period).
  4. [18]
    He argued, in effect, that –[4]
  1. A was able to particularise sufficiently, so as to permit it to be charged separately, only one sexual act during the maintaining period (namely, rape – count 5); and
  2. there was an inconsistency between A’s evidence about when count 5 occurred and other evidence;

however, and of more significance –

  1. because that was the only sufficiently particularised offence which allegedly occurred during the maintaining period, the conviction for maintaining in A’s case relied upon the jury being satisfied, beyond reasonable doubt, of the uncharged acts which A said occurred during the maintaining period;
  2. the evidence of the uncharged acts “could not have got the Crown over the threshold of beyond reasonable doubt”;
  3. there was therefore no evidence of sufficient quality that the appellant had committed more than one sexual act with complainant A during the maintaining period as required for conviction of the maintaining offence.
  1. [19]
    The appellant expressly made no complaint about the learned trial judge’s summing up to the jury, which included directions that they consider each charge separately; a “similar fact” direction; and a “Markuleski” direction.  His Honour also warned the jury to scrutinise the evidence of the complainants with great care before acting on it.

The offences

  1. [20]
    The tables below outline the offences charged on the indictment and brief particulars of each.

Complainant M

Count

Date

Offence

Details

1

Between 20 June 2010 and 10 April 2016

Maintaining an unlawful sexual relationship with a child under 16

Frequent sexual contact – between 30 and 40 times;

Procured complainant M to masturbate him;

Inserted his finger into complainant M’s vagina;

Touched complainant M’s breasts; and

Procuring complainant M to fellate him.

Sexual contact during the period of maintaining included the conduct which formed the basis of counts 3, 4, 6, 7, 8 and 9.

3

Between 20 June 2010 and 31 March 2013

Unlawfully procured a child under 16 to commit an indecent act

Child, to his knowledge, a lineal descendant

In defendant’s bedroom at Capalaba;

Procured complainant M to masturbate him.

4

Between 20 June 2010 and 31 March 2013

Unlawfully procured a child under 16 to commit an indecent act

Child, to his knowledge, a lineal descendant

In defendant’s bedroom at Capalaba;

Procured complainant M to masturbate him.

6

Between 31 December 2011 and 31 March 2013

Rape

In defendant’s bedroom at Capalaba;

Inserted penis into complainant M’s mouth without her consent.

7

Between 31 December 2011 and 31 March 2013

Rape

In defendant’s bedroom at Capalaba;

Inserted penis into complainant M’s mouth without her consent.

8

Between 31 December 2011 and 31 March 2013

Rape

Immediately after count 7, inserted finger into complainant M’s vagina.

9

Between 31 December 2013 and 1 January 2015

Rape

A domestic violence offence

In complainant’s bedroom at Thornlands;

Inserted penis into complainant M’s mouth without her consent.

14

Between 30 April 2016 and 20 May 2016

Indecent assault

A domestic violence offence

In complainant’s bedroom at Thornlands;

Touched complainant M’s nipples with his tongue without her consent.

15

Between 30 April 2016 and 20 May 2016

Rape

A domestic violence offence

Immediately after count 14;

Inserted penis into complainant M’s mouth without her consent.

Complainant A

2

Between 20 June 2010 and 10 April 2016

Maintaining an unlawful sexual relationship with a child under 16

Frequent sexual contact – between 50 and 60 times;

Included touching complainant A’s breasts and procuring her to fellate him;

The sexual contact during this period included the conduct which formed the basis of count 5.

5

Between 20 June 2010 and 31 March 2013

Rape

In the lounge room at Capalaba;

Inserted penis into complainant A’s mouth without her consent.

10

Between 29 February 2016 and 20 May 2016

Rape

A domestic violence offence

In complainant A’s bedroom at Capalaba;

Inserted penis into complainant A’s mouth without her consent.

11

Between 30 April 2016 and 20 May 2016

Rape

A domestic violence offence

In the lounge room at Thornlands;

Inserted penis into complainant A’s mouth without her consent.

12

Between 30 April 2016 and 20 May 2016

Rape

A domestic violence offence

In defendant’s bedroom at Thornlands;

Inserted penis into complainant A’s mouth without her consent.

13

Between 30 April 2016 and 20 May 2016

Indecent assault

A domestic violence offence

Same day as count 12;

In lounge room at Thornlands;

Touched complainant A’s breast(s) with his hand, without her consent.

  1. [21]
    The twins were born on 10 April 2000 and turned 16 on 10 April 2016.  The “opening” date for several of the offences – 20 June 2010 – was the date upon which the appellant’s (now) ex-wife, and the complainants’ first step-mother, S, was assaulted by him.
  2. [22]
    The complainants’ evidence in chief, and the evidence in chief of M’s friend J (a preliminary complaint witness) were recorded in pursuance of section 93A of the Evidence Act 1977.  The complainants and J were cross-examined, pre-trial, in accordance with the provisions of Division 4A of the Evidence Act 1977.  The section 93A and Division 4 recordings were tendered and played as the testimony of the complainants and J at the appellant’s trial.

Approach to appeal and conclusion

  1. [23]
    The appellant is asking this Court to take the serious step of setting aside the jury’s verdicts.  As the High Court explained in R v Baden-Clay[5] (footnotes omitted):

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”.  Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial …

… [A] court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.”

  1. [24]
    I have undertaken an independent review of the whole of the evidence.  I have considered its sufficiency and quality.  I have had regard to the aspects of it nominated by the appellant as providing the reasons why the jury’s verdicts were unreasonable and “against the weight of the evidence”.[6]
  2. [25]
    As explained in detail below, I found the evidence of each complainant compelling and of sufficient quality as to enable the jury to be satisfied beyond reasonable doubt that the appellant was guilty of every offence of which he was convicted.
  3. [26]
    The complainants each gave evidence in a matter of fact way which reflected their reluctant submission to the appellant’s sexual treatment of them – having been groomed for it from a young age.  Nothing about the content of their evidence suggested that it was anything other than wholly truthful.
  4. [27]
    M’s candour about her own behaviour and personality added to her credibility.
  5. [28]
    The lack of particularity in some of A’s evidence was unsurprising and specifically accommodated by the maintaining offence.
  6. [29]
    I found no collusion between the complainants – indeed A was upset at the timing of M’s complaint.  The differences in their descriptions of the circumstances surrounding the appellant’s sexual treatment of each of them detracted from any suggestion of collusion, as did their evidence about the limited discussions they had had about it.  The evidence of each complainant supported the other.
  7. [30]
    I would dismiss the appeal.

The evidence in chief of complainant M

  1. [31]
    The parties admitted that the appellant assaulted S on 20 June 2010.  She then left the household.  The first incident occurred after S left.
  2. [32]
    The appellant invited M into his room, and said: “I want to explain something to you”.[7]  She said he “pulled out his penis and he got lubrication out of the drawer and he didn’t make me perform oral sex but he made me give him a hand-job and was like this is what happens and I was about … eleven and a half when that happened”.[8]
  3. [33]
    After that, “it escalated from just that to him making us give him oral sex.  And then to him like forcing us to let him finger us”.[9]
  4. [34]
    M described several specific instances of abuse.
  5. [35]
    There was the first time (count 3), when her father “rubbed his penis with [her] hand.”[10]  She said:[11]

“So, I walked into the bathroom and he got the lubrication out and then he undid his pants and everything … and he was like oh, this is what you do.”

  1. [36]
    His penis was hard.  He did not ejaculate on that occasion.  He did not ejaculate until he made M give him a “head job”.[12]
  2. [37]
    The appellant told M the lubricant made it “easier”.  The lubricant was in a clear bottle, kept in “his” drawer in the vanity.  It was not a “spray” bottle, “it was like kind of a tube shape and the top of it was … like a pump kind of one”.[13]
  3. [38]
    This first incident occurred just before school went back after the Christmas holidays.[14]
  4. [39]
    The second time (count 4) happened “a week or two later”.[15]  This time, “he didn’t show [M] what to do ... [He] was like, okay, you did it last time, do it again.  So he got the lubrication out and I rubbed his penis again with my hand until he said okay, that’s enough.  And then I walked out.  Like nothing had happened”.[16]  He did not ejaculate.[17]
  5. [40]
    M spoke more generally:[18]

“And then like, he’d turn around and be like, if you don’t do this, you’re not allowed to have this.  So, obviously, being a young child I wanted whatever it be, whether it’s to be able to watch T-V that night or something.  And so, he’d be like this is what you do and then I’d do it because I was like well I want to be able to do what he’s saying he, he would take off me.  And then, that finished, I just walked out of the room, thinking nothing was bad about it or anything.  I didn’t think it was wrong or anything … And then I’d turn around and be like oh, can I have this for lunch, like just over lunch.  And he’d be like, oh well, he’d call it minutes, and he’d be like oh well, you have to do a couple of minutes if you want that.  Otherwise I’d get like no lunch.”

  1. [41]
    After being asked to talk about the “next time”, M explained that “a lot of them after that, kinda blur in but the next one that’s really significant was when he made me perform oral sex.  That woulda probably been about four months later”.[19]  It was around her twelfth birthday, because she remembered having the presents around.
  2. [42]
    She said that the appellant approached it like he was teaching her “a lesson or something”: “as if I was bloody at school in sex-ed”.  The appellant said: “… so you know what to do with giving someone a hand job”.  Then he said: “… this is how you give a guy a head job”.  The appellant pulled his pants down and explained: “so, you put my penis in your mouth and then you move your mouth along my penis as if you’re sucking it”.[20]
  3. [43]
    M said: “So I did that, thinking there was nothing wrong with it or anything.  And then, he didn’t tell me to stop and I was like, oh, is that enough and he’s like no, keep going (count 6).  And, then he did ejaculate and that’s when he explained to me what that was and everything.  And then he was like, oh, you can go spit it, just make sure you wash out the sink”.[21]  M stood there while the appellant explained what ejaculate was.[22]
  4. [44]
    The appellant was married to MO by the time of the first episode of oral sex.[23]
  5. [45]
    The appellant regularly required M to perform oral sex on him:[24]

“And every time he’d ask me to come into the room, he’d be like, oh ... I need to show you something or I need to tell you something … Until I got to an older age.  And I’d walk in there and he’d be like, you said you wanted um to do this or like I’d want to go to the movies or … [s]omething like that”.”

  1. [46]
    Each occasion lasted for “four minutes max.”[25]  “About six times out of ten,”[26] the appellant would ejaculate into M’s mouth, and she would spit it into the sink in his bathroom.
  2. [47]
    M learnt that it was happening to A as well:[27]

“And when my sister and I spoke and like we’d be like, oh well, like are you doing the same thing with Dad.  And she’d be, yeah, I’m doing the same thing.  Dad also said … [o]h [MO’s] pregnant.  She doesn’t want to do anything.  So it was as if we were getting used as his sex slave or sex toy.”

  1. [48]
    The next specific incident M described was “a couple of weeks after the first time he made [her] give him a head job”.[28]  The family had an au pair from Canada staying with them.  The au pair and MO were out.
  2. [49]
    After asking for, and receiving, a “head job” from M (count 7) and after M spat the ejaculate into the sink, the appellant said to her: “pull your pants down” and “spread your legs blah blah blah”.  She continued –[29]

“And then he stuck a finger up my vagina and I was like, hang on, what are you doing.  And he was like oh, an Asian woman I dated when I was younger told me, this is a really good thing to teach your daughters and that when they get older and they have sex, it will reduce the amount that they hurt.  So I was like, oh, okay, well there’s nothing wrong with this then.  And then he did that for a couple of minutes and then he was like okay, you can go back outside.  And then he went in and washed his hands and came out.”

  1. [50]
    This act of digital rape was the basis of count 8.  The appellant told M that it was supposed to help her and was called “stretching”.[30]  She was lying on the bed and he was “standing just like kind of over [her]”, which felt “intimidating”.  It was painful.  He put his finger “in and out” of her vagina.[31]
  2. [51]
    M said that she was scared of the appellant:[32]

“I’ve always been scared to ask questions, scared to stand up to him because he, he’s really intimidating and scary and he, he goes to a counsellor at the moment but back then, he never went to a counsellor so his anger issues were really bad.”

  1. [52]
    She added that the appellant had been “very violent” since they were young.[33]
  2. [53]
    M said that oral sex happened quite a few times after that but “like a lot of them just blend into each other”.  She continued:[34]

“And then like, the ones that I really, like really remember in great detail are the ones that have happened recently where it becomes where, oh can I watch this show on T-V when he’s watching one of his shows … and we got to a certain age, he’d just call it minutes.  And I’d be out and I’d be like, oh can I get this from Hungry Jack’s.  And he’s like, oh are you gonna do some minutes …I’d turn around and be like okay, well I’ve got no other option.”

  1. [54]
    Similar exchanges happened on many occasions:[35]

“[E]very single time it’d be that, I want like a specific snack or I’d want a specific leftover for lunch or something ‘cause we had leftovers in the freezer.  We’d be like, oh I can have this for lunch and he’d be like, oh well you have a couple of minutes to do if you want that.  Or can I watch this on T-V and he’d be like, well you haven’t done your minutes from last time … And I’d never speak back to him or anything because that happens and I’d lose all technology, wouldn’t be able to watch T-V and everything and then like, I didn’t want any of the trouble …”.

  1. [55]
    The most recent episode of abuse occurred about a week before M’s complaint.  M lied about some money that was missing from her bank account – and falsely implicated B (her friend).  After she was exposed, she owned up to the lie but the appellant was angry with her.  She said:[36]

“… Dad turned around and he goes, get over to your room now and like yelled at me, so I ran.  I was scared, I ran out the back door ‘cause I live over in the shed … And he came over and he was talking to me about what had happened and he turned around and he goes.  Um, he’s also made myself and I’m not too sure about my sister but he’s made me … show him my boobs, and he would rub his tongue on my nipples.  Um, so he turned around and he was like, okay get your nips out.  And so I did … he was really … upset with me for what I’d done because I’d blamed my friend for taking money out of my account, when I transferred the money.  And so I did that, and he did that for about a minute (count 14).  And then he was like, okay and then he just pointed down towards his penis and I knew exactly what he wanted.  So I did that, he opened his pants, pulled his penis out and I sucked it, but he didn’t, he was like okay stop, before he ejaculated (count 15).  And then he was just like dinner’s nearly ready and walked out.”

  1. [56]
    She provided more detail.  She explained that she lifted her shirt with her midriff singlet underneath and exposed her breasts.  She walked over to him – he was sitting on the lounge – and –[37]

“like leant over the top of him.  And then he rubbed his tongue along both of my nipples, like one at each time for about thirty seconds each.  And then he turns around and pointed at his penis and I put my shirt down and knew exactly what he’d want and then just kneeled down in front of him and then he undid his buckle, undid his button on his pants, undid the zip and then pulled his underwear and pants, like … not fully down his legs, but just down enough for him to get his penis out and then I gave him a head job.”

  1. [57]
    The appellant’s penis was soft.
  2. [58]
    A little later she explained in great detail the lies she’d told about the money; the reason for them; and the appellant’s angry response.[38]
  3. [59]
    M was asked whether she had spoken to the appellant about his behaviour towards her.  She said she had, before she went to live with her mother, when she was still 14:[39]

“And he was like, oh if you want this, you have to do that.  And my face, I was kinda like, you know pissed off.  And he was like, oh why do you got that face.  I’m like, I’m sick of doing it.  And then he turned around and he’s like, oh okay then, we won’t do it anymore, that’s fine, don’t ask me for anything ever again.  Like that’s one thing he said quite often to me about a lot of stuff.  If I’d do something wrong, it’d be don’t ask me to ever help you again or don’t ask me to ever do something for you again.  And, then it, seriously, it’d be like two days later and he’d be like, if you really want this, you have to do this.  And I’d just give up, I’d be like, whatever, I’ll do it, fine.  Why try and stop me from doing stuff I really want to do.  A school excursion which is compulsory, oh if you want to go on that, you have to do this.  If you want to go to your friend’s place or your friend’s party this weekend, you have to do this.  And I was just like, um okay fine.  I’ll do it because I really want to go to that friend’s birthday party, it’s one of my closest friends or okay, this is a compulsory excursion, I’m gonna get downgraded if I don’t go on it.  My grades?  Fine, I’ll do it.”

  1. [60]
    M was permitted to attend an excursion at the end of grade 9 in exchange for “a couple of minutes” (count 9).[40]  She said:[41]

“… they had like an end of year like kinda like, if you were a good student, if you hadn’t been suspended … if you’d handed in all your assignment and everything, you got to go on excursions.  And I was like, yes sweet, get to go on excursions with all my friends, it’s all organised for, I don’t have to worry about organising it.  And I was, I took home the paper and I’m like, hey can I go on this.  And he was like, oh I’ll talk to Mum about it, which is MO.  And then the next day, he turned around and he was like, oh you know that excursion, we were sitting in the lounge room, MO was either in the office or in the bedroom, and he’s like, he lowers his voice so that MO can’t hear him and he turns the T-V up a little bit.  And he goes, if you want to go on that excursion, you have to do a couple of minutes.  And I’m like, well, I want to go on that excursion to see all of my friends so fine I’ll do the couple of minutes.  So then I’d do it, it’d normally be either in the morning when MO was still asleep or it’d be at night, after MO’s gone to bed.

… It was the next morning.  Before MO got up.  He came in and woke me up and he’s like right, are you ready.  And I was like fine, and I did it.”

  1. [61]
    M described what the appellant was wearing and the way in which he exposed his penis by pulling his grey robe to one side and pulling down his underwear.  She explained that she was sitting on her bed.  She fellated the appellant.  She said it was “two mornings” after she had brought the permission slip home.[42]
  2. [62]
    She estimated that over the years, the appellant had dealt with her sexually 30 or 40 times.  Quite a few times, he told her not to tell anyone because he would “get in trouble” as would M.  She said she did not realise, until she was about 15, that she wouldn’t “get in trouble”:[43]

“And I didn’t realise until, I was about 15, so about last year, that how am I gonna get in trouble for his, when I’m the one getting pressured into doing that.  I’m not going to get into trouble for this.”

  1. [63]
    The appellant married MO in 2012.  Her son lived with the family.  MO and the appellant have one child together, a daughter, X, who was four when M made her complaint.  It was the thought of X being subjected to similar abuse that “really pushed” M to say something.[44]
  2. [64]
    MO was out when each instance of abuse occurred,[45] except for the final occasion.[46]
  3. [65]
    Each of the “thirty, forty, maybe”[47] occasions of abuse involved either oral sex, her father touching her nipples or “stretching” her by placing his fingers inside her vagina.[48]
  4. [66]
    Of her awareness that the appellant was engaging in the same behaviour with A, M said:[49]

“Because Dad called it minutes to both of us. ‘Cause I’d overhear him saying something to A about it and I knew that that’s what he called it with both of us.  Like, I’m pretty sure I’d spoken to her previously about it but like I don’t remember what had actually been said.

Or I’m having to do a couple of minutes and he’ll turn around and be like um okay, go and get A now.  So I’m kinda like, oh well like, I kinda just, basically in my head, put two and two together and I’m like … Well she must be having the same thing happen to her.”

  1. [67]
    She said she had never told A exactly what happened – nor could she remember A telling her.
  2. [68]
    According to M, she only discussed what was happening with her twin on one occasion.  The two girls were at work:

“It was Dad, myself and A.  Dad was up, going and seeing the customer to let them now (sic).  As I got out, like I got out of the car to let Dad know how far up he could reverse and he’s like, um, I don’t remember what the subject was but if you want this, you have to do a couple of minutes.  And I straight up went shot not, so A got stuck with it.  And then, when, I showed Dad how far up he could reverse and he came out and was like, oh go talk to A, she’s upset with you about something and he went to see the customer.  And she was upset, pretty sure it was about sitting in the front seat of the car because we always fight about whose in the front.  And I turned around to A, and I was like A, you don’t have to do it, you know he can get in a lot of trouble for this.  And she was like crying, she’s like, yeah, but why would we do that to him, he’s our father.  And I’m like, A, ‘cause it’s wrong.  And then he walked down to, come tell us, to, come start packing up the castle, so I stopped talking to her.  But that’s really the only time, I really and significantly remember telling her or talking to her about it.”[50]

  1. [69]
    M did not think the appellant was circumcised.  She was not one hundred per cent sure, but she did not think so.[51]  She was aware of circumcision because she was able to compare her little brother’s penis before and after its circumcision, but she was “not too sure” about the appellant because her little brother only had a small penis.[52]
  2. [70]
    She explained the bartering or exchange system in place generally:[53]

“… every single time it’d be that, I’d want like a specific snack or I’d want a specific leftover for lunch or something … We’d be like, oh I can have this for lunch and he’d be like, oh well you have a couple of minutes to do if you want that.  Or can I watch this on T-V and he’d be like, well you haven’t done your minutes from last time.  And I’m like are you kidding me, what am I, in jail, like seriously, that’s what it feels like. And I’d never speak back to him or anything because that happens and I’d lose all technology … I didn’t want any of the trouble but my little sister sees me as her role model.  I adore my little sister … She’s everything to me.  And so I’d just be like, fine, I’ll do it …

… there was one time when B [M’s friend who was living with the family] was at Centrelink and Medicare … MO and I were at dance lessons.  [M’s little brother] was in his room on his iPad watching YouTube so he was nowhere to be seen.  A was in her room doing homework, she had, either the door partly closed or closed.  And we’d be out in the lounge room and I’d be like, oh can I watch this on T-V or oh can I go on Facebook … He’d be like, oh well you have a couple of minutes to do, so I’d be like, um okay, so I’d basically sitting there for five minutes umming and arring, do I want to go on Facebook.  And there was a couple of times where I was just like, nuh I’m not going on Facebook then, fine.  I’ll just go on Facebook on my phone, later when you don’t see me doing it.  Simple.  I don’t care.  But it’d be like, when I got sick of watching the same old thing on T-V and I wanted to watch Vampire Diaries, one show I absolutely love.  And so I’d be like fine, I’d walk down, kneel in front of him, take his belt off, undo the button, undo the zip, pull his pants down, underwear as well, pull his penis out and do the exact thing, give him a head job, and then probably about six times out of ten he would ejaculate and afterwards, I’d just wash my mouth and then go back into the lounge room and watch Vampire Diaries or go on Facebook.  That, that happened, quite a lot of times.”

  1. [71]
    No one time stood out because “they all happened the exact same”.  “[F]ive times out of ten, he would ejaculate and then the other times it’d be that MO pulls into the driveway.  And he’d be like okay, and then he’d rush to do up his pants and belt and then walk out to MO as if nothing had happened …”[54].
  2. [72]
    M explained that counts 14 and 15 occurred on the Tuesday before her complaint to school staff.  By Wednesday and Thursday, the appellant was a lot calmer.[55]
  3. [73]
    M explained that, on the day of her complaint, she spoke to the school chaplain in the morning about moving back in with her mother.  She said nothing to the chaplain then about the oral sex.  She made an appointment to see the guidance officer after second lunch.  Her best friend J was with her on both occasions.  While M was waiting for the guidance officer, she told J, who was aware that M was physically abused by the appellant, that she was sexually abused as well.  J told her to “lay it all out” for the guidance officer.  Using J’s phone, M sent a text message to her mother, complaining about the sexual abuse.  (M was not allowed to text her mother from her own phone – she was only allowed to text the appellant, MO or her sister A.).
  4. [74]
    She told the guidance officer about the appellant’s sexual abuse.  The guidance officer explained that she would have to “make a report”.  M’s mother was “fuming” (after she had been informed) and drove to the school from Caboolture.  M continued:[56]

“My sister had no idea that I’d told anybody until about 5 past 2, until she got pulled out of class and we were in the Principal’s office … waiting for my Mum to come get us and … my sister’s got a really close relationship with the chaplain, Heather.  And like, Heather classes us as her daughters, we’re really all close.  And A was like, oh can, to J, can you go ask for Heather to come up …so Heather came in and A was crying and Heather’s like what’s going on.  So I explained to Heather everything she she’s like why didn’t you tell us this, this morning, we could have dealt with this ages ago.  And I was like, I didn’t know how to tell you what was going on, so then Heather was just there for like emotional support for mostly my sister ‘cause she’s more emotional than I am …”.

  1. [75]
    M was asked additional questions by the prosecutor during her pre-recorded evidence.
  2. [76]
    She confirmed that she had stopped living with her father after her complaint on 19 May 2016.  Prior to that she had always lived with him, apart from a period from January 2015 until September 2015, when she lived with her mother.
  3. [77]
    She said she did not want the “sexual things” to happen:[57]

“There was multiple times where I’d said that I didn’t want to do it, and then after that would happen, it would have – the sexual activity would cease for a little while.  But then, I would have no choice but to complete those sexual acts to be able to, most of the time, just have food, just to be able to eat lunch.

… I felt obligated that I had no other way to be able to get what I was asking … Because he would say to me that that – I – if I didn’t do that, then I wouldn’t be able to do what I’d asked to do or have what I’d asked to have.”

  1. [78]
    She was asked about the occasion when sexual activity was related to a school excursion.  She said she did not do or say anything to indicate that she did not want it to happen.  She said she felt “obligated that I had no other choice”.  She said there was no other way that she would be able to go on the excursion.[58]
  2. [79]
    On the final occasion, she said, in effect, that her expressions revealed her reluctance but she felt she had no choice:[59]

“By the expressions that I pulled, he was able to tell that I did not want to do it, but from the previous actions of – I was actually, had lied to them about some other incidents to do with friends, and I needed my phone for my safety, not only at school but also while I was at work and to be able to get home, so I felt obligated that that was the only choice I had to be able to get my phone back.”

  1. [80]
    She said her facial expression conveyed “some attitude”.
  2. [81]
    It will be apparent from the foregoing that M described the appellant’s abuse consistently throughout her evidence in chief.

Cross-examination of complainant M

  1. [82]
    Under cross-examination, it was established that –
  • from ages 11 to 16, M would lie because she was scared of the appellant and did not want to get in trouble for things that she was doing; she would lie to numerous people because she felt it was the easy way out;
  • M had a strong, stubborn personality – though not always a “short fuse”; she never took a “backwards step” in an argument;
  • the appellant had an aggressive personality; M, “at some times” had a similar personality;
  • M was aware that her mother loved her; sometimes they got on well – sometimes they didn’t;
  • M knew she could trust her mother 100 per cent; she knew the appellant’s first wife, S, loved her and she trusted S 100 per cent; she got on well with MO and knew MO loved her;
  • M missed sex ed at school (she always moved schools before or after it had been given);
  • she did not speak to A after the first incident of sexual contact (the hand job);
  • M and A did not tell each other everything – a lot of times they did not get along;
  • after the hand job, she was not “inquisitive” as to whether A had experienced such a thing.  It did not “dawn” on M to find out;
  • there was nothing which stopped her from asking her mother about it but she did not do so because she did not think she had done anything wrong;
  • she did not raise the second occasion (another hand job) with her sister – however, the appellant told her “in the first couple of incidents” that she and he would get in trouble and not to say anything;
  • she did not realise what was happening was wrong until she moved back from her mother’s in late 2015/early 2016;
  • on the first occasion she touched the appellant’s penis, it was hard.  On the second occasion, it was soft;
  • in 2012, A lived with her mother – she and M did not go to the same school, although they caught up with each other every now and then;
  • she had not heard the words “head job” or “ejaculate” until the appellant introduced them to her;
  • she did not tell A about the first incident of oral sex;
  • she had a close relationship with the Canadian au pair, who was “another outlet to discuss personal things with”;
  • M did not speak to her sister about the appellant’s inserting his finger into her (M’s) vagina;
  • the appellant told her it was “normal” that it hurt when he digitally penetrated her;
  • she did not speak to any of the women she trusted about “stretching”;
  • she did not know whether A had any “issues” having her permission slip signed for the excursion;
  • she moved back in with the appellant, after staying with her mother in 2015, because she and her mother were not getting along that well;
  • she could not remember speaking to her sister about being sexually molested by the appellant before September 2015;
  • she could not remember A raising anything with her about being sexually molested before September 2015;
  • the reasons she moved in with her mother included her constant fighting with the appellant and her belief that he was too aggressive, verbally and physically, towards her; there was one incident where he choked her, which was the “last straw”, a few days after which she decided to move to her mother’s;
  • she agreed that the fight before counts 14 and 15 was over lies she’d told to get back at a friend –  “a vindictive episode against [her] friend” – which included an allegation that her friend had stolen money from her;
  • she agreed that she wanted revenge against her friend;
  • before she made the complaint at school, things were “pretty bad” between the appellant and M; the fight (about the lies) was one of most ferocious they’d had; during it, she accused the appellant of being aggressive and physically hurting her; the appellant accused M of being a liar; it went on over days;
  • M did not mention, during the fight, anything about the appellant’s sexual behaviour towards her.  She said, “No, I didn’t want to mention it because I didn’t want to ruin the family”;
  • by the time 19 May 2016 came around, M wanted out from the family home and was “just interested” in getting herself out of there;
  • she discovered that A was also being sexually abused between September 2015 and when she made her complaint;
  • the conversation with A, after she (M) told the appellant “shot not”, was the only conversation with A that she could recall;
  • there were occasions where M would be asked to get A after the appellant had finished with her, or A would be asked to get M; on the majority of those occasions, M was first;
  • after marrying MO, the appellant attended counselling to deal with his aggression; M went to some of those counselling sessions with him, after September 2015; she also attended counselling sessions on her own about her relationship with the appellant; although she knew the counselling sessions were confidential, she did not disclose sexual abuse, because she did not like opening up to people – nor was she there of her own choice.  She did not feel comfortable and she did not open up to the counsellor at all;
  • the first contact M had with police was when she was in year 7 in 2013.  The appellant had beaten her with a wooden spoon and left bruises.  The deputy principal at the complainant’s school called the police; the complainant wanted the police to be called; she was interviewed by police at a time at which she was very angry with the appellant; she knew it was a serious thing to be making a complaint to police; after the police became involved, MO tried to become M’s close confidant; the appellant was spoken to by police.  He “basically laughed it off and said that they basically just said that it happens all the time and not to worry about it and that they get calls like that from kids like myself all the time”;
  • she was upset, angry and disappointed before her complaint on 19 May 2016;
  • her friend J did not ask her about whether she had been sexually abused.  M told her, without prompting (I note that this is inconsistent with J’s evidence);
  • during the complaint, A did not “just agree with” M, “she was talking for herself”;
  • on 19 May 2016, M still wanted something to do with the appellant, she just did not want to live in the household anymore;
  • she did not fight the appellant back physically;
  • she was suspended from Wellington Point High School for getting in a fight.  She hit a girl with cystic fibrosis, who hit M first.
  1. [83]
    The questions asked of M in re-examination, and her answers, established that she and A had no time alone after M complained to the guidance officer and before they each spoke to police (for the purposes of a section 93A recording).  M heard A tell Heather that she had been sexually abused by the appellant – but that was all.
  2. [84]
    She also explained, in re-examination, that her access to her mother was restricted. She needed the appellant’s permission to contact her mother.  She was obliged to allow the appellant to look at her calling, messaging and online history.
  3. [85]
    She said, in effect, that on 15 to 20 occasions, the appellant referred to his sexually abusing A just before he sexually abused M, or referred to his going to sexually abuse A after his abuse of M.

Examination in chief of complainant A

  1. [86]
    A spoke first about the last occasion of abuse.  It was “last week” after school.  Her step-mother was at personal training with M, her brother was outside and her little sister was watching T-V.
  2. [87]
    The appellant told her to go into his room and to “do it”.  He “basically” forced her to give him a head job[60] (count 12).  A sucked the appellant’s penis for about five minutes, until he ejaculated.  She spat the ejaculate into the sink and “went back to doing [her] homework”.[61]  Before she went into the appellant’s room, he told her he needed to talk to her.  When she went into his room, he said “are you ready”.[62]  She was sitting on the bed, and he was standing in front of her:[63]

“And then, like, once he pulled his, undid his pants and that, he, like, then I leant forward and did it and it’s like he forced me to do it … Like when I was doing it, he was like holding my head and it was like really hard … And he was pushing it as well … he was like moving his hand, and sometimes he would push it … push my head harder … it made me feel like I was getting used.”

  1. [88]
    The appellant’s penis was soft, but towards the end it was harder.  His penis was circumcised.[64]  She explained that she spat out the ejaculate because she did not like the taste of it.  She described its taste.[65]
  2. [89]
    The first incident occurred sometime when she was 11:[66]

“I didn’t really know what was going on ‘cause I never really heard about it before and stuff … I can’t really remember back to when I was that young … Basically I know that it was … me, M and [the appellant] living at home.  There was no one else with us … And [the appellant] was making us, both M and I do it at that time.  But like I had, I didn’t know what was going on or anything … I just did it … he’d like send like one of us to like our room or something … And then he’d get us to give him a head job and then he’d tell us to go get, like, he’d tell me to go get like M.”

  1. [90]
    She thought the first time happened in winter because it was cold and the heater was going.  She continued:[67]

“And he told my sister [to] go to the bedroom until he told her to come back out.  And then he was like to me, oh, I want you to try this and then he unzipped his pants and put his recliner down ‘cause he had it up … And then, he um told me to suck on his penis and then … I was doing it for like two minutes and then he told me to stop …

[After he pulled his pants down a bit] he pulled me forward towards him …Like he grabbed my arm … [a]nd then he told me to like kneel and then he told me to um suck on his penis … And then like I was doing it for like, I think it was like two minutes and then he told me to stop (count 5) … And then he told me to go get M.”

  1. [91]
    The appellant told A a couple of times not to tell anyone else because they would both get in trouble.[68]
  2. [92]
    Count 11 occurred two weeks before her interview.  It was a Monday, when she did not go to school.  She was at home working on an assignment.  MO was dropping M at school for her Diploma.  It happened at about 11 am.
  3. [93]
    The appellant “called me into the lounge room… And then he’s like, okay, are you ready to do it now?  And I’m like, okay.  And then he pulled his pants off, down, and I kneeled and I sucked his penis … And then so he ejaculated and then I went to my bathroom, spat it out in the sink, and rinsed it out”.[69]
  4. [94]
    She knew that “are you ready” meant “are you ready to suck my penis” because he said it quite a few times.[70]  She spat the ejaculate into the sink in the bathroom attached to her bedroom, then went to get some food (rice crackers) and return to her homework.  The appellant told her not to tell anyone about it.  He had been watching the “A and E” channel on Foxtel.[71]  He also said a few times to keep it a secret.[72]
  5. [95]
    The appellant would “control” her head: “Um, so basically during it, he would like hold my head and like push it as I was going.  Like he’d, like his hold on my head would gradually grow harder”.[73]
  6. [96]
    She recalled a similar incident which was one of several times her father had abused her while her step mother was at the gym:[74]

“So one of the times was, he came in to my room in, ‘cause in the afternoon, I close all my blinds, so it’s all closed up, and he told me to go on his bed, go on my bed and then he pulled his pants down, and he’s like, okay, you ready? … And then I just went forward and sucked his penis … I was sitting [on the bed] … just off the edge ...”.

  1. [97]
    A had been working on a chemistry assignment.  The appellant held her head a little on this occasion, but not as much as he did at other times.  That conduct was the basis of count 10.  A’s little sister was in the house watching T-V, but not walking around.
  2. [98]
    A said that sometimes the appellant would touch her breasts:[75]

“Like every now and again, he’d touched my boobs but it was like, more as like playing around than anything.  And that was it … So like sometimes when we’re like mucking around, like after school and stuff, like he’d touch my boobs, but like sometimes he didn’t mean it, but sometimes he did … [She knew sometimes he meant it because] … it was just like the way he did it and stuff.  And he’s, he like when like he meant it, he wouldn’t say, oh, sorry, and that.  He’d just say nothing … [L]ast week … I was leaning over, giving him a cuddle, on his recliner … [and] he grabbed his, whole hand … Like he cupped his hand and then he grabbed my boob and then like he squeezed it as well … I was wearing my Elmo pyjamas and Kmart T-shirt that was black … It would’ve been last week on the Wednesday night.  (count 13)

  1. [99]
    She provided more details about the whereabouts of the other members of her family.  She said she understood the abuse was not punishment of her – the appellant enjoyed it.[76]
  2. [100]
    A said there were no conditions attached to her performing oral sex upon the appellant but that sometimes when she said no, he would not talk to her for the rest of the night:[77]

“So like one time I was really stressed with school and work and everything and I turned around to him and said, no, I can’t do it at the moment, I’ve got a lot to do.  And he got really cranky and didn’t speak to me for the rest of the night … Like I wasn’t on the dishwasher … And he made me do the dishwasher and like he just made me do everything else that wasn’t meant to b[e] my job to do.”

  1. [101]
    The only person she’d told about the abuse was M.  She recalled a conversation when the two girls were doing their washing (folding and sorting their clothes):[78]

“Um, she was like oh do you um like when Dad like calls you in to like give you a head job and stuff.  I’m like, no not really, it makes me feel like he’s using me for that… And then she’s like, yeah I feel the same.  And then, Dad got home and then we stopped talking about it.”

  1. [102]
    She remembered another conversation when they were about 12.  M asked A why the appellant had called her into the lounge.  A told M it was to suck his penis.  M said she had to do the same thing.  They never really spoke about it much afterwards.[79]
  2. [103]
    A said the appellant referred to the sexual activity by the “code name” of “fruit salad.”  He’d say “oh, do you want some fruit salad”.[80]  He came up with that code name because A liked fruit salad.[81]
  3. [104]
    She could not remember the conversation M referred to, when the girls were at the appellant’s work.
  4. [105]
    She was asked whether the word “minutes” meant anything to her and she said that that was the word used when they “first started”.[82]  It had not been used for a while, but the appellant used to say “do you want to do some minutes for me later”.[83]
  5. [106]
    She was asked about the day the complaint was made.  She said:[84]

“… I was in my last class, physical education, and all of a sudden I was called out of class … the guy that came and got me, he was like, we have M in the office um just about some stuff and then next thing, I went into the office and my sister told me what was going on.  And like I didn’t really know what to think, like I was just, I was scared, I was stressed and everything … ‘[c]ause I’ve got a lot going on … [I was scared about what the appellant was going to say] … and then we basically sat in our Principal’s Office waiting for Mum to get there and while we were there, I asked for our chappy … She knows me really well … And she basically came and sat with us until Mum got there … M had her best friend, that’s basically like a sister and she told her earlier that day … And then that’s when it all started.  And then um when my, when the chappy got there, M told her as well.”

  1. [107]
    She agreed that M had told people for her.
  2. [108]
    A was asked additional questions by the prosecutor during her pre-recorded evidence.
  3. [109]
    A moved back in with her mother when she was 11, but returned to the appellant when she was 12.
  4. [110]
    She did not want any of the sexual activities to take place:[85]

“I – sometimes I did say no, and when I was giving him head jobs, I was resisting with my head … [When I said no] [h]e got cranky with me and he wouldn’t talk to me, and I would get extra jobs to do around the house … [At times when I said no, he would go ahead and make me give him a head job but] [n]ot all the time.  [When I was physically resisting] he was trying to push my head in, and I kept pushing it back … I kept resisting back from it … I did that all the time when it happened.”

  1. [111]
    On the occasion associated with A’s chemistry assignment, she was resisting with her head and the appellant was putting pressure on it.  She was resisting similarly on the occasion associated with MO dropping M at school for her Diploma.  On the last occasion, A was resisting “as well as giv[ing] him oral sex because that’s what he wanted”.[86]
  2. [112]
    It is apparent from the foregoing that A was alleging abuse which had been continuing for years.  However, apart from the occasion which formed the basis of count 5, her evidence about the appellant’s sexual contact with her, before she was 16, was in general terms.
  3. [113]
    She recalled that she was about 11 on the first occasion of abuse, although she said she could not really remember “back to when [she] was that young”.[87]  Her description of the abuse she (and M) experienced at the time suggested that it was regular.  She said:[88]

“… it was me, M and Dad living at home.  There was no one else with us … And Dad was making us, both M and I do it at that time.  But like I had, I didn’t know what was going on or anything … So basically, he’d like send like one of us to like our room or something … And then he’d get us to give him a head job and then he’d tell us to go get, like, he’d tell me to go get like M.”

  1. [114]
    She said that the appellant said “a couple of times” during “the period” that they would both get in trouble if she were to tell anyone about the abuse[89] – suggesting abuse on more than one occasion.
  2. [115]
    A said that “it” happened “over fifty” times between the first time, when she was 11, to the last time, which was the week before her interview with police.[90]
  3. [116]
    She referred to a conversation with M when they were 12 during which M asked her why the appellant made M stay in her room, and why the appellant had called her into the lounge room.  She told M that the appellant called her into the lounge room to suck his penis, to which M replied that when she was “called out” she had to do the same thing.[91]  Thus, it may be inferred that there was at least one occasion of oral sex when A was about 12.
  4. [117]
    A spoke about the appellant’s use of the phrase “fruit salad” as code for oral sex.  There was no evidence that the appellant referred to “fruit salad” in relation to the events the subject of counts 10, 11, 12 or 13 – suggesting that he had used that term in relation to unlawful sexual acts which occurred when A was under 16.

Cross-examination of complainant A

  1. [118]
    Under cross-examination, it was established that –
  • the appellant was very strict most of the time – but sometimes he was not;
  • he would punish A for the smallest things; most of the time, the punishment was extra chores;
  • there would be physical smacking – quite often – with a hand or a wooden spoon, including on occasions where A did not eat her lunch at school;
  • M “copped” more physical and verbal aggression than A because M stood up to the appellant more than A would; sometimes the fights between M and the appellant were far worse than the fights between A and the appellant because M was standing up for herself;
  • the appellant struck A on the backside on a number of occasions; he also struck her on the shoulder and leg;
  • police were called to the school on three occasions when A was between grade 1 and grade 4, because of her bruising; A always told the police the truth about what had happened;
  • A knew her mother loved her and she trusted her mother 100 per cent; A knew S loved her and she trusted S 100 per cent; A knew MO loved her and she trusted MO 100 per cent;
  • A was close to the chaplain Heather; A was close to the other chaplain (Neil), the principal, her teachers and the guidance officers; A had after-hours contact numbers for some of them; A had sometimes been encouraged to call at any time if something was not going right in her life; A knew the police were there to protect her in general;
  • the only specific incident A could recall during the maintaining period was an occasion of oral sex while the appellant was in his recliner;
  • A wanted to talk to M about the oral sex because it was a strange thing – not because A thought she had done anything wrong;
  • the first time she spoke to M about it, M confirmed that the same thing was happening to her;
  • A asked M what she had to do when she went to see the appellant and M said she had to suck his penis; A confirmed with M that she had to do the same thing; they only spoke about that one time – they did not speak about any other incidents; A and M did not decide between themselves what they would do if it happened again;
  • although A and M were twins, A described their relationship as “not the best”;
  • A could only remember one occasion on which she and M went to the appellant one after the other;
  • while living with her mother, A had minimal contact with M;
  • A was unable to recall a specific occasion in 2013, 2014 or 2015;
  • she was able to remember three occasions in 2016;
  • nothing stopped A from talking to her sister or MO about the appellant’s conduct;
  • A was “well aware” by 19 May 2016 that M “hated” the appellant because of their constant fighting; A would support M in any way possible;
  • M was the one who indicated, in front of her friend, that she and A had been sexually assaulted; when it was put to A that she “just agreed” she said “I agreed because it was true”, but she acknowledged that she nodded rather than verbalising her agreement;
  • A did not discuss with M what happened before they were spoken to by police;
  • A appreciated the seriousness of the allegations and knew that she was “stuck with her story” otherwise she’d get into very serious trouble.
  1. [119]
    In re-examination, it was established that A had spoken to M on two occasions about the abuse.  One occasion was that mentioned in her cross-examination (when they were about 12), and another occasion was that mentioned in her section 93A interview, when they were about 15, and doing their washing.
  2. [120]
    Although she could not remember specific incidents in 2013, there were a couple of sexual incidents a month.  It was the same for 2014.  It became more frequent in 2015.

Examination in chief of J (the person to whom M made a preliminary complaint)

  1. [121]
    J said[92] M looked angry that day (19 May 2016).  She told J she was thinking of moving back to her mother’s house.  J asked M whether the appellant was getting violent, and M said “we’re bickering and I don’t really want to be there anymore”.
  2. [122]
    M said she might talk to chappy Heather about it.  While they were waiting for the chaplain the following conversation occurred:

“I said, so what are you gonna tell her? And she said, I’m just gonna ask her what I should do regarding my living situation.   And I said, okay and she said have I told you the full story?  And I said, what do you mean the full story, all I know about is about the violence and verbal abuse.  And she said, well there’s other abuse and I said, sexual.  And she, then the chaplain came and she just cut off conversation and she went in to talk to the chaplain.  She kind of just explained to the chaplain that it was all violent, and she didn’t want to be there anymore.  And because I did not know the full extent of the sexual [abuse], I didn’t bring anything up.”

  1. [123]
    The chaplain spoke about ensuring M was in a safe environment and J suggested M might want to speak to the guidance officer, so they made an appointment.
  2. [124]
    J said M “spilled everything” with the guidance officer:

“She said that her Dad’s been doing this since they were 11 and not only to her but to her sister … ever since 11 it’s been happening to her and her sister and that, the last time it happened was last week … and that’s when the guidance counsellor called the police.  She also told her Mum via my phone … via text.”

  1. [125]
    A little later she said:[93]

“… M asked the guidance counsellor to get A out of class because [M’s mum with whom M had spoken] was going to pick both of them up from Caboolture.  And when we were in the office, we were waiting for A to come, A didn’t know what she was being called up for.  She just thought it was something to like do with the chaplaincy or something ‘cause she’s very involved with the chaplaincy.  And she walked in and M and I were sitting at like a massive table … And M said to her, I’ve told her what, I’ve told school what Dad’s done to us.  And she broke into tears and said, why’d you do this.  I was, I’m under so much stress right now.  Right now’s not the right time … I asked A if she wanted the chappy to come in and she said, yes.  So I went and got the chappy, and then I came back and sat down and M said, it was better for us to do it now, we didn’t want I to get caught up in this and that um it’s all over now, we don’t have to worry about it anymore.  And then, the chappy came in and kind of asked why M didn’t tell her, like straight away, when we were in the session with the chaplaincy.  And um, M said, she she didn’t feel it was the right time and then um, the chappy kind of asked when the last time he made … [her do it].  And she said, um, last week and then she looked at A and A said, last week.  And then the chappy just got upset because A and her are very close.  And she said, why didn’t you tell me, like I thought you could tell me anything, kind of thing.  And she was like, I just didn’t know how to tell you and then it was just her crying hysterically and the chappy trying to calm her down.”

  1. [126]
    The complaint included that the appellant had been making the complainants give him blow jobs since they were 11 and had forcefully fingered both of them without their consent.
  2. [127]
    Under cross-examination, it was established that –
  • M and J were best friends; they were very close and discussed personal matters;
  • M has a strong will; can be quite fiery; does not back down in arguments or fights;
  • M does not “cop anyone’s rubbish”;
  • J heard from M about the big and little fights she’d had with the appellant;
  • the appellant was verbally and, although not during every fight, physically abusive;
  • M would use the F word to describe the appellant in this context;
  • on 19 May 2016, M was very angry with the appellant;
  • she became more upset (rather than angry) as the day went on;
  • M was unable to contact her mother by phone until the second half of the day;
  • M had not complained to J about sexual abuse until 19 May 2016;
  • J asked M whether there had been sexual abuse and M responded;
  • M and A had no private discussion – J was there too;
  • M was doing the talking on behalf of them both – which included an allegation of fingering – to which A nodded in agreement.
  1. [128]
    In re-examination, it was established that when M told A what she had disclosed, A started “bawling her eyes out”.

Other testimony

  1. [129]
    M and A’s mother, RP, gave evidence that included that she had received a text message from M on 19 May 2016 which read:[94]

Daddy’s forcing me to give him sexual pleasure since I was 11 – giving him blowjobs and everything.”

  1. [130]
    MO gave evidence that the appellant disciplined the twins “strict[ly]” and would “smack them quite hard or give them the wooden spoon … weekly”.[95]  MO observed injuries to M including a “red mark on her face … some marks on her arm”.[96]  She heard A “cry” and “yelp”.[97]  The reason given by A and M for moving in with their mother (in 2012, and 2015 respectively) was “the discipline”.[98]  She agreed that the appellant had an “anger management problem”.[99]
  2. [131]
    MO never heard the appellant speak with M about “minutes,” but “he was always joking with A that she loved her fruit salad … He used to cut up fruit salad for A all the time, and he used to say ‘A loves her fruit salad.’”[100]
  3. [132]
    There were times when she was out of the home and the complainants and the appellant were alone together.[101]  She had never seen the appellant indecently touch either of the girls.[102]  Because of his diabetes, the appellant needed Viagra to achieve an erection.  It took between two and 10 hours for the erection to “kick in”.[103]
  4. [133]
    The deputy principal at the complainants’ school confirmed that she had attended the principal’s office on 19 May 2016 and heard M explain that sexual abuse by her father “had been carried out for a while … That oral sex had been performed.”  She recalled A being “too upset” to speak, but said she was “nodding in agreement”.[104]
  5. [134]
    The school guidance officer said that M and J met with her at 1 pm on 16 May 2016.  She said:[105]

“M told me that she had lived between her mum and father’s house.  And then she stated that her father had been making her perform oral sex for him since she was about 11 years of age.  She stated that at times he does become physical, and that recently he had grabbed her by the wrist and attempted to choke her.  She told me she was afraid of him.”

  1. [135]
    The guidance officer did not have any direct conversations with A about the sexual abuse.[106]
  2. [136]
    The school chaplain said that she was called to the principal’s office at 2 pm on 16 May 2016 – A had requested her presence:[107]

“M told me that for the past – since she was the age of 11, her father had been asking her to perform oral sex on him… She also said that the last occurrence was a week ago.”

  1. [137]
    The chaplain had a conversation with A:[108]

“… she said it’s been happening to me, too, for the same period of time … She said that if – because I asked why they didn’t feel that they could tell me, and she said that she didn’t know how to and that she would get into trouble.  Dad had told her that they would be in trouble, too, if they ever said anything.”

  1. [138]
    The appellant did not give evidence or call any witnesses at trial.[109]

Review of the evidence

M’s evidence

  1. [139]
    I found M’s evidence compelling and believable.  Its general tenor reflected her resignation to, and exasperation about, having to comply with the appellant’s sexual requests of her, in order for her to be permitted to do or have the things she wanted.  I did not detect exaggeration or embellishment in her description of the sexual acts.
  2. [140]
    Against the background of the appellant’s obvious authority in the household, I found that M described, in an inherently credible way, the appellant’s sexual abuse of her under the pretence of “education”.  It was just as credible that, as she grew older and stronger willed (as the evidence revealed), he bartered with her – requiring her to sexually gratify him in exchange for his allowing her to have something or to do something.
  3. [141]
    I found M’s description of her reluctant submission particularly believable.  I considered there to be nothing unexpected in the things that M valued in exchange for which she was prepared to submit to sexual abuse, having regard to her age and bearing in mind that she was resigned to the abuse.
  4. [142]
    Additionally, I found the following aspects of M’s evidence particularly persuasive:
  • the abuse commenced when the appellant was without an adult sexual partner;
  • the abuse commenced under the pretence of educating M and escalated in a way which continued the education ruse;
  • M’s referring to the appellant’s reference to an Asian woman he dated when he was younger was a detail which was unlikely in a fabricated complaint;
  • her description of the bartering involved;
  • her description of her reasoning, in an age appropriate way, to the point of resigning herself to the abuse (as she signified by her use of the expression “fine”);
  • her description of the appellant’s parental authority and control over her;
  • the appellant’s use of the word “minutes” as code for sexual conduct – an expression which would be unexpected in a fabricated complaint;
  • with respect to counts 14 and 15, the most recent incident of abuse –
    • her description of the appellant’s use of the phrase “get your nips out”;
    • the detail she was able to give about the pyjamas she was wearing;
    • the detail she was able to give about the way in which she leant over the appellant to facilitate his using his tongue on her nipples;
    • the description she gave of the way in which the appellant exposed his penis on that occasion; and
    • her explaining that he pointed to his penis without speaking and that she knew what to do;
  • the detail with which she was able to describe the end of grade 9 excursion and her decision to comply with the appellant’s request;
  • her frankness about her own personality; and
  • that she still wanted something to do with the appellant – she just did not want to live in his household any more.
  1. [143]
    I did not consider cross-examination to have detracted from M’s credibility or reliability.  I considered M to have given reasonable explanations for the eventual timing of her disclosure.  I considered her concessions – about her personality, her limited conversations with her sister, and the number of women in whom she was able to confide, but did not – to have enhanced her credibility.  M’s credibility was bolstered by her preliminary complaint to J and other members of school staff.  Her allegations found support in A’s “similar fact” evidence.

Similar fact evidence

  1. [144]
    With respect to the similar fact evidence, as it applied in the case of each complainant, I am satisfied that there was no real risk that the evidence of M or A was untrue by reason of their collusion or concoction.  The complainants’ evidence did not have the flavour of collusion about it.
  2. [145]
    The similarities in their complaints satisfied me that there was no other view of the evidence of each complainant than that it was true.  The similarities included that –
  • the girls were twins in the same family;
  • the appellant began to abuse them at the same time;
  • the appellant used a similar approach (at least in the early stages of his abuse of them both) in which he suggested that he had something to tell them or show them;
  • they were both required to perform oral sex on the appellant during which he ejaculated into their mouths;
  • they performed oral sex on the appellant in the lounge room (as well as in other rooms);
  • they spat the ejaculate into the sink and rinsed it afterwards;
  • the appellant used the code “minutes” with them both, and asked the complainants if they were “ready” before the activity;
  • at least on one occasion (each) the appellant was seated while the complainant performed oral sex on him (count 5 and count 15);
  • the appellant told them both that, were they to tell anyone, he and they would be in trouble;
  • at the end of some episodes of their own abuse they were asked to get the other complainant for the appellant; and
  • the appellant became petulant if they refused – in M’s case, telling her not to ask him for anything ever again; in A’s case, not speaking to her, or adding to her chores.
  1. [146]
    I found that the differences in M and A’s descriptions of the appellant’s abuse of them were credibly in line with their different personalities.  Indeed, the differences in their descriptions reflected, in my view, the lack of collusion between them.
  2. [147]
    A was the more compliant twin – there was no need for the appellant to pressure her or barter with her.  From A’s perspective, the appellant’s parental authority, in the context of his having groomed her from a young age to engage in sexual activity with him, was enough to achieve her compliance.  Also, A was manipulated by the appellant not speaking to her or adding to her chores were she to refuse.
  3. [148]
    M was not as likely to be influenced by the appellant’s silent treatment.  In her case, the threat of withholding things was necessary to secure her compliance.
  4. [149]
    I did not consider any difference between the evidence of M and A about whether or not the appellant was circumcised to detract from M or A’s evidence.  At best, M was uncertain.
  5. [150]
    I did not consider the fact that M and A recalled differently the number of, and content of, their conversations about the appellant’s sexual abuse of them to detract from the evidence of either.  They were not close.  The abuse had been normalised.  It was, in effect, their lot.  There was, from their perspective at the time, nothing they could do about it.  It is not surprising that their conversations about the topic were limited.  Nor is it surprising that they each remembered the conversations differently.

A’s evidence

  1. [151]
    I found A’s evidence compelling overall.  Its understatement rendered it particularly credible.  I considered it believable that the appellant was able to secure A’s compliance by getting “cranky” with her; not speaking to her; and adding to her chores.
  2. [152]
    A’s descriptions of the most recent occasions of abuse included such believable details as the blinds in her room being down and her stress over her chemistry assignment.  Also, the details that the appellant told her he needed to “talk” to her and asking her whether she was “ready”; echoing the detail of M’s complaints, added to the plausibility of her complaint.  Indeed, the appellant asking A (and M) whether they were “ready” reinforced their evidence about the way in which they had been conditioned to accept the appellant’s sexual mistreatment of them.
  3. [153]
    A’s acknowledgement that on some occasions the appellant, in effect, accidentally touched her breasts added to her credibility.  Further, A’s allegations had the benefit of the “strength in numbers” provided by M’s similar complaints.

The maintaining offence - A

  1. [154]
    I have considered whether A’s general evidence about the appellant’s sexual treatment of her was of sufficient quality to enable the jury to find the appellant guilty of maintaining an unlawful sexual relationship with her beyond reasonable doubt.  I am satisfied that it was.
  2. [155]
    The maintaining offence created by section 229B of the Criminal Code was designed to accommodate the reality that many children who have endured repeated acts of sexual abuse are unable to differentiate between those acts and unable to particularise them sufficiently for the purposes of a charge on an indictment: see R v CAZ.[110]  In the present case, A gave convincing evidence that she had been the victim of the appellant’s sexual abuse even though she was only able to distinguish one act of sexual misconduct from the many other such acts committed upon her during the maintaining period.  The lack of particularity in her evidence was anticipated by section 229B.  I have identified above A’s evidence of the unlawful sexual acts committed during the maintaining period.  While somewhat limited, it was open to the jury to find that in addition to count 5, the appellant committed at least one other unlawful sexual act upon her during the maintaining period (involving oral sex or breast touching).  Additionally the jury was entitled to conclude that A’s evidence established that the appellant maintained a sexual relationship with her over that period.

The element of lack of consent

  1. [156]
    I gave particular consideration to whether there was evidence of sufficient quality of lack of consent where that element was relevant.
  2. [157]
    Section 348 of the Criminal Code provides:

348 Meaning of consent

  1. (1)
    In this chapter, “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
  1. (2)
    Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained –
  1. (a)
    by force; or
  1. (b)
    by threat or intimidation; or
  1. (c)
    by fear of bodily harm; or
  1. (d)
    by exercise of authority; or
  1. (e)
    by false and fraudulent representations about the nature or purpose of the act; or
  1. (f)
    by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”
  1. [158]
    What it means to freely and voluntarily consent was considered in detail by Muir JA in R v Winchester.[111]  At [75] his Honour observed that while subsection (2) set out the more obvious matters which may interfere impermissibly with the giving of consent, subsection (2) expressly provided that it did not limit subsection (1) and did not purport to define exhaustively the circumstances in which a consent will be deemed not to be free and voluntary.
  2. [159]
    His Honour accepted that the words “freely and voluntarily” were everyday words of plain meaning.  His Honour found Campbell J’s discussion of their meaning in Tonkiss & Anor v Graham & Ors[112] useful.  In that discussion, Campbell J said:

“… whether an action is in fact free and voluntary depends on the interaction of the constraining circumstances with the particular actor.

As well, a person could fail to act “freely and voluntarily” for reasons which were to do with their own mental capacity or condition, rather than because of some constraining external circumstances.”

  1. [160]
    The need to focus on the will of the complainant was also emphasised in R v Motlop.[113]  In that case, the appellant submitted[114] that convictions for rape were unreasonable because the complainant’s evidence, that she submitted to acts of intercourse out of fear following earlier assaults upon her by the appellant, had to be viewed against the background that there was no evidence that those assaults were in any way related to a request or demand by the appellant for sex.  Nor was there evidence that their relationship involved the appellant’s use of violence to dominate or overcome the complainant’s exercise of free will in respect of sexual intercourse.  In response to that submission, Boddice J said:[115]

“The appellant’s submission there must be a temporal connection between infliction of acts of violence and the obtaining of consent is not supported by any authority.  It is also inconsistent with the concept of consent in rape.  The issue of consent is not determined by reference to the intention of the person inflicting the violence.  The issue is whether consent was freely and voluntarily given by the complainant.  That involves a consideration of whether the consent of the particular complainant was obtained or induced by the conduct in question.”

  1. [161]
    In Winchester, where the issue was whether there had been free and voluntary consent to sexual intercourse by the complainant who had been promised a horse by the appellant, Muir JA emphasised the need to consider all relevant circumstances.  His Honour said:[116]

“Whether the consent of a promisee entering into sexual relations after a promise or offer of the kind referred to … above [that is, a promise or offer which is part of normal social interaction] can be considered not to be “freely and voluntarily given” will depend on whether, having regard to the circumstances in which the promise or offer is made and characteristics of the offeree such as her intellect, maturity, psychological and/or emotional state, the offeree is to be regarded as not having exercised her free choice.”

  1. [162]
    In the context of a case of this kind, voluntariness is not to be determined by reference to some hypothetical standard: it requires a careful assessment of the actual circumstances of the case upon the will of a complainant.  In some circumstances, it will be necessary to have regard to the particular characteristics of the complainant, including their age, background and psychological condition.[117]
  2. [163]
    In the present case, M gave evidence about having “no choice” but to submit to sexual abuse.  A described her head being forced onto the appellant’s penis as he controlled it.
  3. [164]
    M said that she was scared of the appellant.  She described him as really intimidating and scary.  He had been very violent since she was young and there was unchallenged evidence of the harsh physical discipline he inflicted upon both complainants.  Indeed, evidence that the appellant had inflicted bruises upon the complainants warranting police attention was introduced by the appellant in his counsel’s cross-examination of M and A.
  4. [165]
    It is without question that the appellant had authority over both complainants which was manifested in different ways.  It was through the exercise of his authority that he secured their compliance as younger children, and he continued to exercise his authority over them to secure their compliance as they grew older.
  5. [166]
    In addition to harsh discipline, in the case of M, the appellant used bribery and manipulation in the context of his authority or power to permit or refuse M’s requests.  In the case of A, the appellant manifested his authority by his displeasure and by adding to her chore load.
  6. [167]
    I have considered whether, on the occasions when M was over 12 and performed oral sex on the appellant in “exchange” for his permission to do something or go somewhere, she could be said to have freely and voluntarily consented to performing that act.  I consider that it was open to the jury to conclude, beyond reasonable doubt, that both complainants had long been deprived of any free will when it came to submitting to the appellant’s sexual demands of them.  They had been groomed from a young age.  He was a violent parent.  He held authority over them and they had no other place to go which was, for them, better than his house.
  7. [168]
    In addition to the appellant’s use of force upon A as she performed oral sex on him, A was groomed from a young age; the victim of the appellant’s violence; subject to his authority; and manipulated by his getting cranky with her or requiring her to do more chores around the house if she did not consent.  It was open to the jury to conclude that she did not freely and voluntarily consent to any act of rape or indecent assault.
  8. [169]
    A defence under section 24 of the Criminal Code was left to the jury.  In my view, it was not reasonable for the appellant to believe that his daughters were consenting to his sexual abuse of them in all of the circumstances of the case.  He was violent, authoritarian and manipulative.  It was open to the jury to be satisfied beyond reasonable doubt that any defence under section 24 of the Criminal Code had been negated.

Inconsistencies and matters raised by the appellant

  1. [170]
    The appellant’s counsel’s address to the jury was forthright.  He called complainant M a vindictive liar.  He attacked her complaint as implausible and highlighted for the jury the features of it which he considered made that point.  He claimed A’s account had no support and ought not to be accepted.  He pointed out inconsistencies in the evidence.
  2. [171]
    Counsel’s arguments were matters for the jury, as was the evaluation of the impact of the inconsistencies in the evidence.

Conclusion

  1. [172]
    It was open to the jury to accept the evidence of each complainant as credible and reliable.  Their testimony, in the context of the whole of the evidence in the case, provided sufficient evidence of every element of every offence on the indictment.  Accordingly, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of every offence with which he was charged on the indictment before them.
  2. [173]
    I would order that the appellant’s appeal against his convictions be dismissed.

Footnotes

[1]  RB 200, 25-28.

[2]  RB 227, 11-15.

[3]  Paragraph 69.

[4]  Transcript of appeal hearing, 1 – 4 lines 43 – 47; 1 – 5 lines 4 – 9.

[5]  (2016) 258 CLR 308 at [65] – [66].

[6]  Appellant’s outline, paragraph 70.

[7]  RB 293, 10-20.

[8]  Ibid.

[9]  RB 293, 20-30.

[10]  RB 295. 50-60.

[11]  RB 293, 30-50

[12]  RB 296, 20-30.

[13]  RB 299.

[14]  RB 302, 1-2.

[15]  RB 297, 10-20.

[16]  RB 297, 1-10.

[17]  RB 301, 25-30.

[18]  RB 293, 30-50.

[19]  RB 301, 40-50.

[20]  RB 302, 10-30.

[21]  Ibid.

[22]  RB 303, 20-42.

[23]  RB 305, 10-25.

[24]  RB 306, 50 – 307,10.

[25]  Ibid, 40.

[26]  RB 323, 1-10.

[27]  RB 307, 20-40.

[28]  RB 305, 58-60.

[29]  RB 305, 30-50.

[30]  RB 307, 50-60.

[31]  RB 308, 57 – RB 309, 20.

[32]  RB 309, 50-60.

[33]  RB 310, 1-5.

[34]  RB 310, 35-55.

[35]  RB 322, 20-35.

[36]  RB 311, 1-20.

[37]  RB 312, 34-60.

[38]  RB 316 – 320.

[39]  RB 324, 45 – RB 325, 1-10.

[40]  RB 325, 10 – 40.

[41]  RB 325, 10-40.

[42]  RB 326.

[43]  RB 327, 10-12.

[44]  RB 329, 30-40.

[45]  RB 305, 20-30.

[46]  RB 323, 30-32.

[47]  RB 327, 8.

[48]  RB 331.

[49]  RB 328, 33 – RB 329, 10.

[50]  RB 327, 40-60 – RB 328, 1-5.

[51]  RB 331, 1-10.

[52]  RB 330.

[53]  RB 322 – 323.

[54]  RB 323, 5-25.

[55]  RB 320, 18.

[56]  RB 320, 30 – 321, 40.

[57]  RB 20, 10-25.

[58]  RB 21, 1-10.

[59]  RB 21, 10-35.

[60]  RB 350, 18-40.

[61]  RB 351.

[62]  RB 352, 40-55.

[63]  RB 353, 38 – 354, 10.

[64]  RB 355, 30-42.

[65]  RB 354.

[66]  RB 356.

[67]  RB 357-358.

[68]  RB 359, 18-20.

[69]  RB 360, 19 – 20.

[70]  RB 361, 40-55.

[71]  RB 363, 48-56.

[72]  RB 362, 48-55.

[73]  RB 364.

[74]  RB 365, 45 – 369, 20.

[75]  RB 369 – 370.

[76]  RB 371.

[77]  RB 372, 1 – 30.

[78]  RB 373.

[79]  RB 374.

[80]  RB 374, 5 – 40.

[81]  RB 375, 35-40.

[82]  RB 376, 30 – RB 377, 10.

[83]  RB 377, 1-10.

[84]  RB 377 – 378.

[85]  RB 67.

[86]  RB 68.

[87]  RB 356, 18-20.

[88]  RB 356.

[89]  RB 359, 1-20.

[90]  RB 365, 30-40.

[91]  RB 374, 1-25.

[92]  RB 382 – 383.

[93]  RB 389, 10-51.

[94]  RB 124, 5-10.

[95]  RB 129, 20-25.

[96]  RB 129, 30 – 35.

[97]  RB 130, 15-20.

[98]  RB 133, 12 and 24.

[99]  RB 136, 20-23.

[100]  RB 134, 1-14.

[101]  RB 134, 27-30.

[102]  RB 134, 30 – 35.

[103]  RB 136, 40 – RB 137, 10.

[104]  RB 142.

[105]  RB 143, 40-50.

[106]  RB 144, 23-24.

[107]  RB 147, 40-44.

[108]  RB 148, 1-10.

[109]  RB 149, 1-2.

[110]  [2011] QCA 231, at [44] – [45].

[111]  [2011] QCA 374.

[112]  [2002] NSWSC 891 at [78] – [79].

[113]  [2013] QCA 301.

[114] Inter alia.  Ibid, at [30].

[115]  Ibid, at [42].

[116]  Op cit, at [85].

[117]  See Muir JA in Winchester, referring to Brennan J’s judgment in Collins v The Queen (1980) 31 ALR 257 at 307.

Close

Editorial Notes

  • Published Case Name:

    R v HBU

  • Shortened Case Name:

    R v HBU

  • MNC:

    [2018] QCA 346

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Gotterson JA, Ryan J

  • Date:

    11 Dec 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC908/17 (No Citation) 30 Nov 2017 Date of Conviction (Smith DCJA).
Appeal Determined (QCA) [2018] QCA 346 11 Dec 2018 Appeal against conviction dismissed: Sofronoff P and Gotterson JA and Ryan J.

Appeal Status

{solid} Appeal Determined (QCA)