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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v BDF  QDC 37
132 of 2018
District Court at Southport
11 March 2020
17 – 20 February 2020
Kent QC DCJ
The defendant is convicted of:
-One (1) count of indecent treatment of a child under twelve (12) being a lineal descendant, under care;
-Three (3) counts of rape;
-One (1) count of depravation of liberty; and,
-One (1) count of maintaining a sexual relationship with a child under sixteen (16).
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – GENERALLY – where the defendant did an act that aided, counselled and or procured the commission of the offence – where the defendant was the principle offender – where the defendant was the complainant’s mother.
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – MAINTAINING SEXUAL RELATIONSHIP WITH A CHILD AND PERSISTENT SEXUAL ABUSE OF A CHILD – where the defendant repeatedly allowed unlawful sexual acts to performed on the complainant within the charged period – where the defendant restrained the complainant during the unlawful sexual acts – where the defendant unlawfully deprived the complainant of her liberty.
CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – Where the trial was a retrial – where the defendant was acquitted of some counts after the first trial – where a no jury order was made because evidence of acquitted counts would be before the jury – where the judge directed himself as to the admissibility of the evidence of the acquitted counts.
G Churchill for the Crown
J McInnes for the defendant
Office of the Director of Public Prosecutions for the Crown
Legal Aid Queensland for the defendant
- The defendant is charged with three counts of rape, indecent treatment of a child under 12, a lineal descendant, under care, one count of deprivation of liberty and one count of maintaining a sexual relationship with a child under 16. The matter has returned to this court after a previous trial, in which the defendant was acquitted of some counts. The former count 1 was not proceeded with, for reasons explained at the commencement of the trial. At this trial, the defendant pleaded not guilty to the remaining live counts. Particulars of the counts are set out in a document which is Exhibit 1.
- The evidence of the complainant, who is the defendant’s biological daughter, was contained in a number of recordings. The first of these was an interview with the police on 5 August 2016. In that interview, the complainant was not very forthcoming, it seems, as she explained, possibly partly because the investigating detective was a male, which was not the complainant’s preference.
- In that statement the complainant said that some things had been done to her by her mother at a time when her father was away from the house – he had spent some time in prison. This dates the offences as having been alleged to have occurred between May 2014 and May 2015, when the complainant was 9-10 years of age. The introductory explanation was that her mother used to come into her room with other people, wake her up and do naughty things. She said that this happened for ages. She said it was always someone different, and that her mother behaved very inappropriately. She took off the complainant’s clothes. She was naughty, but the complainant did not want to say how. The first of the male persons she described was a tall man with brown hair, although she first saw him in the dark.
- The complainant said that her mother dressed her up. She said that it happened a lot, primarily, it seems, in the complainant’s bedroom. Some things occurred in the garage, where there were beds at one stage and the complainant had slept in there at times. She said that her mother had told her not to speak to anyone about these things.
- Five days later on 10 August 2016 the complainant had a second interview with the police, this time the investigating detective was a female and the complainant was much more forthcoming.
- The complainant’s first broad description was that at night time, her mother came in with another person, dressed her up in weird clothes and held her down while she was raped. She said that the first time this activity occurred (count 2), the complainant went into the garage where she saw two males with her mother. One was a tall man with brown hair, and the other was shorter and skinny. They looked drunk.
- The complainant said that these matters occurred after her father went to jail. She gave a description, particularly of the taller man. She also described the second, smaller man, and thought his name was “Colin”. I do not understand these people ever to have been identified by investigating police. The complainant described her mother in the garage leaning against a bench with her elbows on it, wearing nothing, while the tall man was having sex with her from behind.
- The complainant described private parts as being, for both a girl and for a boy, the “front one”. She said that the tall man’s front part was in her mother’s front part. The other man was on the other side of the table kissing her.
- The complainant said that her mother told her to go back to her room. The people did not stop what they were doing. She went back to her room and went to sleep. This was at about 11.30pm. She said that she’d woken some time later when it was apparently around sunrise. Her mother was holding her hands while the tall man was on top of her having sex with her. She was told to drink something and whatever she drank, which tasted unique, made her feel woozy and go back to sleep. Her mother gave it to her from a glass. She described the sexual activity as the man’s front private part going in and out of her private part. It hurt. She said her mother was holding her back. She had no clothes on when this was happening.
- The complainant said that the next morning she was in her bed and back in her pyjamas. Her sisters were at her grandparent’s house. She watched TV. All of her body hurt, including her private parts.
- She then described the second time as occurring in the same way, and her mother doing the same thing, but she was not given a drink on this occasion (Count 3). It was someone different taking part, not the tall man. He had a dark, deep voice.
- The next time it occurred, she described waking up in her bed with a “playboy outfit” on which was black and white in colour. She was in her bedroom. She said the people present had things like whips. She did not know how her clothes were changed. She said the man was over the top of her with his private part in her mouth (Count 4). Her mother was licking the complainant’s vagina at the time (count 5). The complainant felt like she was choking.
- The complainant said that on this occasion she was tied up to the corners of the bunk bed using rope (count 6). She also said that her mother had a suitcase full of DVDs. She said that she woke up the next day still tied up and was not released by her mother until dinner time, having been tied up all day without any food or ability to go to the toilet.
- The complainant said there was another occasion when her mother made her watch a DVD which showed girls doing things like what her mother was doing to her. She said that her mother described this as porn. She said that she was eight or nine years of age at the time. This is a count of which the defendant was previously acquitted (Count 7).
- The complainant said that the last time it happened was a couple of days before the father got back from jail. On that occasion there were three people involved with her mother. She woke up on her knees and arms in the garage in the dark. She didn’t think she had any clothes on and at the time she thought that eight hands were touching her; that is that there were four people involved. She recalls somebody saying that she should stay where she was or “I’ll shoot you”. She remembers her mother licking her and also people’s private parts being put into hers. She said she woke up after that tied up the garage and again had to stay there until dinner time (this involves counts 8 to 10 of which she was acquitted). She said that every time these things happened she heard her mother asking for money. It happened on a regular basis.
- The complainant said that various people were wearing a condom at times. She recalls a discussion on one occasion about a condom being ripped. She saw a condom packet in the house at one stage. She said that she first got her period in December 2014.
- She later clarified that a man’s private part was referred to as a penis and she wrote down that a female private part was a vagina. She drew a floor plan of the house and other details. She said that there was a period during the time her father was in prison when other people moved into the house. She said that the offending did not occur during this time. The family who moved in included parents and children – this includes C who was a witness. She got on well with them and they gave her a Christmas present. She said that in her bedroom normally she slept on the bottom double bunk.
- The complainant said that she had attended schools including the first school and the second school. She gave details of some of her teachers. She also said that in relation to the skinny person, Colin, he did not take part in the offending. She said that when she went to go to bed they were whispering and she heard one guy say “no” and she thinks that was Colin.
- The complainant’s evidence was pre-recorded, firstly on 9 October 2017. The complainant was by that time 12 years of age. The note which she gave to the psychologist in July 2015 was tendered. This is now Exhibit 6. There are also photographs of the house. The complainant described how she lived with her uncle and aunt, Clifford and Fiona for a period of time, including during the period when her father was in prison. Clifford and Fiona took her to school and also to Nippers at the local surf club, Nobbys. In cross-examination she said that she had been the age champion for two years at Nippers. She had also spent some time with her grandparents, who lived in the same unit complex in Miami as her uncle and aunt. She described how later, after her father was released from prison she and her sisters B and K went to live in Noosa with him. She described how she took part in flag races and also had a bicycle when she lived at Clifford’s house. She said she was at the first school from years 3 to 5 and then moved to the second school.
- The complainant said that there had been a sleepover planned for her 10th birthday at Clifford’s house, however this was cancelled which made her a bit upset. She described the adult pornographic DVD’s which she had seen in the suitcase at the house at Varsity Lakes. She said that she had found the suitcase in a cupboard and the DVD’s had naked people on the covers, having sex. She did not remember bunny ears (as a costume) from the suitcase.
- She said that in the house her mother sometimes walked around in underwear and sometimes naked. She recalled her parents having some fights and her mother being taken away by the police on one occasion.
- The complainant said that her parents had physical fights and at one point her father had asked her to call the police. She said that her mother got some bruises from fighting.
- The complainant said that the Varsity Lakes house was a three-bedroomed house. Her older sister, S, had stayed with their grandparents quite a bit. At Varsity Lakes the complainant had her own room. She gave evidence of the incidents where she was tied up in the garage including to a coffee table, although as mentioned this evidence is the subject of counts 8-10 of which the defendant has previously been acquitted.
- In her second pre-recorded evidence on 12 October 2017 the complainant said that she lives with B, her father and K now at the North Coast. She confirmed that when she woke up in the bedroom at the time of the first incident it was dark. She was in bed, there was someone present as well as her mother. There was a man on top of her hurting her. She said that the man was having sex with her for a long time and during it she passed out. She could feel that she was wearing something made of lace. The next day she woke up in her normal pyjamas. She did not remember who else was home, and did not tell anyone about the incident at that time. She agreed with the suggestion that she woke up the next day thinking she had imagined the episode.
- The complainant said that she knew her mother was present during that episode because she heard her say “everything is OK” about five minutes after the complainant woke up.
- In relation to the second occasion, the complainant described a similar scene where she woke up with someone on top of her. She said that on each of these occasions sexual intercourse took place with penetration of her vagina by the male’s penis. She said that she could feel that it was a penis.
- The complainant gave evidence that her mother had men over for sleepovers. She also said that she saw her mother having sex with a man in the garage once.
- The complainant agreed that she thought having sex with other people was the wrong thing for her mother to do, to have male visitors over. She recalled the party at the house which she had seen on the news. It was put to her that none of the sexual contact with her had happened, rather the only occurrence was that she witnessed her mother having sex in the garage one time with one man. It was put to her that she was making up these other occasions when the men had sex with her and her mother was present, and she rejected that suggestion. She rejected the idea that she had been told by somebody to say that these things happened. She confirmed that she had sex education at school in year 6, which was the previous year.
- The complainant was being treated by a psychologist, Ms Fleming in 2016 and on 25 July 2016 she disclosed to Ms Fleming that her mother had been dealing with her inappropriately in the note which is Exhibit 6.
- Ms K gave evidence. She is the complainant’s grandmother and the mother of the defendant. She now resides in Victoria, however in 2014-2015 she and her husband lived in Miami in a unit complex. Her brother-in-law Clifford and his wife, Fiona also lived in the same unit complex.
- Ms K confirmed that the children had lived with her and her husband at times, and she and her husband had guardianship of the children over a 19 month period at the instigation of Child Protection in about 2013. She recalls the complainant being a student at the first school. On her version the period of guardianship seems to have been during the time that the former husband was in prison; this may not be accurate, it is more likely between about 2011 – 2013 as the former husband said.
- Ms K said that she saw the children frequently including transporting them to and from school and giving them dinner many nights. She confirmed that on the weekends the complainant would often be at Clifford’s house and would be taken to Nippers.
- She said that when she dropped the children home she would not usually go inside the house. She recalls that after the former husband was released from prison there was a party at the house that got out of hand and after that the former husband took the children away. S, the older child, now lives at Coomera.
- In cross-examination Ms K said that the defendant had moved the children from the first school to another one closer to home, as it was more convenient. She said that the complainant was outgoing, bubbly, good at art and sport. She did not notice any change in her behaviour at relevant times and denied that she was exaggerating her evidence to assist her daughter.
- The defendant’s former husband gave evidence. He is now 43 years of age. He was married to the defendant for 16 or 17 years. They have four children together and the defendant has an older child from a previous relationship.
- He had bought the Varsity Lakes house in about 2002 with the assistance of his grandparents. He described the plan of the house, and Exhibit 14 is his diagram. There was an internal door to the garage which opened into the house.
- He confirmed that the he served imprisonment between 13 May 2014 and 12 May 2015. This was in relation to drug trafficking. During the time that he was in prison, some other people moved into the house with his wife and children. As well, the children were moved around somewhat. During his time in custody he saw the defendant about three times and also spoke to her on the phone. He said that he separated from her after a couple of months in prison. She was not working.
- After his release he went to the house and it looked very bad, like the residence, as he described it, of a slob junkie.
- The defendant left the house and after that the former husband put work into repairing it. Later on, he became the carer of the children and received the supporting parents benefit. He moved away after the house was damaged in June of 2015.
- He described how the police had come to the house and apprehended the defendant after she had wrongly tried to get K, the youngest child, away from him. He said Child Safety had been involved and were happy for him to have the children. He retained a lawyer who gave the defendant notice to move out of the house. It was then that she held the very destructive party.
- He said that he went to court and got custody of the children and after that the children and he moved to the Sunshine Coast. This was after he had repaired the house and sold it.
- He said that when they were married, the defendant had some lingerie and bunny ears. There was also pornographic DVD’s in a suitcase kept zipped up in the wardrobe.
- In cross-examination the former husband said that the complainant always had a good relationship with him. She did have some phone calls with him whilst he was in prison. There was one visit when he was in Palen Creek. He felt the complainant was not close to the defendant. The defendant was most of the time heavily medicated. The former husband had been told a lot of different things about her diagnoses. He said that when she was prescribed medication she would often take it within a couple of days, including Xanax. He agreed that in 2011 the kids went to the custody of their grandparents and in 2013 they were returned. He admitted that during those periods he had his own drug problems, which culminated in his imprisonment.
- He said that the suitcase containing DVDs with pornography was kept in the wardrobe high up where the children could not reach it. It was only accessed by him and the defendant late at night and as far as he was aware the children would never have seen those items.
- When he went to court, he pleaded guilty to trafficking in drugs. There was cross-examination as to whether he was consistent about whether he and the defendant were still together as husband and wife at various times, i.e. the date of separation. Clearly, they were physically separated when he went to prison. After that time he made, it seems, at least a mental decision to separate from her, some months into the prison term. When he was released from prison he went to the family home and it seems the parties physically separated sometime after that.
- The witness said that while he was in prison the defendant visited him and the most troubling conversation was when she said that she had met a couple of guys and was having problems in relation to those men concerning drugs, and the men had control of her.
- He agreed that, after release, he and the defendant had conflicts which resulted in domestic violence proceedings. On 26 May 2015, he was in custody for a few hours with police after they attended the house. On 29 May 2015, mutual temporary protection orders were made. It is common ground that in June of 2015 the former husband had a solicitor give the defendant a notice to vacate the premises whereupon the defendant had a party at the house where very substantial damage was done. He was cross-examined on potential inconsistencies in relation to these topics, particularly the separation date, including in affidavits he had sworn for domestic violence proceedings. In my assessment, such inconsistencies as were demonstrated were not of major proportions and not of major significance.
- One area where the former husband was somewhat inconsistent was the amount he paid for the repairs to the house after the destructive party. He had said in an affidavit that he paid $40,000, however he said in evidence at the trial that the bill was actually $80,000. There was also questioning as to whether he paid this or his grandparents paid it. His evidence seemed to be that although he may have personally paid for the repairs he was financed by his grandparents, who had helped him to buy the house. In my view, not very much turns on this in terms of his credit worthiness; and indeed his creditworthiness is not really the central issue in the case.
- The former husband said that the defendant had no contact with the children, ongoing from 22 June 2015. There was a temporary protection order made on 29 June 2015, varying the earlier order of 29 May 2015. In January 2016, he swore an affidavit dealing with some of the background including a history of violence and the defendant’s said to be inappropriate lifestyle. This was an affidavit in the domestic violence proceedings, although it was apparently sworn the day before an appearance in the Federal Circuit Court, related to divorce proceedings. The destructive party at the house had occurred on 28 June 2015.
- Later in 2016, coincidentally on 28 June, the former husband’s evidence was that the defendant succeeded in obtaining an order enabling her to have access to the youngest daughter, K. This seems to have been by way of a variation of the protection order removing K as an aggrieved. He said he wasn’t happy about this and applied to vary it, although he also said that he had offered to arrange contact through the defendant’s mother to see K at an appropriate contact centre, however he didn’t receive any response from that prior to the allegations later surfacing and the criminal investigation commencing. He further explained that he had taken the complainant to the psychologist, Robin Fleming, after a doctor’s referral, on 25 July 2016. This is the date of the first complaint emerging. He said this was the third time she had seen Ms Fleming. He was not present in the room during the consultation.
- He also said that he took the complainant to the police on two occasions in August 2016, after the psychologist had contacted the police. He said that he may have told the complainant about the variation to the order in June 2016 permitting the defendant to have contact with K. He said that his daughters were at an age to say whether they wanted to have contact or not and it was more K that was interested in the contact. He said that after that variation he received no contact from either the defendant or her mother and there was simply no attempt to have contact with any of the children. He said that after the order was made he had a conversation with the defendant at the front of the courthouse suggesting that she have her mother contact him and nothing ensued. Therefore he said there was no pressure on him to go and initiate the further court proceedings or do anything else at that stage.
- The former husband was not aware of the details of the complainant’s complaint to the psychologist. He later found out some details from investigating police. He denied asking B to dig up any dirt on the defendant in the relevant period. He said would have no need to do any such thing as he had seen the defendant’s drug use with his own eyes. He denied making any suggestion to the complainant that she should make this complaint.
- Robin Fleming the psychologist was called, she has been practising for 20 years, and for five years at Headspace Maroochydore. She saw the complainant for five sessions in May to December 2016 every month or second month. She also met one of the sisters and the former husband. She confirmed that on 25 July 2016, which was the second time she had seen the complainant, the complainant made the written disclosure Exhibit 6 (quote). In relation to her demeanour, Ms Fleming said she was anxious, engaging well and grappling with the relationship with her mother and worrying about her elder sister residing with the mother. Her symptoms included problems with sleep and worrying. She also confirmed that the complainant was jealous to a degree about K being prioritised over her by her mother. The complainant identified that at some point she would like some contact with her mother as well.
- Mr K gave evidence. He is the uncle who was living at Miami at the time, although he now lives interstate. His wife is Fiona. He said that the complainant spent a lot of time with he and his wife at their Miami premises. At one stage the complainant began living with them, and then the Department of Childrens’ Services placed her back with her mother. When the complainant was living with them he and his wife would take her to school, make her lunches, take her to Nippers, pick her up from school and start her on her homework, so she was living with them.
- During the 12 month period the former husband was in prison, the complainant wasn’t at her mother’s house very often, often only at weekends. When he dropped her back at the house there was quite often two or three cars there. He said the complainant did not want to go back to her mother’s house and sometimes she would cry. This was during the period that her father was in jail.
- The arresting officer, Justin James Andrejic, gave evidence. He conducted the first s 93A interview. He also executed a search warrant at the defendant’s house but did not find any pornographic DVD’s or other relevant material. He confirmed that none of the men allegedly involved could be located.
- The complainant’s sister, S was called by way of a s 93A recording on 1 November 2016 and her evidence was pre-recorded on 9 October 2017. She is the older sister of the complainant. She has no contact with her now because the complainant lives with her father. She confirmed the fact of the parents’ separation and that her father had served time in prison. She was of course familiar with the house, having grown up in it. She recalls the family which were friends of her sister, B, staying with them for a period of time. There was a bed in the garage. She recalls a friend of her mother’s Travis, who lived around the corner but said that other men did not visit during the time her father was in prison. She said that her mother looked after the children. S was at Miami High at that time. She recalls that the complainant stayed with Clifford and Fiona a lot and her mother and uncle fought somewhat over this. During that time the complainant would only come home about once a week.
- At the pre-recording, she confirmed in cross-examination that the house was wrecked at the party and afterwards her father moved to the north coast with the other children. She had a friend, Paris, who knew her sister B. She gave some evidence about a message sent from B to Paris about her mum and dad being in court and someone trying to set her up. She confirmed that as far as she observed there were not many male visitors while her father was in jail, one or two. She stayed there most of the time but she also stayed at her friend’s houses and her nan’s. She gave evidence of having heard a threat by her father over a phone call where he said “you think you’ve got this well watch what I pull now.” It is not clear to me exactly when this is said to have taken place. As will emerge later in these reasons, I do not find this to be of central importance.
- Another sister, B gave evidence in a s 93A statement of 19 September 2016. She described how Child Safety had been involved and the girls lived with them after the complainant was born. They lived with her nan for a couple of years. They went back home and then dad went into jail and then “mum was good but then she just went crazy again”. She said she was good for the first few months. She was only smoking weed but that she was not on ice or anything at that stage. Then some people came to live with them and that pretty much changed it in the sense that she treated those people as babysitters and would go out at random times of the night. The other family stayed home and cooked dinner and so on. B said that her mother brought over a friend called Kyle who had a knife and a knife sharpener which he was trying to involve B with. She said he was really freaky. She spent time living with her Nan as well as at home.
- She said that the complainant was at her uncle’s also at Nan’s. People were coming and going from the house. There was a man called Dan who was tanned, muscly and big and had a black car. She said that her mother was getting Xanax off him. She said that her mother would get a new box every Tuesday. She would also get Valium and take eight or nine tablets.
- She also said that her mother had a friend called Travis who was weird. He drove a blue van. She gave some details about Travis and misbehaviour by him.
- The people who lived with them were called Grace and Scott and they were nice. They had two children including C. She said they did weed but were good, cooked a dinner for the children and took them to church.
- She said that after her father came back home her mother left and went and stayed with Travis for a time. B went to her nan’s and then she and dad left and stayed in an apartment for a time in Miami. She thought the complainant stayed at Cliff and Fiona’s. She said that her parents were good when they were living together before they went to jail but after that she went crazy on Xanax and everything changed. She said that when Dan and Travis came over to the house they would go into mum’s room and they were going to do a deal. This would be at night time. She was asked whether anyone had told her not to say anything about what happened in the house and said that her mother told her “what happens inside the house stays inside the house”.
- When cross-examined at the pre-recording the message which was allegedly sent to Paris by her was put to her and she denied any involvement with it. She denied communicating with her sister on Messenger and clearly denied that she sent that message. She confirmed that her mother had said “what happens in the house stays in the house”.
- C was interviewed by the police in a s 93A statement. She said that she and her family lived with the defendant and her family on two occasions. She describes the defendant as yelling at the complainant a lot. She also said she had a lot of guys over, sometimes two or three. When this happened she would dress up in a really short skirt and wear makeup. She said that her mother and father stayed in the garage and she stayed in B’s room. She said that the defendant was nice to her although she yelled sometimes. She said that when the guys came over they would go into the defendant’s room for ages. Men would visit every second or third night. This was the period when the former husband was in jail. The defendant had costumes including a black and red one. It was clear to her that the complainant liked it more at her nan’s place. When C was cross-examined she confirmed that the family lived there twice each time for a number of months. She was 12 or 13 at the time. The complainant was not there very often, coming over every second week for a few days. B was there more often. C got on quite well with the complainant and they were quite close but did not share secrets.
- The evidence of Dr Baer, paediatrician, was tendered. It had been given at the previous trial. In essence she gave evidence that on examination of the complainant deep notches were found in the hymen but it was mostly intact. She said that penetration of the vagina can leave a variety of signs or indeed no signs at all. The notches are intermediate findings and were consistent with a more elastic hymen which is therefore less likely to leave posterior scarring which is the common finding after penetration. She said that the hymen is very sensitive to the estrogen changes which occur during puberty. At the end of the day she said that the findings were equivocal as to whether penetration had occurred or not. She gave the example of a pregnant woman sometimes being found to have the posterior hymen intact.
- The bank statements of the defendant were tendered by consent, Exhibit 22. These show Centrelink and other payments coming in but immediately being withdrawn. The account was often in debit. There were statements also tendered, Exhibit 23 of a credit card which the defendant apparently had. $3,900 was owing but it seems the account was mostly inactive.
- Admissions were made, Exhibit 25, as to the age of the complainant, the fact that she was a lineal descendant, and the schools she had attended. It is common ground that the other family stayed at the house for two periods, between June/July 2014 and September to December 2014.
- The defendant did not give evidence but two witnesses were called on her behalf. Paris was called to prove the Messenger message referred to. It gave an appearance of being from B (which B denies) and, relevantly, is said to be indicative of some desire of the former husband to get evidence against the defendant. The provenance of this is completely unproven, and in my conclusion it is not admissible. If it were admissible it is of no evidentiary value, and may tend to breach the rule of finality as to questions in cross-examination concerning collateral issues; see e.g. Goldsmith v Sandilands (2002) 190 ALR 370 at . If it could prove anything, it would relate to either the credit of the former husband, or perhaps that of B; both clearly collateral issues. The complainant denied making false allegations because someone told her to; this purported evidence is very remote from her creditworthiness on that issue.
- Amongst many other problems, the evidence developed in cross-examination to a concession that if there was a Message sent along the lines suggested by somebody relevant to the case – which is very doubtful – it would have been sent after September 2016, that is, after the complainant’s complaint had already been made. In my view the whole exercise has no evidentiary value.
- The other defence witness was Warwick Maxwell Stevens. He is a senior team leader with Child Safety. He previously was a member of the Australian Federal Police. On 11 May 2015 he and his female partner responded to a notification concerning the complainant. They spoke to her at her school. The notification was in relation to drug use and verbal and physical abuse of the complainant by her mother. It did not concern sexual matters. In any case there were no disclosures.
- As he explained in cross-examination, children are sometimes reluctant to make disclosures. He used a number of techniques to establish rapport and have her make disclosures if possible. He said that there can be a number of reasons why children do not disclose. The family had a substantial child safety file and the children had been removed previously. The suggestion was advanced that the three adults in the room with the complainant may have been somewhat overwhelming.
- In the defence address Mr McInnes rhetorically posed the question whether the complainant was describing an actual event or an invention. He said that the circumstances suggest a false complaint. He further argued that her account was inherently improbable. He submitted that the inherent improbabilities infect the complainant’s narrative. Firstly, he argued that the very idea that a mother would do such things was improbable. That is, have a significant number of men over to the house prepared to rape a 9 or 10 year old girl. Obviously the defendant, if doing this, would be running a risk of a right minded person reporting this behaviour.
- In relation to the mention by the complainant of discussions about money, he argued this was not really an indicator of prostitution, particularly where possible drug dealing was involved. He submitted that the bank statements show the defendant was receiving about $1,800 per fortnight in income and she was not in circumstances of grave financial deprivation. The credit card debt was described as not pressing. He argued that the complainant’s account of at times being left tied up for a day was inherently improbable. He submitted that the threat to shoot her which was mentioned by the complainant at some stage; that seems to have been an afterthought and is also improbable. He said that the complainant did have a support network including her father if such things had been occurring. He noted the former husband’s recording in an affidavit of 12 January 2016 that the complainant was doing well at that stage. He submitted that although there was no evidence directly involving him in a conspiracy to make a false complaint, nevertheless the father was no doubt keen in any case to retain the children. It was submitted that the defendant’s success in relation to contact with K could be a possible driver of the false complaint by the complainant.
- The chronology in 2015 was that the defendant came back to the house on 21 June 2015 in an attempt to get K, then the party occurred a week later.
- He submitted that the former husband’s evidence was a bit inconsistent, that he had a propensity to style it to suit the particular situation, referring in particular to inconsistencies as to the date of separation. It was submitted that the complainant could have had the degree of sexual knowledge involved in her narrative from sources other than the offences being committed. This would include, for example, the DVD covers which she saw. He submitted that it was clear men did visit the house and the complainant apparently saw the defendant having sex with at least one man in the garage at one stage, although he said, correctly, that the complainant was somewhat inconsistent about the positions adopted.
- He submitted that the complainant may have seen the content of some of the videos – this was one of the counts on the indictment, although the defendant was previously acquitted of it.
- He submitted that the first disclosure in the written statement to the psychologist was limited and generic and is not a complaint of rape. This is quite correct.
- He submitted that it is only later the complainant uses terms such as rape and having sex. He submitted that in the first police interview she only spoke of inappropriate or naughty behaviour and that the version given, that is, waking up in the bedroom with the tall man and being in weird clothes was inconsistent with her later describing that as being the last time. In the second police interview she said that she woke up naked and the tall man was on top of her with the defendant holding her hands. At times in the pre-recorded evidence she described waking up wearing a black lacy costume, or at least a lacy one.
- Counsel submitted that there was also an inconsistency by the complainant, or an inability to correctly recall, whether the events took place before or after K was born. K was born quite some time earlier, and it is not possible for the offences to have happened before she was born so when this is said she simply can’t be correct. It was said more than once in the number of narratives that the complainant gave. It is clear enough, as the complainant did say in evidence, and is the Crown case, that the offences occurred, if they occurred, after her father went to prison.
- Mr McInnes submitted that in the first pre-recorded evidence the complainant gave quite a different account of the positioning of the people in the garage, with her mother being on top of the man at that stage with the other man sitting beside them, rather than the version to police of her being penetrated from behind and the other man across a table. I pause to note that, although this may be a stark inconsistency, it might also be an example of people changing positions during the sexual act which the complainant could have observed during the five minutes she says, on the first occasion, that she observed the scene.
- In relation to the second pre-recorded evidence, the complainant did say, quite candidly, that when she woke up the next morning after the first event she initially thought she had imagined it. Mr McInnes also refers to inconsistency about the complainant waking up wearing no clothes as opposed to pyjamas, in relation to her accounts as to Count 3. She also referred to the playboy outfit, relevant to the particulars of Count 4.
- In relation to Count 6 the deprivation of liberty, Mr McInnes submitted that it is improbable on any of the occasions that the complaint would have been left tied up all of the following day. It is also pointed out that these things never happened when other people were in the house. Again, it was submitted that Count 5, the cunnilingus, could have been fabricated by a nine or 10 year old girl if she had seen such activity on the DVDs which was the subject of the previous Count 7 of which the defendant was previously acquitted.
- The complainant’s account of the final occasion was that she ended up being in the garage tied up on her knees and being touched by many pairs of hands. There was reference to a gun and reference to being left there until dinner the following day. The defendant was previously acquitted on all of these counts. It was also submitted that the complainant had been inconsistent about those details and in this context, perhaps the acquittal is not surprising. I am also urged, of course, to bear this in mind in assessing the complainant’s credit worthiness, in the sense of what is sometimes referred to as a Markuleski type warning. Mr McInnes submitted at the end of the day that there was simply too many errors in the complainant’s evidence for it to be acceptable beyond reasonable doubt.
- Conversely the Crown prosecutor submitted that although the complainant’s credit worthiness is essential to the charges, she was a credit worthy witness and the charges are proven to the standard of beyond reasonable doubt. He argued that the things described by the complainant show no signs of being a fantasy or invention. He conceded that it happening every second or third night may possibly be an exaggeration. This is certainly in the context that, as outlined above, the complainant did not live full time at the house. The prosecutor submitted that the arguments about inherent probability are something of a two edged sword, in the sense that they are not the kind of bizarre and complex details which are likely to be made up by a young girl. The account was somewhat bizarre and complex, involving third parties and costumes, that is, many details which a fabricating complainant would run the risk of being disproved.
- It was submitted in relation to a potential motive to lie, being the potential access to K that 12 months had gone past without disturbance and really the former husband was in a position of having no real problems in that regard, as was the complainant. He emphasised that whatever order took place on 28 June it was not acted on. He also argued that a number of features counted in favour of the complainant’s credit worthiness, such as her reluctance to give details in her first complaint; her demeanour, which was not of a vindictive liar nor a rehearsed script. Further she was only 11 when she was making a complaint. If it was a lie it would be more mundane than the bizarre story given by the complainant. It was emphasised that the complainant absolved the second man in the garage of any wrong doing; again not likely with a vindictive liar. He submitted that the allegations were elaborate involving such things as bondage and costumes and fetishism, which were not likely to be within the knowledge, otherwise, of such a young girl. This was somewhat contentious, in the sense that there could, in modern times of mobile phones and ubiquitous internet, be many means of such knowledge, even by young children. It is not really necessary for me to resolve this issue with precision.
- In relation to the constant discussion of money during the offending, which implies prostitution, Mr Churchill again submitted that this would be a foreign concept to a nine or 10 year old girl. On the other hand the mother was broke, and took part in the offences which seems to suggest a financial motive, consistent with the complainant’s evidence.
- In relation to her demeanour, Mr Churchill submitted that the complainant began somewhat jovial and then went into a shell. He set out some of the details of the accounts given saying that the complainant was initially matter of fact, consistent with someone who did not understand the significance of what had happened initially. He submitted that her demeanour became more relaxed when she was with the female police officer. He conceded that the change in the complainant’s evidence from waking up naked to waking up in a costume at the 21AK pre-recording was a glaring inconsistency. Nor did she mention the drink given to her by her mother, but she did say that she had passed out. She was not directly asked, at the pre-recording, about the drink. Mr Churchill submitted that there was a two and a half to three and a half year gap from the offending to these versions being given, so some inconsistencies were to be expected and indeed buttress the complaint’s credit. He also pointed out that the offending was almost always the same in the complainant’s version.
- He acknowledged that the complainant had not mention Count 4 in the s 21AK hearing, but she was not specifically asked. He conceded she was inconsistent about the position of her mother during intercourse in the garage but she was consistent about the two men being present. He said that she was honest about her failings. Where there are a number of occasions, some inconsistencies to be expected and complete consistency would be suspicious. She was a 12 year old being cross-examined and wanting to get it right. He said that she couldn’t recall some peripheral details but got upset when the offences were discussed. He argued that the concession about waking up thinking she might have imagined it was the concession of an honest witness. He argued that the former husband was reasonably honest and pointed out that the discussion with the psychologist that the complainant would be interested in safe access to her mother was not the statement of a vindictive child. He also argued that the narratives by both B and C as to the goings on in the house were consistent with the complainant’s version and thus a buttress to her credit.
- Thus he submitted her evidence should be accepted to the required standard and the defendant found guilty.
- In relation to the directions to which I should have regard in considering the verdict, they are as follows, referring to the Benchbook (versions of these directions are appended to these reasons):
Direction 9 – evidence of affected children;
Direction 10 – s 93A recordings;
Direction 23 – portions of the general summing-up directions, in particular directions concerning primary facts and inferences and the burden of standard of proof;
Direction 27 – no adverse inference to be drawn from the fact that the defendant did not give evidence, together with the caution in Direction 26 that there is no shifting of the burden to her from the circumstance that she called witnesses.
Direction 34 – separate consideration of charges. In relation to this, I take into account the fact that the defendant was previously acquitted, at another trial, of a number of the counts which remain on the indictment and in relation to which evidence was led by consent at this trial. In this context it is important to give full weight to the fact of the acquittals. In this context I was referred to R v FAR  QCA 317, in particular, a quote at para  from R v Storey (1978) 140 CLR 364 at 372 where Chief Justice Barwick said:
“Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal, and not use the evidence in any way to reconsider the guilt of the accused on the earlier offence or to question or discount the effect of the acquittal.”
- In this case, as in FAR, the evidence was placed before me without objection and for a tactical forensic benefit of the defendant. In the circumstances it is necessary to direct myself that I am bound to accept the verdict on acquittal as the only possible view of the evidence in relation to those charges. It is not open to me to accept a view of the facts inconsistent with that acquittal, and of course I was not urged to do so. As observed in FAR, the fact of the acquittals is an initial matter which may reasonably cause me to afford the defendant the benefit of the doubt in respect of the remaining counts, I take this into account and give the defendant the full benefit of those acquittals, and in no way do I proceed to reconsider the guilt of the defendant in relation to those earlier offences.
- To continue, I also give myself the directions at Direction 45 of the Benchbook, that is in relation to the absence of motive for the complainant to lie; and Direction 68, preliminary complaint, which is relevant only to consistency and therefore credit, and only as regards Count 5;
- Importantly I also accept Direction 69 as to delay – I accept that the fairness of the trial as the proper way to prove or challenge the accusation has necessarily been impaired by the delay, and thus I accept the warning that it is dangerous to convict on the complainant’s testimony alone unless after scrutinising it with great care, and considering the circumstances relevant to its evaluation, and paying heed to this warning, I am satisfied beyond reasonable doubt as to its truth and accuracy.
- I accept also Direction 70 as to discreditable conduct; Direction 74 as to the party provisions; Direction 130 as to the elements of deprivation of liberty; Direction 146 as to the elements of indecent dealing; Direction 157 as to the elements of maintaining and Direction 168 as to the elements of rape. I pause to note that there is not much dispute in this case about the elements of the offences, rather the question is whether the prosecution has established to the required standard that the offences occurred in the way the complainant says, or does the prosecution fall short on that standard.
- At the end of the day, taking into account the warnings and other matters set out above, I do accept the complainant’s evidence as to the elements of the disputed offences beyond reasonable doubt. I found her demeanour compelling. She seemed to be a young girl who on her version of events had been exposed to serious sexual offending which she did not fully understand at the time, but knew that it was wrong.
- I do not accept that there was any motive to lie which animated the complainant. Nor was there any conspiracy by the father or anyone else to, as it was expressed, set the defendant up.
- I accept the prosecutor’s submissions that there is no sensible possibility of either a fantasy on the behalf of the complainant or a deliberate lie. I take into account a number of factors:
- (a)her demeanour, which I have outlined;
- (b)the complainant did not impress as someone who was giving evidence in accordance with a rehearsed script;
- (c)the account given by the complainant of the offences was quite bizarre and unusual, such that it was not likely to be a lie fabricated by a young female. It was elaborate in nature;
- (d)some inconsistencies, which I have mentioned above, were to be expected, particularly with the degree of delay involved;
- (e)her demeanour was that she was reluctant to complain at first;
- (f)it is significant that she absolved the second man in the garage of any wrongdoing. This is unlikely to be consistent with a fabrication in order to get her mother or other people in trouble;
- (g)the complainant told the psychologist, Ms Fleming, that she was interested in having some form of safe access or contact with her mother. Again, this is inconsistent with a vindictive liar;
- (h)the complainant made the concession in cross-examination that she woke up the next morning after the first offence thinking that she had imagined it. This is an honest concession, in my view, and again not one consistent with a vindictive liar;
- (i)the evidence of both B and C paint a picture of the house, and the goings on there and the activities of the defendant during the relevant period, although not at the exact time of the offences, which was consistent with the complainant’s evidence as to those matters. This provides a buttress to the complainant’s credit worthiness, although it is not evidence of what would be legally regarded as a corroborative nature, in that it does not tend to implicate the defendant in any offence. Nevertheless it is support for the complainant’s version.
- Conversely, the defence point quite rightly to a number of inconsistencies, some quite serious, which have been outlined above. However, I note, in addition to the factors already mentioned, I give those matters full force, and they are, to varying degrees, damaging to the complainant’s credit worthiness as a witness. However, I further take into account a number of other matters as follows.
- As I have outlined, the complainant’s credit worthiness is not damaged, in this case, by any established motive to lie.
- I have also been assisted by consideration of authorities as to the approach to the fact finding process in cases of this broad nature. In Pell v The Queen  VSCA 186, the Victorian Court of Appeal was considering a case which had some similarities with the present case, that is, the unsupported evidence of a complainant in relation to somewhat dated sexual offences against a child, which were very vigorously contested and in respect of which both inconsistencies and improbability of the account were live issues. At para  of the judgment the majority made the following observations:
“The jury were well equipped to decide whether any changes in A’s account over time revealed him to be dishonest or, alternatively, unreliable. As McHugh J said in M:
‘It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital — such as the account of a conversation in a fraud case or the description of a person where identity is the issue — discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.’”
- Those observations are relevant to, and supportive of, the view I have formed of the complainant’s overall credit worthiness despite the difficulties mentioned.
- The majority of the Court of Appeal continued at :
“In his charge, the judge noted the defence argument that changes and inconsistencies in A’s evidence undermined his credibility. He directed the jury that they needed to decide for themselves whether such inconsistencies were important to their assessment of his credibility. To assist their consideration, his Honour gave the jury a direction in the form provided for by s 54D(2)(c) of the Jury Directions Act 2015, as follows:
‘When you are assessing the evidence, also bear in mind that experience shows the following. One, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Two, trauma may affect different people differently, including by affecting how they recall events. Three, it is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts. And finally, both truthful and untruthful accounts of a sexual offence may contain differences.’”
- Of course, I am in no way bound by, or operating under the influence of, the Victorian Jury Directions Act, nevertheless, the observations made in those directions are consistent with the experiences of the courts and the observations in some of the cited authorities. Moreover, they reflect, in my conclusion, a somewhat common sense approach to the question of assessing evidence of this kind. They amount to observations which, in my view, are of some assistance, although no means binding or determinative of, the fact finding process in a case such as this.
- In this case there is also the feature of a failure to promptly complain by the complainant. She first raised a complaint something like about 15 months after the offending concluded. The cross-examination of the complainant did not seem to focus particularly on this point. The timing, in my view, is neither particularly surprising nor particularly exceptional, in a case such as this of child sexual offending, although in saying this, I recognise the force of the direction outlined above as to delay. Further guidance on this point can also be taken from another passage in Pell. At  the majority referred to decided authority as follows:
“As has often been recognised, delay in complaint is not uncommon in cases such as this. In R v BJB (2005) NSWCCA at 441, for example, McClellan CJ said:
‘In circumstances where children are the alleged victims of sexually inappropriate conduct, the combination of the disempowerment of the child and the authority figure of the perpetrator, together with the social pressures associated with causing conflict with the family or generally airing that which is in the past often leads to the suppression of these complaints until an older age.’” (at )
- Thus, despite the inconsistencies in her version and a degree of delay, the complainant was an impressive witness who I accept beyond reasonable doubt on the elements of the offences.
- Another topic on which the defendant attacked the complainant’s credit worthiness is the topic of improbability. Although the complainant’s version is of very unusual behaviour by a mother, and I have described it at times as somewhat exotic, in my view this is no significant impediment to the complainant’s credit worthiness as to the charges. Some other as I have noted, throughout her evidence, the complainant presented as someone whose demeanour was of a truthful witness. She did not, in my view, seek to embellish her evidence or tailor it in a manner favourable to the prosecution, as I have broadly outlined above.
- As to this topic of improbability, some helpful observations were also made in Pell at , the majority said this:
“As is illustrated by the proven allegations of repeat offending by a high-profile defendant in Hughes v The Queen, sexual offending does sometimes take place in circumstances carrying a high risk of detection.”
- And at  of Pell:
“Another illustration is provided by Rapson v The Queen  VSCA 216;  45 VR 103. In that case, a priest who served as a teacher and later as vice-principal at a boys’ secondary school was convicted of five charges of rape and eight charges of indecent assault against boys in his charge. As recorded in the sentencing judge’s reasons, one of the indecent assaults occurred in the presence of two other priests and three other boys; two others were committed in the school infirmary in the presence of several other boys; and all five rapes were committed in the office which the offender occupied as vice-principal. On three of those occasions, he had gone to the victim’s dormitory late at night and ordered him to come to the office. This Court commented as follows:
‘Plainly enough, he could have chosen a variety of other locations for this purpose, including locations away from school premises. What is distinctive about his use of the office, apart from anything else, is that it was a location which embodied, and reinforced, his authority over the boys at the school.’”
- The majority continued at :
“In WEA v The Queen, this Court rejected an interlocutory appeal by a person charged with — and subsequently convicted of numerous sexual offences committed against five female members of his extended family while they were children. The Court agreed with the trial judge that the (alleged) offending was committed ‘in circumstances of remarkable brazenness’. And, in Morris v The Queen, a schoolteacher pleaded guilty to representative charges of indecent assault against six pupils in his charge. In a number of instances, the teacher had touched the pupil’s genitals while the pupil was sitting on the teacher’s knee reading a book in front of the class.”
- And at ;
“It is unnecessary for present purposes to speculate as to why a person might pursue sexual gratification in such obviously risky circumstances. Each case must, of course, be determined on its own facts. What these other cases do show, however, is that the existence of a high level of risk did not, in and of itself, oblige the jury to have a reasonable doubt that the alleged offending took place.”
- Those observations deal with improbability in the sense of brazenness and risk of detection. That is part of what the defence point to in this case, in the sense that, with a number of different men involved, the defendant was taking risk of revelation of her activities by a right minded participant. But the other aspect of improbability is the simple proposition that this kind of behaviour by a mother towards her daughter is simply highly improbable.
- Whilst giving those submissions their full force, the passages referred to indicate the difficulties with improbability, of itself, as an overwhelming factor in the fact finding process. Moreover, dealing with the proposition of the unlikelihood of a mother behaving in such a way, it is, frankly, an unusual situation with which I am dealing, where the defendant, apparently in a somewhat vulnerable state, was caring for the children without the support of her husband, having difficulty coping, to quote B “went crazy” and was, on the evidence, heavily abusing prescription medication and also using other drugs. She was also clearly associating with males whom at least B found frightening. These various features, in my view, somewhat sadly, dilute the impact of the submissions of improbability.
- It is quite right for the defence to submit that it is very unusual, and indeed possibly improbable, for mother to act in such a serious way against her daughter. Also some of the details of the offending are bizarre. However, for reasons outlined above, this does not, in my conclusion raise a reasonable doubt. As I have outlined and commented on, it is the experience of the courts that offenders do commit these acts in unusual and risky circumstances.
- Overall, therefore, in the way I have outlined, my conclusion is that I accept the evidence of the complainant as to the elements of the offences to the required standard, namely beyond reasonable doubt and therefore the defendant is found guilty of the offences as per the particulars of the offences on the indictment. For counts 2, 3 and 4 the prosecution relies on the party provisions in that the defendant either did an act for the purposes of aiding; and/or aided; and/or counselled or procured the commission of the offence. In each case the particulars are made out on the complainant’s evidence, which I accept. For count 5 she was the principal offender. For count 6 she is said to have been a principal offender or a party under s 7(1) (c) or (d). I find that she was a party to this offence, on each of the bases alleged, but it is not clear to me that I could conclude she was a principal offender to the required standard.
- The substantive counts being proven establishes all of the elements of Count 11, i.e. the defendant was an adult, that is, over 18 years; the complainant was at the time a child under 16 years; there was more than one unlawful sexual act over the period in the indictment; the relationship was maintained in the sense of carried on, kept up or continued; there was continuity or habituality.
- One further topic which was canvassed to some degree in the submissions was whether the correct view of the facts is that the defendant was in truth prostituting her daughter. That is, whether the commentary which the complainant heard about money was referable to men committing sexual acts on the complainant with the mother’s concurrence and assistance. Although it may be necessary for me to hear more submissions on this topic as part of the sentencing process, I can express at this stage my provisional view that I would not be driven to a conclusion to the required high degree of satisfaction that this was what was happening. The circumstances were certainly suspicious, but there is no precise evidence of such a transaction. In any case, I may hear more submissions on that point during the sentencing process if counsel deem it necessary.
Directions referred to:
Evidence of Affected Children
Re: Measures used to take and present an Affected Child’s evidence
The evidence of the complainant and the other affected child witnesses which was played was taken on the relevant dates outlined
At the time the children gave evidence, they were in a room remote (separate) from the Courtroom.
The evidence was given by use of an audio visual link between the room in which the child was seated and the Courtroom.
At the time each child gave evidence there was a support person sitting in the room with her, and no other person.
Whilst the child gave evidence, all non-essential persons were excluded from the Courtroom.
At the time, the defendant was present in the Courtroom but was so positioned that the child could not see the defendant on the monitor, or at all.
The child’s evidence was recorded as it was given and that is the recording that was played.
The Courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the child was played.
I thus act on the following basis:
- (a)All of the measures which I have just outlined, used for the taking and showing of the child’s evidence, are the routine practices of the court for taking and showing evidence of children such as those involved here
And I do not draw any inference as to the defendant’s guilt because these measures were used.
- (b)The probative value of the evidence is not increased or decreased because these measures were used.
- (c)The evidence is not to be given any greater or lesser weight because these routine measures were used.
Child Witnesses: 93A Statements
Part of the children’s evidence is comprised of their conversations with police at the various police stations
These conversations were recorded and the recording was played.
The presenting of the child’s evidence in this way comprises the routine practice of the Court. This measure is adopted in every case involving such children
The video recording of the childrens’ evidence and the transcript was available to me when considering my verdicts; I did not re-watch the recordings but occasionally referred to transcripts for accuracy.
I kept in mind that the transcript is someone else’s impression of what was said during the recorded interview. The transcript is not evidence and was made available as an aid only. It is what I heard on the recording that matters, not what is in the transcript.
As I did not have any other witnesses’ evidence with me in recorded or written form (other than Dr Baer), I was careful not to place undue weight on the childrens’ evidence because I was able to hear and read it on a number of occasions (although, as noted, I did not re-watch the recordings).
General Summing Up Directions
How to use the testimony and the exhibits
Primary facts and inferences
Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. The documents, photographs and other things put into evidence as exhibits may also tend directly to prove facts. But in addition to facts directly proved by the evidence, I may also draw inferences – that is, deductions or conclusions – from facts which I find to be established by the evidence. If I am satisfied that a certain thing happened, it may be right to infer that something else occurred. That is the process of drawing an inference from facts. However, I may only draw reasonable inferences; and my inferences must be based on facts I find proved by the evidence. There must be a logical and rational connection between the facts I find and my deductions or conclusions. I have not indulged in intuition or in guessing.
Burden of proof
The burden rests on the prosecution to prove the guilt of the defendant. There is no burden on a defendant to establish any fact, let alone her innocence. The defendant is presumed to be innocent. She may be convicted only if the prosecution establishes that she is guilty of the offences charged.
Standard of proof
For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that she is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged.
It is for me to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences. If left with a reasonable doubt about guilt, my duty is to acquit: that is, to find the defendant not guilty. If not left with any such doubt, my duty is to convict: that is, to find the defendant guilty.
Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities.” That is, the case must be proved to be more likely than not.
In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.
Defendant Not Giving Evidence, where no adverse inference
The defendant has not given evidence. That is her right. She is not bound to give evidence. The defendant is entitled to insist that the prosecution prove the case against her, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against her. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and I do not assume that because she did not give evidence that adds in some way to the case against her. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
Defendant Calling Evidence
In the context of the directions above that the defendant does not have to give evidence, or call other people to give evidence on her behalf, or otherwise produce evidence, it is necessary to deal with the fact that she did call witnesses. That she has done so does not mean that she assumed a responsibility of proving her innocence. The burden of proof has not shifted to her. The evidence of the witnesses called for the defence is added to the evidence called for the prosecution. The prosecution has the burden of proving each of the elements of the offences beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
Often enough cases are described as ones of “word against word”. In a criminal trial it is not a question of making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant’s witnesses. The proper approach is to understand that the prosecution case depends upon my accepting that the evidence of the prosecution’s principal witness was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant’s witnesses.
Where, as here, there is defence evidence, usually one of three possible results will follow:
I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, the verdict would be not guilty;
I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, my verdict will be not guilty;
I may think that the defence evidence should not be accepted. However, I am careful not to jump from that view to an automatic conclusion of guilt. If I find the defence evidence unconvincing, I set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as you do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.
Of course, in this case the defence evidence did not directly contradict the complainant; rather it pointed to circumstances which might arguably erode her credit.
Separate Consideration of Charges
I consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements. I return separate verdicts for each charge.
The evidence in relation to the separate offences is different, and so my verdicts need not be the same; also, the elements of the offences are different, and so my verdicts need not be the same.
I do not have reasonable doubts as to the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts before me – if I had this would of course be taken into account in assessing her evidence generally - but as outlined above, in saying this I give the defendant the full benefit of previous acquittals on some other counts.
I have not taken the complainant’s evidence on the individual charged acts either as evidence of a sexual interest in her by the defendant, or otherwise as circumstantial evidence supporting other counts. To the extent that they are relevant and cross-admissible, however, they are evidence of relationship evidence, as well as going to proof of the maintaining count. That is, evidence of other conduct which has taken place between the defendant and the complainant, which the prosecution says is necessary to explain what occurred in the incidents which are the subject of the alleged offences.
The relevance of this evidence is, in this sense, limited. It does not make it more probable that the defendant committed the alleged offences. This evidence is relevant only to answer questions about the background to the incidents which the prosecution allege were the individual charged offences, i.e. the complainant’s reaction, or lack of it, or whether the offences were in each case isolated; to put them in context, rather than each one happening “out of a clear blue sky”. The same applies to evidence of the defendant’s apparent connection with illegal drugs (these directions are taken in part from Direction 70 as to Discreditable Conduct).
Absence of Complainant’s Motive to Lie
The prosecution has submitted that the complainant does not have any motive to lie. It was suggested by the Crown that the idea of potential access by the defendant to K was a motive advanced by the defence; it is not clear to me that this was in fact so.
In any case, I bear in mind that any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist.
If such a motive existed, the defendant may not know of it.
There may be many reasons why a person may make a false complaint.
Although I am not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean that the complainant is truthful. It remains necessary for me to be satisfied that the complainant is truthful, something of which the prosecution retains the burden.
In this case, there is evidence of the complainant’s preliminary complaint to Ms Fleming in Exhibit 6 on 25 July 2016 that her mother had dealt with her inappropriately.
That evidence may only be used as it relates to the complainant’s credibility. Consistency between that account and the complainant’s evidence before me is something I may take into account as possibly enhancing the likelihood that her testimony is true.
However, I cannot regard the things said in those out-of-court statements by the complainant as proof of what actually happened. Evidence of what was said on that occasion may, depending on the view I take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything.
Likewise any inconsistencies between that account of the complainant’s complaint and the complainant’s evidence may cause doubts about the complainant’s credibility or reliability.
Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me. I do not find it particularly impactful that the version in Exhibit 6 does not give all the details of all the offences.
Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for me to consider. But the mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.
As I have noted, the preliminary complaint evidence is only a buttress to credit as to Count 5.
See paragraph  and  above. I have taken into account and given full weight to, the Longman direction and warning.
I have taken into account the directions at  of the Benchbook on this aspect as relevant to this case, and the way in which the Crown particularises their engagement. I accept that criminal responsibility is established by primary responsibility for some offences and for others, particularly rape, aiding and generally as the Crown sets out. I have set out the details at  above.
Deprivation of Liberty s 355
The prosecution must prove that:
- The defendant:
- (a)confined or detained another in any place against the other person’s will; or
- (b)otherwise deprived another of the other person’s personal liberty.
- The defendant did so unlawfully. That is, not authorised, justified or excused by law.
Detain means keep in confinement or under restraint. Restraint can be exercised by threats. The defendant does not have to use force or physical restraints. If the defendant compels the person by threats to remain in a place against that person’s will, that is sufficient. Depriving of liberty simply means taking away the free choice of a person to move about as he or she wants; here, the tying to the bed.
Indecent Dealing with a child under 16 s 210(1)(a)
The prosecution must prove that:
- The defendant dealt with the complainant.
The term “deals with” includes a touching of the child.
It does not have to be a touching of the child by the defendant’s hand – it can be a touching of the child by any part of the defendant’s body.
- The dealing was indecent. The word “indecent” bears its ordinary everyday meaning, that is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.
- The dealing was unlawful.
Unlawful means not justified authorised or excused by law.
- The complainant was under 16 years.
- Circumstance of aggravation:
- (a)The complainant was under the age of 12 years; and
- (b)The complainant was, to the knowledge of the defendant, her lineal descendant;
Rape s 349
The prosecution must prove the defendant:
- Had carnal knowledge of or with the complainant (as a party to the offence of the co-offender)
- Without her consent.
- Penetrated the mouth of the other person.
- To any extent.
- With the defendant’s co-offender’s penis.
- Without the consent of the other person.
Maintaining a Sexual Relationship with a Child
The prosecution must prove that the defendant maintained an unlawful relationship of a sexual nature with a child under the prescribed age.
- The prosecution must prove that the defendant was an adult, that is, a person over 18 years of age.
- The prosecution must prove that complainant was at the time a child under the age of 16 years.
- An unlawful sexual relationship is a relationship that involves more than one unlawful sexual act over any period. “Unlawful sexual act” means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law.
- Maintained carries its ordinary meaning. That is, carried on, kept up or continued. It must be proved that there was an ongoing relationship of a sexual nature between the defendant and the complainant. There must be some continuity or habituality of sexual conduct, not just isolated incidents.
- I must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sex acts existed.
If satisfied beyond reasonable doubt of the guilt of the defendant in relation to any of counts, the relevant sexual act or acts will then be used in my consideration of the count of maintaining.
- Published Case Name:
R v BDF
- Shortened Case Name:
R v BDF
 QDC 37
Kent QC DCJ
11 Mar 2020