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  • Unreported Judgment

The Queen v NF

 

[2020] QDC 206

DISTRICT COURT OF QUEENSLAND

CITATION:

R v NF [2020] QDC 206

PARTIES:

THE QUEEN

v

NF

(Defendant)

FILE NO:

Townsville Indictment No 594 of 2019

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

30 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2020 – 18 June 2020, 24 June 2020

JUDGES:

O’Brien CJDC

ORDER:

Count 1: Guilty

Count 2: Guilty

Count 3: Guilty

Count 4: Guilty

Count 5: Guilty

Count 6: Guilty

Count 7: Guilty

Count 8: Guilty

Count 9: Guilty

Count 10: Guilty

Count 11: Not guilty

Count 12: Not guilty

Count 13: Not guilty

Count 14: Guilty

Count 15: Guilty

CATCHWORDS:

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where the defendant is charged with one count of maintaining an unlawful sexual relationship with a child under the age of 16 years – where the defendant is charged with one count of indecent treatment of a child under 16, under 12 – where the defendant is charged with eight counts of rape – where the defendant is charged with one count of indecent treatment of a child under 16, under care – where the defendant is charged with three charges of common assault – where the defendant is charged with one count of assault occasioning bodily harm – whether the Crown has proved each element of each charge beyond reasonable doubt

COUNSEL:

Ms M A Sheppard, Crown Prosecutor for the Crown

Mr F D Richards for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Legal Aid Queensland for the defendant

Introduction

  1. [1]
    The accused is charged on the indictment with 15 offences, each said to have been committed against the same complainant.  The first charge alleges that between 15 May 1995 and 2 November 1999 at Townsville and elsewhere, he maintained an unlawful sexual relationship with a child under the age of 16 years.  It is alleged, as a circumstance of aggravation, that during the course of that relationship he committed rape upon the complainant.  Counts 2 and 4 allege offences of indecent treatment of a child, each with a circumstance of aggravation.  Counts 3, 6, 7, 8, 9, 11, 12 and 13 allege offences of rape and Count 10, an offence of assault occasioning bodily harm. The remaining counts, Counts 5, 14 and 15 each allege an offence of common assault. Particulars of those several charges are set out in Exhibit 1.
  2. [2]
    On 6 December 2019, the accused entered pleas of not guilty to all charges and on that same date an order was made pursuant to s 21A(2)(e) of the Evidence Act 1977 that the evidence of the complainant as a special witness should be pre-recorded and heard in the proceeding instead of her direct testimony.  That pre-recording took place over two days before His Honour Judge Lynham on 27 March and 3 April 2020.  Those recordings have become Exhibit 2 in these proceedings.
  3. [3]
    On 11 May 2020, an order was made pursuant to s 615(1) of the Criminal Code (the Code) that the accused be tried by a Judge sitting without a jury. The trial commenced on 15 June 2020 and following final addresses on 24 June 2020, I reserved my decision in the matter.
  4. [4]
    In a trial by a judge sitting without a jury, the judge is required by s 615B(1) of the Code, so far as is practicable, to apply the same principles of law and procedure as would be applied at a trial before a jury.  Section 615B(3) of the Code provides that if an act or the common law requires information or a warning or any instruction to be given to a jury in particular circumstances, the judge in a trial by a judge sitting without a jury must take the requirement into account if the circumstances arise.
  5. [5]
    The judge sitting without a jury may make any findings and give any verdict a jury could have made or given if the trial had been before a jury under s 615C(1)(a) of the Code.  As per s 615C(1)(b) of the Code, any finding or verdict has the same effect as the finding or verdict of a jury.  Pursuant to s 615C(3) of the Code, the judgment must include the principles of law that have been applied and the findings of fact that have been relied upon.[1]

Preliminary Matters

  1. [6]
    As part of the Crown case, the pre-recorded evidence referred to above was played.  It is not uncommon for evidence to be given in that way with the complainant being located in a separate room within the court building and her evidence given by audio visual link.  The accused was obscured from the view of the witness.  As the complainant gave her pre-recorded evidence, there was a support person sitting in the room with her and, as is the usual practice, all non-essential persons were excluded from the court room itself whilst that occurred.  I draw no inference as to the accused’s guilt from the fact that her evidence was given in that way.  The probative value of her evidence is neither increased nor decreased because of that procedure and it is given no greater or lesser weight for that having occurred.
  2. [7]
    Also as part of the Crown case, expert evidence was led from a forensic scientist.  The fact that she is referred to as an expert witness does not mean that her evidence is automatically to be accepted.  As the sole judge of the facts in this case, it remains a matter for me to accept or reject the expert’s opinion as I see fit.  I should have regard to the witness’s qualifications, to whether I thought the witness to be impartial or partial to either side, and the extent to which the opinion accords with facts I find to be proven.  If the factual basis for the expert’s opinion has not been established to my satisfaction, the opinion may be of little value.  In this case the expert gave evidence by audio visual link.  I do not, for that reason, give it any more or less weight and I draw no adverse inference against the party simply because the evidence was given in that way.
  3. [8]
    In this matter, the defendant gave evidence in his own defence. By giving evidence the defendant did not assume any onus of proving his innocence.  The evidence which he gave is simply added to the evidence called by the prosecution.  The prosecution has the burden of proving the guilt of the defendant 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 its case before the defendant can be convicted.
  4. [9]
    The issue for determination is not resolved by comparing the complainant’s evidence and the defendant’s evidence, and deciding which is the preferred version.  Where, as in this case, there is defence evidence, usually one of three possible results will follow.  Firstly, if the defence evidence is credible and reliable and gives a satisfactory answer to the Crown case in respect of a particular charge, then the verdict would of course be one of not guilty in respect of that charge.  Secondly, even if the defence evidence is unconvincing, it may nevertheless create a state of reasonable doubt as to what the true position is in relation to a particular charge, in which event the verdict would be one of not guilty in respect of that charge. Thirdly, if the defence evidence is not accepted, that does not lead to an automatic conclusion of guilt.  If the defence evidence is unconvincing, I must put it to one side and go back to the rest of the evidence and consider whether, based on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the particular offence. 
  5. [10]
    As part of its case, the prosecution here relies on answers said to have been given by the accused in an interview conducted with police on 23 April 2018.[2]  In order to rely on that evidence, I must be satisfied not only that the accused made those statements relied on by the prosecution, but also that they were truthfully made. Ultimately, in relation to all answers provided by the defendant in that interview, whether implicatory or exculpatory, it is a matter for me to determine what use I make of them and what might I attach to them.
  6. [11]
    A transcript of the accused’s recorded interview with police officers was provided to the court, as were transcripts of the pre-recorded evidence of the complainant. I regard the content of those transcripts as being no more than an aid to my comprehension of the recordings.  They are not a substitute for what was actually said.  To the extent that I form a view of any part of the conversation or recorded evidence that differs from the transcripts, I will act upon my own view of what was said.  In this trial, a number of formal admissions were made pursuant to the provisions of s 644 of the Code.  Those admissions, which relate primarily to the obtaining and delivery of a number of DNA samples and to data relevant to conception and resultant pregnancy, are set out in Exhibit 20.  Pursuant to s 644 of the Code, those admissions provide sufficient proof of the facts so admitted without other evidence.
  7. [12]
    Counsel for the defendant has submitted that this is a case which may involve the drawing of inferences.  Any inference which I do draw must be a reasonable one and must be based on facts proved by the evidence.  There should exist a logical and rational connection between the facts which I find to be established and any deductions or conclusions which I reach.  There can be no room for intuition or guess work.
  8. [13]
    As indicated above, there are 15 charges to consider.  Each one of those charges will require individual consideration.  This will involve considering each charge separately, evaluating the evidence relating to that particular charge, and deciding whether I am satisfied beyond reasonable doubt that the prosecution has proved the essential elements of that charge. The evidence in relation to the separate offences is different. Different offences have different elements. Separate verdicts will be necessary in relation to each charge.  The mere fact that I might reach a particular verdict in relation to one or more of the charges does not mean that I must reach that same verdict in relation to any one or more of the remaining charges. As indicated above, each of the 15 charges here involves the same complainant.  If I have a reasonable doubt concerning the truthfulness or reliability of her evidence in relation to one or more of the counts, whether by reference to her demeanour or for any other reason, then that is a matter which I must take into account in assessing the truthfulness or reliability of her evidence generally.

Background

  1. [14]
    The complainant was born on 1 November 1983.[3]  She was one of five children born to B and her then husband E.  She first met the defendant in about 1994 at a time when she lived with her mother and four siblings in the Townville suburb of Rasmussen.  The accused, who was born on 15 November 1951,[4] lived with his four sons in the nearby suburb of Cranbrook.  The complainant, then aged about 11, met the defendant through her association with two of his sons. It seems clear that the two single parents began to develop a relationship and the two families began living together at an address in Jewel Street at Rasmussen in May 1995.[5] Subsequently, in July 1995, the families moved to an address at Pinnacle Drive, also in the suburb of Rasmussen.[6]  From there, the families moved, in 1996, to live in Greenvale where they occupied a large building previously used as a barracks for railway workers.  In Greenvale the relationship between the two parents broke down and the complainant’s mother formed a relationship with another man with whom she moved to live with in Ingham.  In circumstances to which I shall later refer, the complainant remained in Greenvale with the defendant and a number of his sons.  They returned to Townsville in 1998 and lived together at an address at Pinari Street, Kurrajong before moving, in turn, to addresses in Ganet Street, Condon, Hazard Street, Rasmussen, and Frank Street at Kirwan.
  2. [15]
    The complainant alleges that the defendant had begun to sexually abuse during the time that the family lived together at Jewel Street in Rasmussen.  On her account, the abuse, including the offences of rape, continued at the various addresses set out above.  During that time she gave birth to five children, including one who was conceived before her sixteenth birthday, with the defendant in each case being the father.  The defendant’s account, in broad terms, is that there was no sexual abuse of any kind.  He is not the father of the first two children and maintains that it was only after the complainant had turned 16 that he commenced a consensual sexual relationship with her.  The last three children were born of that consensual relationship following consensual acts of sexual intercourse.

The Charges

  1. [16]
    A defendant in a criminal trial is presumed to be innocent.  In respect of each charge, the Crown has the responsibility of proving the guilt of the defendant beyond reasonable doubt.  Before making a finding of guilt in relation to any particular charge, I must be satisfied beyond reasonable doubt that the Crown has proved each element of that particular charge. If I am not so satisfied, then I am bound to find the defendant not guilty of that particular charge.

Count 1 – Maintaining a sexual relationship with a child with a circumstance of aggravation.

  1. [17]
    To establish this charge, the Crown would need to provide the following matters beyond reasonable doubt:
  1. That the defendant did an act defined as an offence of a sexual nature in relation to the complainant child on three or more occasions.  In this case, the prosecution relies upon the offences of indecent treatment of a child as pleaded in Counts 2 and 4 and the offences of rape as pleaded in Counts 3, 6, 7 and 8 of the indictment.  Those acts are all offences of a sexual nature.  If the prosecution has proven that the defendant did an act on three or more occasions, it does not matter that the dates or exact circumstances of those occasions are not disclosed by the evidence.  To be satisfied of this element, however, I must be satisfied as to the same three or more offences.  If I am not so satisfied, then the charge of maintaining will not have been established;
  2. That an unlawful relationship of a sexual nature has been maintained.  The concept of a relationship involves some continuity of habituality of conduct;
  3. That the relationship of a sexual nature was unlawful – that is it was not justified, authorised or excused by law.  Of this element, it is enough to say that, in this case, if the relationship as alleged is established to the requisite standard, then there is no suggestion that it was other than unlawful;
  4. That the defendant maintained such a relationship with the child.  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 individual incidents;
  5. That the defendant was an adult – defined as a person of or over the age of 18 years.  The evidence establishes that the defendant was born on 15 November 1951 and was therefore clearly an adult during the timeframe alleged in the indictment;
  6. That the complainant was a child — that is under the age of 16 years at the relevant time.  The evidence establishes that the complainant was born on 1 November 1983 and was therefore under the age of 16 during the period alleged.
  1. [18]
    Count 1 traverses the amendments to the offence provision of 1 July 1997.  Notwithstanding those amendments, the Crown must prove at least three offences of a sexual nature and that an unlawful relationship was maintained.

Count 2 – Unlawfully procuring a child under 16 to commit an indecent act with a circumstance of aggravation

  1. [19]
    To make out this charge the Crown must prove each of the following matters beyond a reasonable doubt:
  1. The defendant unlawfully procured a child.  “Procured” means to bring about.  Procuring can be regarded as bringing about a course of conduct which the complainant would not have embarked upon of his or her own volition.  “Unlawfully” means not justified, authorised or excused by law;
  2. To commit an indecent act.  “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; 
  3. The complainant was under 16 years.  As indicated above, the evidence establishes that the complainant was born on 1 November 1983;
  4. To make out the circumstance of aggravation, the prosecution must prove that the complainant was under the age of 12 years at the relevant time.  The offence is alleged to have occurred between 19 May 1995 and 14 July 1995.  The complainant was under the age of 12 years between those dates.

Counts 3, 6, 7, 8 and 9 – Offences of rape committed prior to the amendments of 27 October 2000

  1. [20]
    To establish these offences, the Crown must prove beyond reasonable doubt each of the following matters:-
  1. That the defendant had carnal knowledge of the complainant. This element requires proof that the defendant penetrated the genitalia of the complainant with his penis.  Any degree of penetration is sufficient.  It is not necessary that the prosecution prove that the defendant ejaculated;
  2. That the carnal knowledge occurred without the consent of the complainant.  Consent is a common word in everyday use.  Used in the context of sexual activity it means consciously permitting the act of sexual intercourse to occur.  Consent may be defined as the agreement to, or the acquiescence in, the act of sexual intercourse by the complainant.  The defendant of course does not have to prove that the complainant consented, the prosecution must prove that she did not consent.

Count 4 – Indecent treatment of a child under the 16 with a circumstance of aggravation

  1. [21]
    To prove this charge, the Crown must establish each of the following matters beyond reasonable doubt:
  1. That the defendant dealt with the complainant. The term “deals with” includes a touching of the child.  It is not necessary that the touching of the child should be by the defendant’s hand, it can be a touching of the child by any part of the defendant’s body;
  2. That the dealing was indecent.  The word “indecent” bears its ordinary every day 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;
  3. The dealing was unlawful — that is not justified, authorised or excused by law;
  4. That the complainant was under the age of 16 years;
  5. To make out the circumstance of aggravation, the prosecution must further prove that at the relevant time, the defendant had the complainant child under his care.  Those are words of ordinary English expression.  They mean that at the time alleged, the defendant was responsible for the control and supervision of the child.  In making that assessment, matters such as the age of the child, how the child came to be with the defendant and why the child was with the defendant should be considered.

Counts 5, 14 and 15 – Common assault

  1. [22]
    These charges require the prosecution to prove beyond reasonable doubt each of the following elements:
  1. That the defendant assaulted the complainant. Relevantly, any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, whether directly or indirectly, without that other person’s consent or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without that other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect to person’s purpose, is said to assault that other person and the act is called an assault; 
  2. That the assault was unlawful.  An assault is unlawful unless it is in some manner authorised, justified or excused by law. 

Counts 11, 12 and 13 – Offences of rape committed subsequent to the amendments of 27 October 2000

  1. [23]
    To establish these charges the Crown must prove beyond reasonable doubt each of the following elements:
  1. That the defendant had carnal knowledge of the complainant. The term “Carnal knowledge” includes anal penetration and is complete on penetration to any extent;
  2. Without the complainant’s consent.  “Consent” means consent freely and voluntarily given by a person with the cognitive capacity to give consent.  A person’s consent is not freely and voluntarily given if it is obtained by force, by threats or intimidation or by fear of bodily harm or by exercise of authority. The giving of consent is the making of a representation by some means about one’s actual mental state when the mental state consists of a willingness to engage in an act.[7]

Count 10 – Assault occasioning bodily harm

  1. [24]
    To establish the guilt of the defendant in respect of this offence, the Crown must prove not only those elements of common assault as set out above when considering Counts 5, 14 and 15, but must further prove that the defendant by the assault did bodily harm to the complainant.  This requires proof that the complainant suffered a bodily injury which interfered with health or comfort.

Evidence of the complainant

  1. [25]
    The complainant’s account was that within a few weeks of the families commencing to live together at Jewel Court in Rasmussen, the defendant became “more physical” in his activities with her.[8] She described an occasion when the defendant was seated in the kitchen and no one was at home.  He grabbed her hand, pulled her over and placed it on the crotch of his pants.  She could feel that his penis was hard.  He kissed her on the lips and attempted to insert his tongue into her mouth.  She thought this activity lasted for about 30 seconds and stopped when they heard someone coming down the hallway.  The defendant told her not to say anything to her mother “because there was no point in upsetting her again”.[9]  This is the allegation that constitutes Count 2. 
  2. [26]
    Count 3 is said by the complainant to have occurred “a couple of days after Count 2”.[10] It was in the afternoon when no one else was at home. The defendant took the complainant to the bathroom, telling her that he had something to show her. He closed and locked the bathroom door. He sat her down on the bath, again said that he had something to show her and unzipped the front of his green cargo-type pants. He pulled down his underwear and exposed himself and asked her if she liked what she saw.  He told her that he had “done all this stuff for (her)” such as buying her toys and giving her money. If she wanted something he would get it for her, but now “(she) had to do something for him”.[11] She was scared and nervous. He told her to undress and lie on a towel that he had placed on the floor, telling her “that he wanted to have sex with (her) from the first time he saw (her)”.[12] He laid on top of her, pushed her knees open and told her that it would only hurt for a little while and she would “end up liking it”.[13] He then inserted his penis in her vagina, telling her to try not to make a noise. She felt a lot of pain in her abdomen but could not move because of his weight. When the defendant sat up, she saw blood on his penis. He told her “that it wasn’t bad” and that she did “a good job not making any noise”. He told her to go “and clean herself up” before her mother returned.[14] After doing that, she went to her bedroom and sat and played with her favourite toy. The defendant came into the bedroom and told her to remember not to say anything “because we’ll get into trouble”.[15] When her mother returned home, the defendant greeted her with a kiss and told her that the complainant “had been a good girl”.
  3. [27]
    In cross-examination, it was put to the complainant that the only time that she had been in the bathroom with the defendant was an occasion when she had entered with her mother when he was showering.[16] The complainant rejected that suggestion.  When questioned as to why she had not reported the bathroom incident to her mother, the complainant responded:

“Well, it had been a long time since my mother was happy and Noel made her happy and he made it clear that if I said anything about what was going on that it would upset her so I said nothing.”[17]

  1. [28]
    Count 4 is said to have occurred after the families had moved to Pinnacle Drive.  The offence occurred in the bedroom which the defendant shared with the complainant’s mother.  She had gone to the bedroom to speak with her mother.  The other children were in the lounge room fighting over a game and her mother had left to attend to that dispute.  As soon as her mother left the room, the defendant asked the complainant to sit next to him on the bed.  He then pulled open the top of her pants (“little peachy coloured pants about knee high with an elastic waist”)[18] and placed his hand down the front.  He told her that he would start with one finger and see how that felt.  He then inserted his finger into her vagina for “about a minute or so”.[19]  At the sound of her mother returning, the defendant removed his hand “and laid back down like he’d been doing nothing”.[20]
  2. [29]
    In cross-examination, it was put to the complainant that in fact, both her mother and the defendant had left the bedroom to deal with the lounge room dispute and that there had been no opportunity for him to have done anything in the bedroom.  She rejected these suggestions.[21]
  3. [30]
    From Pinnacle Drive, the family moved in 1996 to live in Greenvale.  It is there that Counts 5, 6 and 7 are said to have occurred.  The house at Greenvale was formerly a railway worker’s barracks with as many as 17 bedrooms.  The bedroom occupied by the complainant was directly across a hallway from the room occupied by the defendant and the complainant’s mother.  Unlike her siblings who were allowed to choose rooms at the other end of the house, the complainant was not permitted to select her own bedroom.  Initially, the house had no power connected to it and it was necessary to gather wood to fuel a fire which provided hot water.  On one occasion, about a month after moving into the house, the complainant had gone with the defendant to collect firewood.  She yelled at the defendant telling him that she didn’t want him to touch her and “ran off back home”.[22]  The defendant subsequently approached her in her bedroom and hit her across the face before taking up a machete which he swung at her, embedding the machete in the wall above her head.  He told her “that if (she said) anything or rejected him again that that’ll be (her) head next time”.[23]  This incident constitutes Count 5 on the indictment.
  4. [31]
    In cross-examination, the complainant rejected the suggestion that the only notable thing that ever happened when collecting firewood was that the defendant disciplined her and she threw a small axe at him causing a cut to his leg.[24]  She further rejected the proposition that she had stolen money from the defendant’s room, swung a machete at him, cut him, and wedged the machete in the wall.[25]
  5. [32]
    On another occasion at Greenvale, the complainant was downstairs playing with the dogs.  Her mother was upstairs fixing dinner and her brothers were playing about 200 metres away. The defendant grabbed her and took her to a nearby car (“a silver Datsun”).[26]  He told her that they would “have to make this quick” and instructed her to pull down her pants and touch the ground.[27] She complied because she “didn’t want to get into trouble again”.[28] He then penetrated her vagina with his penis.  This incident (Count 6) would have occurred about a year after moving to the Greenvale house, making the complainant 13 or 14 years of age at the time.
  6. [33]
    From time to time, there were others who would stay at the Greenvale house.  They included a MV, her brother JV, and her infant child.  On one occasion, the complainant described being in her room sorting her cupboard when the defendant entered and locked the door.  He asked her to pull down her underwear and touch the floor.  She complied, not wanting “any repercussions as before”.[29] He placed his penis in her vagina before ejaculating on to the floor.  This incident constitutes Counts 7 on the indictment.
  7. [34]
    To the complainant’s recollection, she lived at the Greenvale house for about two and a half to three years. At some point during that time, the relationship between her mother and the defendant broke down.  The defendant then moved to the other end of the house.  When her mother left the house a week or two later, the defendant moved the complainant down to his bedroom.  A wall was removed to make the room larger and she was expected to have intercourse with him every night.  When her mother returned with her new partner to collect her children, the defendant instructed the complainant to go to her room and to lock the door, effectively preventing her from joining her brothers in leaving with their mother.  The complainant did not have verbal contact with her mother for several years thereafter.  She did not know where she was or how she could be contacted.
  8. [35]
    In cross-examination, the complainant rejected the suggestion that the reason she did not leave Greenvale with her mother and brothers was because of her dislike for her mother’s new partner, F.[30] When it was put to her that she was not held at the house against her will she replied:

“I was not held, sir.  I was told to go to my room like I was under a punishment and I was come [sic] and collected later on by Noel after my mum had left with my brothers. So I was not even aware that my mum had come to get me.”[31]

  1. [36]
    To the complainant’s recollection, it was in 1998 that she moved back to Townsville where she lived with the defendant and his three sons at the Pinari Street address.  One of those sons, DF, had formed a relationship with the complainant’s sister, L, and she, along with the two children of that relationship, also lived there.  The defendant enrolled the complainant at the local High School, but continued to have sexual intercourse with her on a regular basis – “every night”.[32]  They occupied the same bedroom.  Most of the time she would try to refuse him and say no, but the protest was ignored and the sexual intercourse continued regardless. 
  2. [37]
    In early 1999, she discovered that she was pregnant.[33]  She had received only limited sex education at school at the time and “had no idea what was going on”.[34] When the pregnancy was confirmed, the defendant was happy and told her she “would like being a mum”.[35]  The sexual intercourse continued and eventually the complainant had ceased attending school.  The complainant gave birth to her first child J on 1 November 1999.  J’s birth certificate does not record the name of his father.[36] The complainant had gone with the defendant to register the child’s birth, but the defendant had told her not to record his name as the father as she “would get into trouble”.[37]  The defendant directed her to complete a Centrelink form telling her to “make up a story” so that he is not mentioned as the child’s father.[38] The story the defendant instructed the complainant to record was that she had “gone out to a party and gotten drunk and got pregnant that way”.[39]  It is the conception of J which forms the basis of Count 8 on the indictment. The evidence establishes that the complainant was 15 years of age when J was conceived.[40]
  3. [38]
    After the birth of J, the sexual relationship continued as before.  The group moved to live at Gannet Crescent at Condon, where the complainant discovered that she was again pregnant.  She had not wanted the defendant to have sexual intercourse with her.  She describes the defendant as again being very happy, saying “I hope that we have a girl this time”.[41] The second child, JE, was born on 22 March 2001 and the evidence establishes that she was conceived between 10 June 2000 and 15 July 2000, when the complainant was aged 16 years.[42]  She had not consented to that act of intercourse.[43] Again, there is no recorded father’s name on the birth certificate.[44]  Her evidence is that the defendant “didn’t want to register a father’s name because (she) was still under 18”.[45]  He told her that they should make up a story as to the pregnancy – that she had been seeing an army officer, PB, stationed at 1RAR “who would pick (her) up on his motor bike”.[46] He told her to repeat the story until it became “second nature”.[47] The conception of JE provides the basis of Count 9 on the indictment.
  4. [39]
    From Gannet Street, the family moved to Hazel Street at Rasmussen. When leasing the house, the defendant told the real estate agent that he was the complainant’s step-father, just as he had previously represented himself to Centrelink staff.  By now, J had commenced at pre-school and the complainant had begun to form a circle of friends and develop some independence. This angered the defendant who told her that she was not to see anybody outside or talk to people at J’s school.  When the complainant protested, the defendant struck her across the face with a closed hand.  Her left cheek was puffy, bruised and red (Count 10).  Her evidence is that thereafter she “just did what I was told”.[48]
  5. [40]
    Thereafter, sexual intercourse continued to occur on a regular basis.  The complainant complied because she “was scared of what would happen if (she) rejected him again”.[49] She had not wanted to have sexual intercourse with the accused but a third child, JI, was born on 13 September 2004.  The complainant was now 20 years of age, and the birth certificate recorded the defendant as the father of that child.[50]  The defendant informed her that as she was now of the age of consent, there was no issue with him being named as the father.   A fourth child, DL, was stillborn on 28 March 2006,[51] and a fifth child, A, was born on 26 June 2007.[52] The complainant’s evidence is that she did not consent to intercourse on any of those occasions and it is the conception of JI, DL and A that are said respectively to constitute Counts 11, 12 and 13 on the indictment.
  6. [41]
    The relationship between the complainant and the defendant continued although on the complainant’s account, the defendant “started getting a bit violent again”.[53]  She had begun to form friendships without the defendant’s knowledge and when he became aware of this, she told him that “(she) didn’t want to be with him any more”.[54] The defendant “smacked” her head into some corner cupboards, pinned her to the ground and threatened to punch her (Count 14).  In cross-examination,[55] the complainant rejected the suggestion that the defendant was providing her with financial assistance at the time and that she had demanded an increased amount.  She rejected the suggestion that she had “jabbed” the defendant with a knife and punched and kicked him.
  7. [42]
    Following the assault, the complainant obtained a Domestic Violence Order and the defendant moved to his son’s house in Deeragun, with the complainant retaining custody of the children.  On one occasion, there arose a dispute involving access to the children.[56]  The defendant had removed them from the house of the complainant’s mother and the complainant had gone to the defendant’s house to collect them.  As she attempted to place one of the children, A, in her car, the defendant struck the complainant and pulled her hair (Count 15). 

Police Interview

  1. [43]
    On 23 April 2018, the defendant participated in a record of interview with Senior Constable Humphries at the Townsville Police Station.  During this interview, the defendant denied any sexual or physical offending against the complainant.  He denied that he was the father of the two first born children, J and JE.  He believed that his sons, TF and DF, were the fathers of those children.  He denied having had a relationship with the complainant’s mother, B, and said that they had never shared a bedroom at Greenvale.  He also denied sharing a bedroom with the complainant at Greenvale. He said that he had commenced a consensual relationship with the complainant about three or four months after the birth of JE.  During the interview the following questioning occurred:

“DEFENDANT:  He (J) was still a bubby, with, with the cot.  So, I stayed in there with him, because we had (JE) and she was in the cot with her, in her room.  And for about a coupla weeks, we sorta stayed in separate rooms and then she just kept pushin the issue, pushin the issue and I finally give in and I said, alright, if you promise you’re not gonna do the same to me as what my last wife did.  And she did exactly that.

SCON Humphries: Mmhmm.

DEFENDANT: Fucked me over. And now because I won’t leave the house, she’s changed, doin all this.  But I’m leavin the house.

SCON Humphries:  Alright.

DEFENDANT:  I just haven’t told her.

SCON Humphries:  Did you ever have sex with (the complainant) while she was under the age of sixteen.

DEFENDANT:  No.

SCON Humphries:  Have you ever had sex with (the complainant)  against her consent.

DEFENDANT:  No.

SCON Humphries:  Okay.  Um, and so what you’ve just told me there, that (JE), you’ve, the first time you’ve had sex with (the complainant), was when (JE) was three months old.  Um, and you were staying at, what was the address you said, sorry?

DEFENDANT:  (…) Frank Street, Kirwan.

SCON Humphries:  You were still staying at Frank Street?

DEFENDANT:  Yep.

SCON Humphries:  And you said you were staying in the room with your eldest boy, (J)?

DEFENDANT:  Yep.

SCON Humphries:  Ah –

DEFENDANT:  At that stage.

SCON Humphries:  And that’s when um, (the complainant) began pushing the issue?

DEFENDANT:  Yep.

SCON Humphries:  Ok.

DEFENDANT:  To be, have a relationship and I finally give in, because the kids needed a father.”

  1. [44]
    During the interview, the defendant also said that the complainant had left the Greenvale property in the company of her mother.  Only her sister L, then in a relationship with his son DF, had remained at Greenvale with the defendant.

Scientific evidence

  1. [45]
    A forensic scientist, Ms Jacqueline Wilson, gave expert evidence as to the paternity of the complainant’s children.  Ms Wilson’s expertise was not challenged, nor was there any challenge to the content of the evidence which she gave or to the opinions which she expressed.
  2. [46]
    She expressed the opinion that the DNA profile of J was 2.5 billion times more likely to have occurred if he was indeed the biological offspring of the complainant and the defendant, rather than if he was the offspring of the complainant and a random man unrelated to the defendant.
  3. [47]
    In relation to JE, Ms Wilson expressed the opinion that her DNA profile from that child was 14 billion times more likely to have occurred if she was the offspring of the complainant and the defendant, rather than if she was the offspring of the complainant and a random man unrelated to the defendant.  So far as the DNA profile from JI was concerned, that was 1.1 million times more likely to have occurred if JI was the offspring of the complainant and the defendant rather than if JI was the offspring of the complainant and a random man unrelated to the defendant.
  4. [48]
    In relation to A, Ms Wilson considered that her DNA profile was 11 billion times likely to have occurred if she was the offspring of the complainant and the defendant, rather than the offspring of the complainant and a random man unrelated to the defendant.[57]
  5. [49]
    In terms of the paternity of J and JE, Ms Wilson was able to exclude the defendant’s son’s TF, SF and DF as possible biological fathers.[58]
  6. [50]
    This evidence does not, of course, prove that the defendant is the father of the complainant’s children, but it is evidence as to the likelihood of that having occurred.  It is not absolute proof and of course the reliability of the evidence depends on the accuracy and reliability of the profiling tests carried out with respect to the relevant samples.  If there has been any contamination, for example, then the results of the testing may not be reliable.  In this case, and given the admissions made in Exhibit 20, there is no reason whatsoever to doubt the integrity of the testing process and the results subsequently obtained.  I have no hesitation in accepting the evidence of Ms Wilson, which, though not providing absolute proof, serves to provide compelling evidence as to the paternity of J and JE. 

Other evidence in the Crown case

  1. [51]
    B, the complainant’s mother, described how she had formed a relationship with the defendant in Townsville and subsequently moved with him and their respective children to Greenvale.  She subsequently formed a relationship with F and the two moved to Ingham where she spent several weeks seeking accommodation for her children.  When she returned to collect the children, she did not see the complainant and was told that the complainant did not wish to leave to go with her because of her relationship with F. She recalled some pushing and shoving occurring on that day, and probably some shouting, but is adamant that she did not see her daughter.  On the evidence, the complainant would have been 14 years of age at that time.
  2. [52]
    Significantly also, B gave evidence that there was no occasion when she and her daughter had together gone to a bathroom whilst the defendant was showering.
  3. [53]
    F described how, after finding suitable accommodation in Ingham, he and B had returned to collect her children.  He did not see the complainant but spoke to the defendant who told him the complainant was not going with them.  This was contrary to what had been agreed at a family meeting before the initial departure from Greenvale.[59]  He maintained in cross-examination that B had wanted her daughter to come with them, but “they wouldn’t let her”.[60] He was definite that he did not see the complainant on that day.
  4. [54]
    Several of the complainant’s brothers gave evidence.  CG gave evidence, as did his brothers, GT and GM, that their mother had been in a relationship with the defendant.  According to Goodwill, when that ended, the defendant moved to the room occupied by the complainant.  GT and GM also described such a shared bedroom situation.  On the day of the move to Ingham, CG recalls seeing his mother speaking to the complainant in the hallway of the house.  Neither GT nor GM, however, saw the complainant on that day.
  5. [55]
    CG was the only witness who recalls any conversation between the complainant and her mother on the day of the departure from Greenvale.  His evidence is contrary to that of the complainant, her mother and F.  Moreover, his two brothers were adamant that they did not see their sister on that day.  The defendant’s initial account in his interview with the Police was that the complainant had left with her mother.  The first time he makes any reference to seeing the complainant speak with her mother “in the hallway” was in the evidence which he gave during the trial. I am satisfied that the complainant’s account of the events of that day are both truthful and reliable.
  6. [56]
    MV had moved to live at the Greenvale house when she was 15 years of age.  She had gone there with her 10 month old child, the father of whom was the defendant’s son TF.  MV was, in my assessment, an unimpressive witness and her testimony is of little assistance.  In cross-examination, however, she did describe seeing the complainant and the defendant together in 2006 in Townsville when she observed “affection” shown between the two who were “a couple”. [61]

The defendant’s evidence

  1. [57]
    As indicated above, the defendant elected to give evidence in this trial in his own defence. I have set out above the approach which I take to his decision in that regard.[62]   He said that the account which he gave to the police was, to the best of his knowledge, both honest and accurate.  The one correction he wished to make was that he was mistaken in saying that DF was the father of J.  It was in fact SF.  When living at Jewel Court, there was never an occasion when he was alone with the complainant – “it was always a group”.[63] The only bathroom incident that he could recall was an occasion when he was showering and turned to see the complainant and her mother sitting on the bathtub. He told them to leave.  Thereafter, he made “100 per cent sure” that he was never alone with any of the kids.[64] He did recall an occasion at Pinnacle Drive when the complainant came into his bedroom at a time when he and the complainant’s mother was sorting clothes.  There was some disturbance from the other children outside squabbling over a video game.  All of them left the room “to find out what was going on”.[65] When living at Greenvale, there had been an occasion when collecting firewood when the complainant had thrown an axe at him causing a deep gash to his leg.[66] There was another occasion when, after the complainant had stolen money from him, she had cut his hand with a machete before embedding it into the wall.[67] He did recall the occasion when B had returned to collect her children, but the complainant did not want to leave with her.[68] It was only after the move to Pinari Street, that he began a sexual relationship with the complainant.  In his evidence-in-chief, he described that occurrence as follows:

“Now, in terms of when you commenced to have sexual relations with her, how many children – that you recall – how many children did she have at that time? --- Did she have?

Did she have? --- Yes, she had two.

Alright.  They’re obviously the first two, is that correct? --- Yes.

(J) and (JE)? --- Yep. (J) and (JE). 

Now, once you began that – is it fair to call it a relationship with her at that point? --- Yes. Well she asked me if we could get together – she actually begged me.  She said she couldn’t handle the kids, and she needed me around to help her, because of her age.

How would you describe the relationship between the two of you from that point on? --- Well, at first, I still slept on the couch. I said, ‘well, I won’t leave the house’. I said, ‘I’ll be here at all times except when I go to work. I’ll help you look after the kids, you go and do what you need to do’  I said, ‘I’ll be here to look after kids when I’m here’.

It had become an intimate relationship? --- No, it didn’t, at that stage.

Alright. --- Not for about nine months.

Alright. --- And then she begged me to go and sleep in her bedroom with her so we could be a proper couple, and I’m still dubious about it.”[69]

  1. [58]
    During the subsequent relationship, the complainant gave birth to the three children JI, DL and A.
  2. [59]
    During that relationship, the complainant had never expressed disinterest in engaging in sexual intercourse – “she always initiated it”.[70] There was an incident when the complainant had assaulted him, kicking him to the head because she was dissatisfied with his income for a particular week. Eventually, he left the complainant because he discovered that she had been claiming Centrelink payments.  He told her, “We’re supposed to be living as a couple and not you on Centrelink”.[71] On a later date, when he went to her house to discuss the children, she demanded money from him and when he refused, she assaulted him with a steak knife and otherwise physically assaulted him. Prior to the complainant turning 16, there was no sexual contact between them that “(he) knew of”.[72]  He denied ever having assaulted or having raped the complainant.
  3. [60]
    In cross-examination, the defendant said that he had not told police of the complainant’s violence towards him as he was trying to protect her.  He said that he was mistaken when he told the police that the complainant had left Greenvale with her mother.  He now conceded that he was the father of J and JE.  However, he had no memory of any sexual intercourse leading to those pregnancies.  He believed that he may have been drugged and raped by the complainant. 

Lies

  1. [61]
    It is submitted for the prosecution that there are a number of lies told by the defendant which demonstrate a consciousness of guilt on his part.  The particular lies relied on by the prosecution in this regard are these:
  • That he is not the biological father of J or JE;
  • That he was drugged and raped by the complainant to achieve the conception of J and JE;
  • That he never had a relationship with B;
  • That the complainant left the Greenvale property with her mother and three brothers.
  1. [62]
    The Crown argues that these are not simply “mistakes” due to faulty recollection, but are in each case matters of central importance to the issue of the offending against his partner’s daughter from the age of 11 years.  It is submitted for the defence, that I would not see any of these matters as amounting to deliberate lies and, in any event, they are consistent with the defendant’s concern for possible involvement with an offence other than one of rape. Defence counsel submits that it is apparent on the evidence that the defendant believed the age of consent to be 18 years rather than 16.
  2. [63]
    The defendant’s claim that he was drugged and raped can only be regarded as being completely implausible and probably represents a desperate attempt to explain the parenting of J and JE in the face of the overwhelming DNA evidence.  It is, however, open to the interpretation of being a lie told to avoid implication in the commission of some lesser offence such as unlawful carnal knowledge.  The defendant’s evidence concerning his relationship with the complainant’s mother is sometimes confusing, although certainly in his interview with the police, he denied the existence of such a relationship.  His statement that the complainant left Greenvale with her mother could be seen in the context of statements that followed in which he described the complainant as having gone with him when he moved from Greenvale to Townsville.  The prosecution argument is not without force in this case, but I accept that there exists a need for caution with the use of lies told by an accused person as evidence of consciousness of guilt.[73]  Ultimately, and not without some reservation,  I have come to the conclusion that the lies identified in this case should not be treated as so-called Edward’s Lies.[74] Rather, I intend to approach them on the basis that they are lies relevant to the defendant’s credibility.  I do not, of course, follow a process of reasoning to the effect that just because a person is shown to have told lies about something that that is evidence of guilt.

Other disreputable conduct

  1. [64]
    The defendant is, of course, charged with those offences that are set out in the indictment and the prosecution has led evidence of the conduct with which he is charged.  In addition, the prosecution has led other evidence of other incidents in which the complainant says there was sexual conduct by the defendant towards her.  She has described regular sexual intercourse having occurred without her consent both at Greenvale and during the time she lived with the defendant in Townsville.  The prosecution contends that if I was satisfied that those other acts occurred, that they would assist in my understanding of the background to the incidents which are the subject of the alleged offences and demonstrate the defendant’s sexual interest in the complainant. It is, of course, a matter for me to decide whether that evidence assists me in that way.  But I must ensure that I do not use that evidence at all unless I am satisfied beyond reasonable doubt that those other acts or any of them occurred.  Importantly, I cannot infer only from the fact that other acts may have occurred, that the defendant did the acts with which he is charged.  The offence the subject of any particular charge must still be proven to the requisite standard.

Delay

  1. [65]
    The complaint which ultimately led to the defendant being charged with these offences was not made to the police until 11 April 2018.  The long delay in reporting these matters has an important consequence, that being that her evidence cannot be adequately tested or met after the passage of so many years, the defendant having lost by reason of that delay, means of testing and meeting her allegations that would otherwise have been available.
  2. [66]
    By the delay, the defendant has been denied the chance to assemble, soon after the incidents are alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incidents occurred.  Had the complaint instead been made known to the defendant soon after the alleged events, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather, and to look to call at trial, evidence throwing doubt on the complainant’s story, or confirming the defendant’s denial – opportunities lost by the delay.
  3. [67]
    The fairness of the trial has necessarily been impaired by the long delay.
  4. [68]
    It would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, I am satisfied beyond reasonable doubt of its truth and its accuracy.
  5. [69]
    There is in this case an additional reason for the need to scrutinise the evidence of the complainant with great care before arriving at a conclusion of guilt.  It appears that in 1999, the complainant’s mother had made a complaint to police about the conduct of the defendant with the complainant.  On the 12 September 1999, the complainant had signed a “withdrawal of complaint” in respect of that complaint from her mother.[75] Moreover, the complainant herself had made a complaint to police on 9 December 2011.[76] Subsequently, however, on 5 December 2012, that complaint was withdrawn.  The evidence of the complainant was that she had withdrawn that complaint “because Noel had threatened to take the kids and go down south and I’d never see them again”.[77]  It was not until 11 April 2018, “that I was finally ready to deal with all this”.[78]

Absence of Motive to Lie

  1. [70]
    Counsel for the defendant has submitted that this was a case in which the absence of a motive for the complainant to lie had assumed some importance.[79] I did not understand the Crown Prosecutor in this case to, at any stage, make the suggestion or argument that it was relevant that the complainant had no motive to lie in making her accusation.  Nevertheless, 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 are many reasons why a person may make a false complaint.  If I am not persuaded that any motive to lie on the part of complainant has been established, it does not necessarily mean that the complainant is truthful.  It remains necessary to be satisfied that the complainant is in fact truthful. 

Preliminary complaint evidence

  1. [71]
    There was evidence during the Crown case, from GD, that the complainant had told him sometime in about November 2011 that the defendant had “molested her when she was at her mother’s place”.[80]  This had occurred in Townsville when she was about “13 or 14 years old”.  There is also evidence from a police officer, Senior Constable Polman, who investigated the domestic violence incident on 29 July 2011, that the complainant told him that the defendant “had been having sex with her since she 11 years old”.[81] This evidence of so-called preliminary complaint may only be used as it relates to the complainant’s credibility. Consistency between the account of those persons of the complainant’s complaint and the complainant’s evidence is something that I may take into account as possibly enhancing the likelihood that her testimony is true.
  2. [72]
    However, I must not regard these things said in those out of court statements by the complainant as proof of what actually happened. Evidence of what was said on those occasions may, depending upon the view I take of it, bolster the complainant’s credit by way of showing consistency, but they do not independently prove anything. Similarly, any inconsistency between the account given by those witnesses of the complainant’s complaint and the complainant’s evidence may cause me to have doubts about her credibility or reliability.  Whether consistencies or inconsistencies in fact impact the credibility or reliability of the complainant is a matter for me to determine.
  3. [73]
    Inconsistency in describing events are relevant to whether or not evidence about them is truthful and reliable and inconsistencies are a matter to be considered.  But the mere existence of such inconsistencies does not mean that, of necessity, the complainant’s evidence must be rejected.  Some inconsistency may be expected given such matters as the passage of time human recollection and the nature of events discussed.

Mistake of fact

  1. [74]
    It is accepted by the Crown that s 24 of the Code is raised here in relation to each of Counts 11, 12 and 13.  No such issue is raised in respect of Counts 8 and 9 where the defendant had said that the acts of intercourse did not occur or, at least, that he is not aware of them having occurred. For s 24 to be considered in connection with the issue of consent, there must be some evidence that raises a factual issue about whether the defendant believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way.[82] There is no such evidence in respect of Counts 8 and 9.
  2. [75]
    However, although the complainant has said that she was not consenting in respect of Counts 11, 12 and 13, there is evidence which raises the issue of an honest and reasonable mistaken belief on the part of the defendant that she was in fact consenting in each case.  A mere mistake by the defendant is of course not sufficient.  The mistaken belief in consent must have been both honest and reasonable. An honest belief is one which is genuinely held by the defendant.  A defendant’s belief is reasonable, when it is one held by him, in the particular circumstances, on reasonable grounds.  It is not for the defendant to prove that he honestly and reasonably believed that the complainant was consenting, but for the prosecution to prove beyond reasonable doubt that he did not honestly and reasonably believe that she was consenting. If I find that the complainant was not in fact consenting, I need to address the question as to whether I can be satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable belief that she was consenting.  Unless I am satisfied that the prosecution have proven beyond reasonable doubt that the defendant did not have such a belief, then the defendant is entitled to be found not guilty of the particular charge.
  3. [76]
    In this case, it seems clear that for many years after returning to Townsville, the complainant and the defendant lived together in a relationship that was, to external appearances at least, effectively one of a de facto couple.  Though the complainant has said that she does recall the relevant acts of intercourse, there is no evidence as to the circumstances other than to say that they were not consensual. In cross-examination, the complainant was asked the following questions and provide the following answers:[83]

“Well, the question is simple enough.  Can you recall any one of the acts of conception that resulted in the birth of (J), (JE), (JI), (DL) or (A)? -- You mean, do I remember him having sex with me?

On the occasion when they were conceived? -- Yes. I would say I do.

And you’ve said previously that he – frequently had sexual intercourse with him during the period you two were together, I use that term.  That’s still your evidence? That he would frequently have intercourse with you? -- Yes, sir.

Now, not every one of those acts of intercourse was you unwillingly, an unwilling participant, if I can put it that way. I’ll put it simply.  You were consenting to sexual intercourse with him while you two were together. -- When you say no to a person and they just continue anyway, you’re ignored all the time, what’s the point in saying no?

Are you saying that --- ? -- Truthfully, sir, 90 percent of the time I just laid there and then he’d get it over with so I could just get on with my life.

Alright.  So 90 percent of the time or the majority of occasions you would simply lay there and allow him to have sexual intercourse with you.  Is that a fair description of how things happened? -- There was no point in saying no.  It was ignored ---

Right. --- and happened anyway.

Question:  So is it fair to say that at some point early on in those years you simply stopped showing any signs that you weren’t interested? --  I didn’t show any signs I was interested.

Well, that’s not the question? -- I just shut down and just let him do whatever he had to do so that I could get away again.

And did that become the pattern of sexual interaction between the two of you then? That you would simply let him do what he wanted to do and that was your normal reaction to him wanting sexual intercourse with you? -- If I didn’t do it that way, he would just keep pestering and badgering and forcing himself on me anyway so there was no point in fighting back.”

The Defence Submissions

  1. [77]
    Mr Richards has submitted that the passage of time has created difficulties for the defendant in providing any detailed defence to the allegations made against him.  He emphasised the defendant’s evidence as follows:
  • That he did not engage in any sexual conduct towards the complainant until she was over 18 years of age and that that conduct was with the complainant’s consent, or if not, that he honestly and reasonably believed it to be with her consent;
  • That only the complainant’s last three children are his biological offspring and they were conceived and born in the context of a lawful relationship between the complainant and himself.  In cross-examination, he accepted the DNA evidence as to paternity of the first two children but cannot now recall any relevant acts of sexual intercourse;
  • That he either did not assault the complainant on the occasions alleged, or if he did, in the context of the interaction between them, it was not unlawful.
  1. [78]
    Mr Richards submits that the complainant, and the lay witnesses generally, were relatively unsophisticated people and the household was one which was, by some measures at least, unusual and somewhat dysfunctional. The need for caution in accepting the complainant’s evidence is highlighted by the withdrawal of the complaint in September 1999.
  2. [79]
    Mr Richards was critical of the complainant’s account, submitting that her evidence, though detailed and emotionally delivered, may have been feigned.  Some of the events which she described are unlikely to have occurred unnoticed and some disclosure to her mother might have been expected had they occurred. Although there is evidence from some of the witnesses that the complainant and the defendant had shared a bedroom at Greenvale, there is no other evidence supportive of her account.
  3. [80]
    There are some inconsistencies in the evidence, particularly as to the circumstances of her remaining at Greenvale and Mr Richards submits that her account of not being able to successfully contact her mother is improbable.  There is, he submits, a paucity of evidence of any preliminary complaint to those whom she might have been expected to complain.
  4. [81]
    The complainant’s evidence in relation to the alleged rape which resulted in the birth of her five children is described by Mr Richards as “particularly problematic” given her reference to a “normal relationship”.[84] Moreover, submits Mr Richards, although the complainant purports to recall the occasions, there is no detailed evidence from her as to those particular acts of intercourse which resulted in the conception of her children.
  5. [82]
    In relation to Counts 11, 12 and 13, the issue of the existence of an honest and reasonable mistaken belief in relation to consent is raised on the evidence.  This is particularly so where some witnesses, including MV, had noticed a degree of affection between the two when living in Townville.
  6. [83]
    Mr Richards submits that the defendant’s evidence should be considered in light of the passage of time and, although he now accepts the paternity of J and JE, it maybe that he simply can no longer recall the acts that led to their conception.
  7. [84]
    It is submitted that I would have a reasonable doubt in relation of Counts 1-7 as well as Counts 10, 14 and 15.  I would also have a reasonable doubt with respect to the defendant’s guilt of the remaining counts of rape in circumstances where the commission of the relevant acts of conception are not particularised.  Moreover, in relation to Counts 11, 12 and 13, the Crown have not excluded to the requisite standard the operation of s 24 of the Code.

The Crown’s submissions

  1. [85]
    The Crown case against the defendant relies on the complainant’s evidence of 11 years of what Ms Sheppard describes as the most appalling sexual offending.  The complainant’s evidence she describes as cogent, credible and consistent and should be accepted as reliable.  It contains no fundamental inconsistencies and her accounts of the defendant having intercourse with her before the age of 16, and in the case of the pregnancy with JE that occurred thereafter, is supported by the scientific evidence.  Her evidence was not challenged substantially in cross-examination and to the extent that it was, she rejected the alternative propositions put to her.  Her evidence was internally consistent.
  2. [86]
    The offending that comprises Count 1 occurred in a busy, blended household.  There was an element of grooming associated with the offending beginning when the complainant was aged about 11 and became more brazen. Ms Sheppard submits that the evidence establishes that the complainant was aged only 14 when her mother left the Greenvale property in 1998 and the defendant moved to share a bedroom with her.  The complainant describes being forced to engage in sexual intercourse with the defendant, with her first child, J, being conceived at Pinari Street when the complainant was aged 15.  Ms Sheppard describes the case against the defendant in relation to Counts 1-8, as strong.  Though others may not have observed the occurrence of Counts 1-7, the defendant was careful to choose his opportunities.  That the complainant did not complain to her mother is unremarkable in the circumstances.  The fact of sexual abuse since the age of 11 is consistent with the complainant’s account that she did not in fact consent to any sexual intercourse with him at any time.

Ms Sheppard was critical of the evidence given by the defendant, submitting that it was implausible and otherwise inconsistent.  He changed his account as to which of his sons was the father of J and only accepted his own responsibility in the face of the scientific evidence.  He told similar untruths in relation to the paternity of JE.  His belated account of being drugged and raped was never suggested to the complainant. His account changed in other respects as well: his relationship with B, the sleeping arrangements at Greenvale, the presence in the bedroom (Count 7), and whether the complainant had left Greenvale with her mother are but some of the matters identified by Ms Sheppard.  She argues that the defendant’s account is, in several respects, inherently improbable.  She submits that I would be satisfied beyond reasonable doubt of the truthfulness and reliability of the complainant’s evidence and that I would be satisfied that the Crown has disproved the application of s 24 in each of Counts 11, 12 and 13.  She submits that I would find the defendant guilty of each of the 15 charges.

Discussion

  1. [87]
    It is possible in this case to divide the alleged offending into two periods.   The defence case, as it was put to the complainant, was that the conduct which comprises Counts 1-10 simply did not occur. In relation to the alleged conduct thereafter, the defence case is that all sexual contact was consensual and that Counts 14 and 15 did not occur as described by the complainant.
  2. [88]
    The complainant, in my assessment, was a compelling and convincing witness. I accept the need for caution in using demeanour as an indicator of credibility and reliability, but the complainant here delivered her evidence with a level of conviction difficult to feign.  The passage of time and the fallibility of human memory are factors of relevance in assessing the evidence of all the witnesses, but there were no fundamental inconsistencies believed within the complainant’s account.  She provided a highly detailed account of the offending without an attempt of embellishment.  The scientific evidence supports her account as to the accused being the father of her first two children. 
  3. [89]
    I have indicated above the need for great caution in the circumstances of this case in approaching the evidence of the complainant.  Having done that, however, I remain firmly of the view that she was a compelling and convincing witness and in the end, I am satisfied of the truthfulness and reliability of her evidence in relation to all material issues.
  4. [90]
    I have set out above the evidence of the so called preliminary complaint that has been led in this case.  The disclosure to GD and to Senior Constable Polman do not contain details of any particular offence or offences with which the defendant is charged.  It is therefore not possible to compare the detail of these disclosures with the complainant’s evidence as to particular incidents.  The disclosures are consistent with the complainant’s general allegations and to that extent they are capable of supporting her credit. Irrespective of that evidence, however, I am satisfied of the truth and accuracy of the complainant’s evidence.
  5. [91]
    The complainant was the subject of criticism for having made no complaints of the defendant’s conduct to her mother.  The unfortunate reality is that delay in reporting is not uncommon in cases such as this where a complainant has been subjected to threats and intimidation from an adult in the situation of this defendant.  Moreover, it might fairly be said, as the Crown Prosecutor has here submitted, that the attitude of B to her responsibilities as a mother left much to be desired.
  6. [92]
    As to the criticism made of the complainant for having withdrawn her complaint in 2012, I accept her explanation that that had occurred as a result of the threats made to her by the defendant.
  7. [93]
    The defendant, on the other hand, was an unimpressive witness. His account was in many parts inconsistent and inherently implausible. His account changed as to whether he had had a relationship with the complainant’s mother, saying at one stage that there had been no relationship but saying elsewhere that she had started “coming on to me” and inviting him to “have sex with (him)”.  His account changed as to whether the complainant had left Greenvale with her mother and as to the paternity of the first two children.  He had at one point, when speaking with the police, made reference to JE as his “daughter” only to say in cross-examination that he had been mistaken as he classed “all kids around (him) as (his) kids”.[85] His evidence as to the sleeping arrangements at Greenvale was often confused and inconsistent, particularly as it related to the room in which the complainant slept.
  8. [94]
    In other respects, the account given by the defendant was, at best, highly improbable.  His account that he had “finally given in” to the insistence of the complainant, 32 years his junior, who had “begged” him to establish a sexual relationship, simply lacks credibility in my view.  I have referred elsewhere to the implausibility of his evidence that he had in some manner been drugged and raped by the complainant. These matters all reflect significantly on the defendant’s credibility.
  9. [95]
    The mere fact that I might not accept the evidence of the accused should not lead to an automatic conclusion of guilt. I should put that assessment to one side and determine whether, on the basis of such evidence as I do accept, the defendant’s guilt in relation to any particular charge has been established to the requisite standard.
  10. [96]
    In relation to each of Counts 3, 6, 7, 8 and 9, the defendant denies that those acts of carnal knowledge as alleged.  The defendant’s suggestion during cross-examination that Counts 8 and 9 might have occurred after he had been drugged and subsequently raped is not supported by any evidence and such an occurrence was never suggested to the complainant.  Indeed, that suggestion is not consistent with the propositions put to the complainant by defence counsel during his cross-examination.[86] I accept her evidence that those events, as well as those which are the subject of Counts 2 and 4 occurred as the complainant has described.  I also accept her account in relation to each of the offences that comprise Counts 5, 10, 14 and 15.   The commission of those last mentioned offences is consistent with the general history of events as described by the complainant.
  11. [97]
    There are, however, different considerations which arise in relation to Counts 11, 12 and 13.  Unlike Counts 3, 6, 7, 8 and 9, the defendant contends that in relation to those counts, the acts of intercourse were consensual and occurred during the course of an ongoing relationship.  I have little difficulty in accepting the proposition that the complainant was someone who was, effectively, trapped in a controlling and demeaning relationship.  In such circumstances, her submission to an act of intercourse does not equate to consent.  The real difficulty, however, is whether in the absence of any evidence concerning those particular acts of sexual intercourse relied on, I can be satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable unmistaken belief as to the issue of consent. The matter is a difficult one but ultimately, having regard to the exigencies of proof and to the evidence set out above,[87] I have to the view that I cannot be so satisfied in the absence of such detailed evidence.

Verdicts

For these reasons, my verdicts are as follows:

Count 1 – Guilty

Count 2 – Guilty

Count 3 – Guilty

Count 4 – Guilty

Count 5 – Guilty

Count 6 – Guilty

Count 7 – Guilty

Count 8 – Guilty

Count 9 – Guilty

Count 10 – Guilty

Count 11 – Not guilty

Count 12 – Not guilty

Count 13 – Not guilty

Count 14 – Guilty

Count 15 – Guilty

Footnotes

[1] See R v FAX (2020) QCA 139

[2] Exhibit 30

[3] Exhibit 18

[4] T4-5 line 5

[5] Exhibit 23

[6] Exhibit 24

[7] R v Makary (2018) QCA 258

[8] Transcript of Proceedings of 27 March 2020 T1-7 line 24

[9] Ibid T1-14 line 18

[10] Ibid T1-14 line 20

[11] Ibid T1-12 line 15

[12] Ibid T1-12 line 24

[13] Ibid T1-13 line 35

[14] Ibid T1-13 line 10

[15] Ibid T1-13 line 24

[16] Proceedings of 3 April 2020 T2-18 line 45

[17] Ibid T2-19 lines 21-24

[18] Transcript of Proceedings of 27 March 2020 T1-15 line 45

[19] Ibid T1-16 line 7

[20] Ibid T1-16 line 19

[21] Transcript of Proceedings of 3 April 2020 T2-19 lines 37-40

[22] Proceedings of 27 March 2020 T1-18 line 39

[23] Ibid T1-19 lines 8-9

[24] Transcript of Proceedings of 3 April 2020 T2-22 lines 12-25

[25] Ibid T2-23 lines 5-20

[26] Transcript of Proceedings of 27 March 2020 T1-19 line 32

[27] Ibid T1-19 line 33

[28] Ibid T1-19 line 39

[29] Ibid T1-22 line 39

[30] Proceedings of 3 April, 2020 T2-20 line 19

[31] Ibid T2-24 line 25

[32] Proceedings of 27 March 2020 T1-25 line 14

[33] J was conceived between 9 January 1999 and 14 January 1999 see Exhibit 20

[34] Ibid T1-27 line 20

[35] Ibid T1-27 line 29

[36] Exhibit 6

[37] Ibid T1-29 line 8

[38] Ibid T1-29 line 41

[39] Ibid T1-30 line 1

[40] Exhibit 20

[41] Ibid T1-31 line 29

[42] Exhibit 20

[43] Ibid T1-32, line 39

[44] Exhibit 9

[45] Ibid T1-32 line 2

[46] Ibid T1-32 line 10

[47] Ibid T1-28 line 19

[48] Ibid T1-34 line 29

[49] Ibid T1-34 line 40

[50] Exhibit 11

[51] Exhibit 13

[52] Exhibit 15

[53] Transcript of proceedings of 3 April 2020 p2-10 line 14

[54] Ibid T2-10 line 26

[55] Ibid T2-27 line 13-32

[56] Ibid T2-12 line 5-30

[57] T3-5 lines 5-43

[58] T3-6 line 15

[59] T3-12 line 27

[60] T3-16 line 19

[61] T3-24 lines 31-46

[62] Paras [8] at [9]

[63] T4-6 line 6

[64] T4-6 line 31

[65] T4-7 line 18

[66] T4-8 line 34

[67] T4-11 line 30

[68] T4-12 line 1

[69] T4-12 lines 25-46; T4-13 lines 1-4

[70] T4-13 line 25

[71] T4-14 line 33

[72] T4-15 line 42

[73]R v Nash (2020) QCA 127

[74] R v Edwards (1993) 178 CLR 193

[75] Evidence of Sergeant JL Shepherd T3-69 line 35

[76] Proceedings of 3 April 2020 T2-13 line 16

[77] Ibid T2-13 line 46

[78] Ibid T2-14 line 31

[79] R v Van der Zyden (2012) 2 QdR 568

[80] T3-51 line 44

[81] T3-62 line 20

[82] R v Makary (2018) QCA 258

[83] Proceedings of 3 April 2020 T2-26 lines 1-38

[84] Proceedings of 3 April 2020 T2-4 lines 1-3; T2-5 line 44; T2-10 lines 14-15

[85] T4-16, line 26

[86] Proceedings of 3 April 2020 T2-29 lines 30-36

[87] Para [76]

Close

Editorial Notes

  • Published Case Name:

    The Queen v NF

  • Shortened Case Name:

    The Queen v NF

  • MNC:

    [2020] QDC 206

  • Court:

    QDC

  • Judge(s):

    O'Brien CJDC

  • Date:

    30 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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