R v R[2003] QCA 285

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA:  I have read the reasons for judgment of Jerrard JA and I agree with the orders he proposes for those reasons, and for the further reasons of Williams JA.

[2]  WILLIAMS JA:  All matters relevant to this appeal are fully set out in the reasons for judgment of Jerrard JA which I have had the advantage of reading.  As is demonstrated by consideration of authorities such as R v W [1998] 2 Qd R 531, R v D [2001] QCA 126 and R v M [1997] 1 Qd R 404 instances of violence in the domestic environment have been held to be relevant to charges of sexual offences committed within that environment.  Here the complainant, without objection, gave evidence of acts of violence committed by the appellant on her or to her knowledge on her sisters.  When the case put in cross-examination suggested that the defence was mounting a positive case that any so-called violence was within the normal range of parent/child chastisement, the learned trial judge permitted the prosecution to lead more detailed evidence as to acts of violence within the domestic environment.

[3] As pointed out by Jerrard JA, some of the additional evidence of violence may have related to things done after the date of the last act of rape alleged in the indictment.  But that issue was not raised at the trial, and further questioning, if the point had been raised, may well have established that the events in question occurred prior to that date.  Further, it was not clear that all the acts of violence, particularly those referred to in the evidence of TM, were known to the complainant.  Again that issue was not canvassed at trial, but it is clear that such evidence was consistent with acts of violence committed on the complainant or known to her. 

[4] The evidence as to violence challenged by the appellant on the appeal essentially only confirmed evidence of violence given without objection by the complainant.  That challenged evidence was only admissible because of its prejudicial effect, and that did not, in the circumstances, exceed its probative value. 

[5] The evidence in question was, in my view, admissible.

[6] I do not need to add anything to what Jerrard JA has said with respect to the other grounds of appeal against conviction.

[7] I also agree that the sentencing imposed was manifestly excessive, and that a sentence of eight and a half years imprisonment should be substituted.

[8] I agree with the orders proposed by Jerrard JA.

[9]  JERRARD JA:  On 24 February 2003 R was convicted by a jury of two offences of having unlawfully and indecently dealt with T, committed when she was under 12 years of age.  T is R’s stepdaughter.  He was further convicted of two offences of raping T.  He was sentenced that same day to 10 years imprisonment on each of the counts of rape, and two years imprisonment on the counts of indecently dealing.  All sentences are to be served concurrently.  He has appealed against his convictions on all four counts, and applies for leave to appeal against the sentence of 10 years, arguing that it is manifestly excessive.

[10]  The offence of indecent dealing alleged to have first been committed was charged as having occurred on a date unknown between 31 December 1969 and 1 January 1972.  The second offence of indecent dealing was alleged to have happened on or about 5 November 1971, on Guy Fawkes’ night.  The first of the two offences of rape was alleged to have occurred on or about 18 May 1977, and the second on a date unknown between 31 of August 1977 and 1 October 1977.  All offences occurred in Brisbane.

The Appeal

[11]  The appellant’s amended grounds of appeal complain that the trial was a miscarriage because of the admission of irrelevant and highly prejudicial evidence, in that:

“(a)The learned trial Judge encouraged and permitted counsel for the Crown to re-examine the complainant about alleged acts of violence by the Appellant, after refreshing her memory from specific paragraphs of her statement;

(b) The learned Judge permitted the Crown to call evidence of alleged acts of violence towards other members of the complainant’s family;

(c) This evidence was admitted when it was clear from the cross examination of the complainant that the defence case was that there was no sexual contact between the complainant and the Appellant, so that the issue of consent was not a real issue in the trial;

(d) The learned trial Judge emphasised this evidence by reading it in detail to the jury in the course of the summing up.”

[12]  The other grounds of appeal were:

“(A)The trial Judge erred in admitting the evidence of CB of a conversation he had with the Appellant in late 1998;

2. The learned trial Judge failed to give a proper Longman direction in that he undermined the effect of the warning by permitting the jury to use the evidence of CB as corroborative of the complainant and thereby negating the effect of the warning;

3. The learned trial Judge erred in admitting the evidence of the complainant running away from home in late May of 1978, some eight months after the last count charged in the indictment.”

[13]  The argument that was developed on the hearing focused upon grounds (b) and (d), with the central issue being the asserted inability of the prosecution to establish on the appeal that evidence led at the trial of acts of violence by the appellant, to other of his stepchildren and not the complaint, was relevant and admissible.  Arising from this was the prejudicial effect this evidence would have had upon the jury, likely to have been increased by the trial judge reading the evidence in detail in the course of the summing up.  The prosecution position on the appeal was that if it could not sustain the argument that the evidence was admissible, this court should exercise its powers pursuant to s 668E(1A) of the Criminal Code and dismiss the appeal, if satisfied no substantial miscarriage of justice had actually occurred by the appellant’s convictions.

The Complainant’s Evidence of Abuse at T Street

[14]  The complainant T was born on 8 June 1963.  She, her 18 months younger sister TS, and her youngest sister DB (18 months younger than TS) are the daughters of J.  The complainant’s parents separated when she was about five years old, and her mother P married the appellant R on 16 January 1977.  They had first entered into a relationship in 1970 when P was living in T Street.  R lived nearby at that time, and visited her home a good deal. 

Count 1

[15]  The complainant, who was a married woman by the time of the trial, described in evidence how at that stage R used to discipline the three girls on his visits, by smacking them sometimes.  She described an occasion, count 1, when R was helping her mother paint the kitchen in T Street, and when T was alone in it with R.  She described his sitting on a table, telling her to come and sit with him, and then unzipping his pants and exposing his penis to her.  Her invited her to either “touch” or “play with” his penis, and to “kiss it and lick it,” or to “rub it” and “stuff like that”.  (AR 75).  She recalled declining to, and his then placing her hand on his penis and moving her hand up and down.

[16]  She described that as not being the first time anything of that nature had occurred and how from when she was in either grade two or grade three, and then aged around seven or seven and a half, he would enter the bedroom she shared with her two sisters, remove her from the bed, take her to the kitchen, and invite her to kiss his penis and “lick it like an ice cream, things like that.” (AR 76).  R was not then actually living with T’s mother, and she complied with these requests because she was too scared to say no.  Occasionally she would attempt to end the events by telling him she had to go to the toilet, or was tired and had to go to bed, but he would get her out of bed and get her back again. 

[17]  She described how R had suggested to her mother that it would be a good idea for the child T to learn a musical instrument, and how R offered to teach T the guitar.  She attended at his mother’s nearby residence where he then lived, a house around the corner from T Street, for some four to six weeks for guitar lessons there.  She said that R would say that he felt tired, wanted a little lie down on the bed, would invite her to have one as well after the lesson, and then during that lie down would put “his fingers inside of my vagina, climb on top.” (AR 77).  She said she was really scared and “petrified, terrified” when this was occurring, and that she was both really sore and very uncomfortable.  The activity involved a lot of what she described as “pulling and tugging”.  She also described how when inserting his finger R would spit on them as a lubricant, and gain access to her genitals by pulling her underwear to one side. (AR 77).  Additionally, when on top of her he would attempt to push his penis inside.  He was unable to achieve penetration.

[18]  She said she used to cry during these occasions but was too scared to say anything.  She told her mother eventually that she did not want to go any more, and she said in evidence she had not learnt anything, and R could not play the guitar anyway.  He was not a musical person and she could not see why she should go up there.

Count 2

[19]  She described the events which were the subject of count 2.  This was on Guy Fawkes’ night in 1971, when she was in either grade three or grade four.  She provided some particulars of the occasion, that being that R’s cousin M was present (although he apparently came every year); and M, who was an only child, brought the crackers to T Street.  She was feeling sick and went to bed early, and had chicken pox when she woke up the next morning.  During the night she swore that R “came and got me and took me to the kitchen again” (AR 79).  There he exposed his penis, made her rub it, kiss it, and lick it, and then let her go back to bed.  She swore she would not be able to guess “how many times that happened to me,” implying it was so frequent as near habitual. 

Count 3

[20]  She described an occasion which was count 3, a count of attempted rape, upon which the jury disagreed and were discharged without returning a verdict.  She said this occurred on a visit to Bribie Island.  She recalled being there with her aunt and uncle and their three children, who were all playing on the beach.  R decided to take her deeper in the water and teach her how to swim, and how while that occurred when in that deeper water “he pulled my swimmers to the side and tried to insert his penis into my vagina”, while “like bobbing up and down for the waves”.  (AR 82).  Penetration did not actually occur.

Abuse at a House in a Brisbane Suburb

[21]  She said that all she had described at that stage of her evidence had occurred whilst living at the T Street address.  R had never actually resided there; and the family left there when she was in grade five and moved to a house at a Brisbane suburb, where R and her mother commenced full cohabitation.  Her evidence described her experience in that residence as one in which R would come regularly into her room at night, before he went to her mother’s bed, and he would “have sex with me”. (AR 85).  Her description was of a routine abuse of her in which R would “start rubbing my private parts, spit on his hands, rub my vagina, climb on top of me, go up and down.  Then when he was finished he would hop off and go away”.  Penetration would occur, and did so before she had first started menstruating, which happened when she was about 12 and in grade seven.  The intercourse continued after she started menstruating (AR 85).

Excessive Force in Discipline

[22]  She said that R was “the head of the house. He was the main disciplinary person”, referring to his position in the family home.  She swore that “he used to hit us or kick us or punch us or hit us with whatever he could – whatever was closest to him” (AR 86); and she described an occasion when all three sisters were in the kitchen and between them clearing the table, wiping the dishes, and sweeping the floor.  She swore that one of the sisters was sweeping the floor, and because “we made too much noise or didn’t do it quick enough, he came in, grabbed the broom and hit us all with the broom over – on the back” and that “it really hurt and one of the – one of us got it broken on our back” (AR 86).  She went on to say that she was “really scared” of the appellant, “because I knew that he could hit – by hitting us, that – with the concrete walls in the house, we quite often were knocked up against the wall or our heads were against the wall, and there were – it hurt because it was concrete wall”.  She said she quite often had bruises, and that “if we had lots of bruises on our legs or arms, my mother used to make us wear long pants to school to cover up the bruises” (AR 87).

[23]  Asked how frequently the incidents that she described in her bedroom had occurred, she replied that she could not say with 100% accuracy, but it seemed to her that it was a constant torment, it could be every night.  She recalled a period in which R had gone to Western Australia for about six months, and that sexual intercourse had started between them again after his return.  Her description of the apparently regularly occurring intercourse would be that when lying in her bed she would hear R say “good night” or words to that effect to her mother (who was watching television), he would enter the complainant’s room, have sexual intercourse with her and then go to the bedroom he shared with her mother.  On her description her mother would routinely be watching television throughout, in the TV room at “the other end of the house” from the complainant’s bedroom.

Count 4

[24]  The specific occasion of sexual intercourse which was the subject of count 4, was described by T as having occurred on the first night of her mother’s confinement in hospital before the birth of the complainant’s younger half brother B, whom the complainant swore was born on 28 May 1977.  P recalled the date as 27 May 1977, but in any event LG, who was P’s sister and the complainant’s aunt, kept a diary to the accuracy of which LG swore, and in which she had recorded that P had entered the hospital to have B on 18 May 1977.  P could recall that she had gone to hospital about a week and a half before the birth.

[25]  The combination of LG’s diary, and the evidence of P and that of the complainant, meant that the complainant gave a very specific date and occasion for the act of rape alleged in count 4 and now described.  This was that on that night the house was dark, the TV was not on, and she saw R’s silhouette at her bedroom door.  She could hear him breathing, since he makes a whistling noise when he breaths through his nose “because it’s got a break in it” (at AR 89); and she closed her eyes hoping R would believe her asleep.  Instead, he got into her bed and intercourse occurred.  She described the nightie, a long sleeved long flannelette one, and that she had underwear on which R did not remove.  She swore that “he never took my underwear off. He either pulled it to my knees or pushed it to one side” (at AR 90).  She swore that on the occasion complained of in count 4, R pushed her legs apart, “hopped on top of me, pushed his penis inside of me” and then “moved up and down until he was finished and then he left”.  She did not say anything or attempt to push him off, and this was because she was too scared.  She did not know what to do, and she was just terrified.

Count 5

[26]  The intercourse which was the subject of count 5 was described by her as having occurred when her mother next visited hospital after B’s birth, which was when P “had her tubes tied” (AR 91).  The complainant had stayed home from school and had looked after B while her mother was in hospital, and the baby slept in a bassinet next to her bed in her room.  That night, while her mother was in the Wesley Hospital, R came into the room, got into bed with her, and intercourse occurred in the regular way.  She did not yell, push, scream, or do “anything” because she was scared and frightened; and the baby slept throughout.  The next day a friend of the family RH came around and scraped the paint off the lock on the bedroom door (the complainant had found a key to it), and that night the complainant locked the door.  She heard the door rattling during the night and R asking “what’s going on? Open the door”; and he eventually went away.  When her mother came out of hospital and she resumed school the key to her bedroom door lock disappeared.  Thereafter R continued to enter her room and intercourse continued to occur.

[27]  She swore to having run away from that home on 25 May 1978.  This was at least six months after the last act of rape alleged in the indictment, but of course on the complainant’s evidence intercourse had continued to occur.  Objection had been taken (at AR 53) to the admission of that evidence of her running away just before her 15th birthday, but it was ruled admissible by the learned judge (at AR 54) after the prosecution submitted that in its absence the jury would get a “skewed view” of “what was going on”.  The prosecution had submitted that it was important for the jury to know the overall context of her life with R, and that the jury would be anticipating that as the complainant grew older she might find some solution herself to her problems. 

[28]  Her evidence described having gone to her Aunt TM’s house in May 1998 and from there to her Aunt LG’s home.  She described hearing a conversation between the aunts and reference to “children (sic) services” (at AR 94), and she was taken back to the family home.  There she heard an argument and heard someone say “if it happens again we’ll ring children services” (AR 95); and thereafter when still living at the family home, if approached during the day by R, she would say to him “I’ll call children services. I’ll ring children services”, and R then “backed off”. 

[29]  She said that increasingly she “got a bit more guts” and used to “speak out a bit against him”, and she would tell him to “stop looking at me or call him a pervert”, to see if she could get her mother’s attention.  However, at night she was still too scared to oppose his will and “the same thing” continued to happen at night time in the home.  In the beginning of 1979, when the family moved to a new home when she was 15 and a half, she left school and started work.  There were no more sexual episodes.  She moved out of that home as soon as she got her licence.  She swore that she did not ever consent to any of the sexual activity that had occurred between her and R. 

Cross Examination of the Complainant

[30]  It was not suggested in cross examination that she did consent.  Rather, what was put was that none of that sexual activity she described had occurred.  The Crown had explained to the learned trial judge before the evidence started that it would lead from the complainant that her life with the appellant was “predicated by episodes of violence, without going into the details of those episodes” which the Crown said had caused the complainant to “acquiesce to his sexual demands” (at AR 50).  Counsel for R did not object to that foreshadowed evidence of violence as described by the Crown, and the evidence actually led in chief, already described, accorded with the Crown Prosecutor’s description of it in advance.  That evidence led was admissible for the purpose described, and no complaint is made about its admission on this appeal.

[31]  In R v D [2001] QCA 126, McPherson JA, delivering a judgment with which Davies and Williams JJA agreed, provided a description of the evidence in that matter which included evidence by the child complainant of not only sexual acts against her on other occasions, which acts had not been charged as offences, but also of uncharged acts of assault, some of considerable force or violence, perpetrated not only against her alone, but also against her brother or brothers and seemingly witnessed by her.  His Honour held that, on authority of R v W [1998] 2 Qd R 531, in which decision he considered the judgment in BRS v R (1997) 191 CLR 275 had been carefully considered and analysed, that evidence (i.e. including the evidence of uncharged acts of assault and some of considerable violence) was properly admissible as tending to show the relationship between the parties or as serving to place evidence of the offence charged in a true and realistic context.  Likewise, in the joint judgment of McPherson JA and Demack J in R v M [1996] QCA 230, that judgment (at page 7) quoted the remarks of Willes J in R v Rearden (1864) 4 F & F 76 at 80, where that learned judge, whose remarks were described in R v M as conveying high authority, had written:

“It has repeatedly appeared to me in cases of this sort, that the man, by a threat of violence, deters the child from complaining, and thus acquires a species of influence over her by terror which enables him to repeat the offence on subsequent occasions, and this seems to me to give a continuity to the transaction, which makes such evidence properly admissible.”

R v Rearden was described in R v M as having been referred to with approval in both R v Gellin (1913) 13 SR (NSW) 271 and R v Witham [1962] Qd R 49.  No doubt this body of authority explains why no objection was taken at trial or appeal to the evidence described so far.

[32]  In cross examination R’s counsel at the trial, in addition to putting that there had been no improper sexual dealings with the complainant, also put that at no stage had she been beaten with a broom.  The complainant disagreed with that suggestion, and likewise with the specific suggestions that at no stage had her head been banged against a wall.  She agreed that there was no mention in any of the statements she had made of being either beaten with a broom or having her head banged.  Likewise, she agreed that there was a good deal more detail about the two incidents which were counts 4 and 5 contained in a statement she had given on 17 February 2003, two days before the trial started, than was contained in an 11 page statement she had made on 10 May 2000. 

[33]  She also agreed in cross examination that when she married in 1983 aged 20, R “played the part of the father of the bride” (AR 105), in that he walked down the aisle with her, and gave her away; and that in around 1992 she, her second husband C, her mother, and R, were partners in a service station.  The partnership lasted for about one year.  Prior to that she had been employed for part of 1988 as a sales assistant in a dress shop that R owned.  She further agreed that the first statement she had provided (in May 2000) did not describe any conversation occurring on the occasion when R had placed her hand on his penis in her mother’s kitchen.  She acknowledged that while that statement described the incident having ended with R ejaculating, her actual evidence to the jury was that she could not recall how it ended.  She also agreed that when she gave her evidence that was the first occasion in which she had described herself crying as he digitally penetrated her.

[34]  She agreed that her evidence in chief had been that she now realised that the “sticky stuff” she recalled leaking from her after the occasions of intercourse would have been ejaculation, whereas there was no mention of any “sticky stuff” in her second and more detailed statement.  Likewise, there was no mention of her crying when being raped while her mother was in hospital giving birth to B in either her first or second statements, and her first statement said nothing about being hit by a broom or R having a distinctive breathing sound.  She agreed her May 2000 statement said nothing about her threat to ring the Children’s Services Department.

The Trial Judge Encourages the Crown

[35]  This was the attack made on T’s evidence up to the moment when some cross examination occurred which resulted in the learned trial judge allowing the Crown to lead both more evidence from the complainant in re-examination about violence she believed R had inflicted upon her sister TS, as well as evidence from her sister DB about violence inflicted by R on DB and on TS.  The question which provoked the learned judge into both suggesting that the Crown might wish to lead such evidence, and then ruling it admissible, was the proposition by defence counsel to the complainant that:

“….the chastisement and the discipline that he had over you was in the normal range of parent and child? – Wrong”.

[36]  The challenge made up to that point in cross examination had been limited to the propositions put generally denying use of the obviously excessive force the complainant had described, and denying that any improper sexual dealings had occurred at all.  Then there were relatively small quibbles, largely already described herein, concerning the fact of the emergence for the first time in either her second statement, or else in the witness box, of some of the complainant’s evidence.   The evidence to that point of the trial described an isolated, unhappy, and frightened child, who had been relentlessly sexually exploited since the age of seven, and who had ineffectually tried to resist that exploitation as she grew older.  That account had described years of continuing night time submission because of fear, and the quite regular use of quite excessive force in discipline, such that fear of R was natural.

[37]  The learned trial judge considered that the proposition that the complainant had experienced normal enough discipline had opened up for re-examination other areas of evidence not led in chief.  At AR 138 the learned judge ruled that that question did:

“….open up a further area because the statement from the complainant contains other incidents which show, really, that considerable violence was being used against the children in the family by the accused.”

The learned judge particularly referred to evidence in the complainant’s statement of violence to her sister TS.

[38]  The prosecution then led, in re-examination, evidence that TS had been caught smoking at school, and that R, upon learning of that, had taken TS into the bedroom and “belted” her.  T had not witnessed this but had heard it, and what she described was hearing R kicking TS, and TS’s body hitting the wall.  This went on for some 15 minutes during which T and her sister DB were crying, and her mother, who was also listening, got up and went into the bedroom and told the appellant to stop.  TS was described by T as being covered in bruises “all over”, and “especially” on her arms and her legs.  In further cross examination it was put that the incident as described did not happen and that her statement contained no reference to TS hitting the wall.

[39]  After that, the complainant’s mother was called.  She was an unwilling witness for the prosecution, and the appeal record discloses that she had chosen to exercise the privilege granted by s 11 of the Evidence Act 1977, which rendered her not compellable to disclose communications made to her by R during their marriage.  After some brief evidence from her of where the parties had lived, and her recollection that soon after she moved into the T Street address her kitchen had been painted by herself and the appellant, the learned judge returned in the jury’s absence to the issue of violence in the complainant’s family.  He expressed the view, (at AR 147), that that violence bore directly on the issue of consent in a case such as the one he was trying, in which the complainant girl had not manifested dissent from sexual penetration at the time it occurred.  His Honour referred to authority[1], and invited counsel to reflect on his observations.  P then returned to the witness box for some further short evidence in chief and cross examination, and the Crown then called DB’s husband, CB.

The Evidence of CB

[40]  The admission of his evidence was the subject of a specific ground of appeal.  That evidence was that in 1998 the appellant had telephoned DB and CB’s home, wanting to speak to DB to “tell my side of the story” (AR 155).  After some conversation it was agreed that CB would speak with R, and they met at a hotel.  There was no challenge in cross examination to the fact that R had initiated contact at that time with DB and CB’s household, nor that the appellant and CB met so that the appellant could put his “side”.  However, what CB swore the appellant said was challenged in cross examination.

[41]  His account was that the appellant had said to CB that he just had an infatuation with T, that “it wasn’t other kids”, and that “His exact words were that he didn’t drive around parks looking for kids, that it was just T”, and that the appellant kept repeating that last statement.  CB also recalled the appellant saying:

“I know this makes me a child molester but I don’t go around looking for other kids.  I don’t touch other people’s kids.” 

CB also remembered the appellant saying that when he realised that things were “starting to get a bit too heavy, …he moved to Western Australia”, and further that “all it was was just kissing and cuddling” and that “I never even put my finger in her”. 

[42]  It was suggested in cross examination that R had said there had never been any sexual activity, and CB agreed.  It was further suggested that R had said:

“All the girls ever got was a kiss and a cuddle from me.  Sex never entered my mind”;

but CB strongly disagreed with that.

[43]  That evidence from CB was clearly admissible as capable of establishing the “guilty passion”, or the existence of an unnatural or unexpected relationship of sexual intimacy, which was described in R v M in the joint judgment as the basis for admitting evidence of prior sexual acts between the same parties when hearing a charge of an offence of sexual character.  That joint judgment recorded that in R v Sakail [1993] 1 Qd R 312 the judgment of Macrossan CJ (relevantly the judgment of the court) had recorded (at 316) that:

“Circumstances which place the sexual side of the two persons relationship in perspective may be admitted in evidence.  Proof of similar activity or of activity of a related kind both before and after the specific acts charged may be given as showing the relationship between the two persons (in some context referred to as “the guilty passion)”.”

Similar observations as to the admissibility of evidence of other uncharged sexual acts to establish the existence of a sexual relationship between parties, or the “guilty passion” between them, were made by Pincus JA and Muir J in their joint judgment, and by de Jersey J (as his Honour then was) in R v W [1998] 2 Qd R 531, at 534 and 537 respectively. 

[44]  Those authorities and many others[2] establish that the evidence of the other uncharged acts led by the prosecution from the complainant was admissible to establish the fact of a sexual relationship existing between R and his stepchild, so as to put into the appropriately realistic and accurate context her evidence that on the specific occasions she nominated sexual dealings had taken place without her consent, but without any manifest dissent or complaint from her.  The account CB gave of what R had said to him about R’s relationship with his stepdaughter T was actually a description by R of the existence of exactly the unexpectedly sexual and intimate relationship which that other evidence of uncharged acts was also led to establish.  There is no complaint made on the appeal about the admission of evidence of those other acts, and there is no merit in the complaint about the admission of the evidence from CB.  It was evidence that gave strong support to the complainant’s description of a sexualised relationship with R, which relationship, on the authority of R v M and R v Sakail, was capable of corroborating the particular acts charged in the indictment. 

Evidence from DB

[45]  Returning to the matter relevant to the substantive ground of appeal, the prosecution having called CB, then called DB.  R’s counsel objected to the evidence to be led from her, on the ground that the violence she would describe being inflicted on her, and on her sister TS, “just takes it so far over the edge in terms of what the jury will be confronted with” that the risk of prejudice was “very, very high” (AR 163).  Counsel also submitted that there was “ample evidence” already from the complainant (AR 164) on the issue of violence to the complainant affecting the complainant’s submission to R, and that the trial was being “hijacked” by uncharged acts of violence against the complainant’s sisters (at AR 164).

[46]  The learned judge admitted the evidence from DB on the basis that it was relevant and probative as to the level of violence in the family, which bore on the question of consent to rape and “the failure of the girl to manifest her dissent” (at AR 166).  At the start of the trial the Crown had told the jury that they “may” hear from DB (at AR 41), and the prosecutor had told the judge he was not presently inclined to call that witness (at AR 49).  Following the ruling at AR 166, the prosecutor did call her, though counsel for R objected that the evidence to be led did not even refer to the presence of the complainant as a witness to it.

[47]  The evidence led from DB was very much restricted to evidence of occasions when violence was used on her or TS.  She did describe a recollection of the occasion at T Street when there was a fire cracker night and she had had chicken pox, which was when she was about five (she was born 5 July 1966).

[48]  Asked about discipline, she said that “I was scared for as long as I can remember”, and she described an incident occurring when she was “in about – in grade 7” (AR 173), and when she got into trouble because she had not had a shower before tea.  She was thrown down a hallway and kicked in the ribs by R.  Her rib was “really sore” (AR 178), and for quite a few weeks afterwards she had to play in a different position in her softball team, because she could not reach up.

[49]  Her evidence that that occurred in about grade seven means it may have happened in 1978, assuming she began school in grade one at age five and a half.  If so, it was after the last offence charged in the indictment.

[50]  She also described an occasion when she had visited a friend’s home two doors up, contrary to instructions, and R had hit her “all over my legs” with a switch taken from a weeping willow tree.  There was no evidence as to when this happened.  She too described an occasion when a broom stick was “cracked on my back” (AR 179), and which was witnessed by both of her sisters.  This may have been the occasion T had described.

[51]  She said that discipline was “usually…just one hit, one hit in the face” (at AR 180), always done with sufficient force to “knock us back”, and administered with an open hand.  She demonstrated a back hand and then forward motion of double slapping when describing that in the witness box.  She too described the occasion when TS “got into trouble for smoking” and was “bashed up really, really bad” (AR 180), and like the complainant described sitting with T and their mother and hearing “the hits and the crying and it just went over and over”.  She said TS had “the worst marks on her arm, that it was so bad I thought her – we thought her arm…was broken”.  She did not describe when that occurred, but T’s description of that had included that “I would have been about 14, TS would have been 13” (at AR 140), which means that that incident may have occurred after the date of the last count in the indictment.  If TS was 13, then T would have been at least 14 and a half, which would have been in December 1977.  It was never clarified by anyone as to whether the incident occurred before the rape charged in count 5.

[52]  DB also recalled a second time when TS was physically attacked for smoking, which she described as being “very similar to the first time.  It was the same.  He – my stepfather went to the bedroom and chose the belt and came back to the lounge room and – I can remember seeing him pick her up and hit her. That’s all I can remember”.  She described the belt as having a row of silver studs on it, and said that she was scared, and scared that she herself would be hit (at AR 181).  Her evidence did not describe when that second, and presumably later, occasion occurred.  Clearly it is open that it was after the occasion of count 5, or possibly before.

[53]  DB could recall the occasion when T had run away, and her return to the house.  DB recalled in evidence how after that return T “used to tell him, ‘Don’t touch me or I’ll call child services’” (at AR 182).

[54]  The cross examination of DB challenged her description of having been hit with a weeping willow branch, on the back with the broom stick, and being kicked in the ribs.  It was put that those incidents did not occur.  It was also put that no belt had ever been used on TS.  There was no specific challenge to her description of being disciplined by slaps to the face with an open hand delivered with some force.

[55]  Finally, in this extra lot of evidence called by the Crown, the complainant’s aunt TM was called, and she described an occasion when she had gone to visit the family and had seen on arrival that “R was bashing DB, like hitting her sort of up against the wall and she was trying to run away from him and as she sort of – he was hitting her on the way out the back door and she fell down the back stairs” (AR 190).  No date was supplied for that incident which may have well been after the occasion of count 5; DB was described as being “about nine or something” (AR 190). Cross examination was limited to the suggestion the event did not occur.

[56]  It is possible that other than the occasion described by T when she heard TS being assaulted by the appellant for smoking, the incidents which DB described where she herself was assaulted, or TS was, may not have been known to the complainant, as well as mostly occurring after the last charged act.  Insofar as the complainant’s knowledge of them is concerned, there is considerable force in the observations by the learned trial judge when ruling that later given evidence admissible, namely that in the nature of things if the appellant used excessive violence to one of the children in the family, then the ordinary course of events is that the other children “are going to know about it even if they don’t see it” (at AR 166).

[57]  The appellant neither gave nor called evidence.  The challenge made to T’s evidence of prolonged sexual abuse upon her and of the indecent dealing and rape committed upon her on the specific occasions described in counts 1, 2, 4 and 5 was limited to a very general denial.  There was no suggestion made in cross examination that R was not present in the house on the night of his wife’s first evening of confinement prior to having their only child, or on the night when she later went to hospital to be rendered infertile.  Those are both nights in the appellant’s life about which it is reasonable to think he might actually have some recollection, they being significant occasions.  If the evidence of T was a fabrication, extraordinary risks were taken in putting forward such specific occasions about which her evidence accused him.  There was no challenge in cross examination to a single one of the various circumstantial details her evidence described, such as that on the Guy Fawkes’ night M was present, and the fact of her chicken pox the next day; where the bedrooms were, and that her mother routinely watched television alone after the appellant had said he was going to bed, (and then routinely had time to violate the complainant); that there was a key to her bedroom door of which she was briefly in possession after having locked it, on one occasion only; that she had run away as described and had threatened R during day time occasions that she would call “children services” after her return; that TS was disciplined for smoking, and all the sisters on one occasion when they were making too much noise in the kitchen; that she had guitar lessons for a short period taught at his mother’s, and that he would rest on the bed afterwards, and with her.  It appeared to be accepted in cross examination that the appellant did use physical force in disciplining the children, at least by slaps to the face.

Admissibility of Evidence of DB and TM

[58]  Senior counsel for R submitted that the evidence of DB and TM, insofar as it described events occurring after the occurrence of count 5 or which were not shown to have been known to T, was inadmissible.  The same submission was made, but not forcefully, about the evidence of her running away from home.  The complaint was made that both lots of evidence, but particularly the evidence of DB and TM, had the capacity to inflame the jury against the appellant, and even if admissible had little probative value.  It was submitted that the limited nature of the challenge made in cross examination, and the implicit concession said to have been made by the nature of that cross examination, (namely that if sexual intercourse or dealings had occurred, then they were as alleged all without consent), rendered the evidence of DB and TM unnecessary for the prosecution, as the Crown itself had clearly considered at the start of the trial.  This meant that the evidence had only prejudicial effect.

[59]  The evidence of DB and TM, if accepted, showed that R was relatively unrestrained in the violence he used on the complainant’s two sisters when purporting to exercise disciplinary authority over them, making it very likely that T was accurate in her description of the like largely unrestrained violence she had experienced and witnessed in that household.  Experiencing that violence and knowing of its propensity was directly relevant to her explanation of non-consensual submission to sexual exploitation because of fear.  Another implicit feature of that evidence of DB and TM was its description of R’s dominance in the household, and his pervasive control of it, apparently unchecked by any concern for how others would view him. Thus, he assaulted the nine year old DB within her aunt’s sight.  On the assumption that some of the acts described in evidence occurred after the events in count 5, that evidence demonstrated the continued existence of a high level of control, through violence, by R over his stepdaughters.  The relevance of this to the charges involving T is that, as the Crown Prosecutor submitted to the trial judge, the jury would undoubtedly be looking for an explanation as the years went by as to what the complainant did to protect herself as she grew older.  What that other evidence demonstrates is that there was very little she could do, while she remained in that house and subject to the physical and mental domination of R, which domination affected all three sisters, and continued after the event of count 5.

[60]  Therefore, on the assumption that some of those acts done to her sisters were unknown to T (not particularly likely, as the learned trial judge noted) and that some or perhaps all of what those witnesses described occurred after the last sexual act the subject of a charge, that evidence was admissible.  For the reasons identified by the learned trial judge, it was relevant and probative as demonstrating the level of violence in the family, which in turn was relevant to the question of consent and the lack of manifest dissent to sexual dealings and intercourse by T when a child and later a young adolescent. 

[61]  On that view the matter becomes simply one of assessing the prejudicial effect of that evidence, balanced against its probative force.  The evidence was always admissible, but the Crown Prosecutor made a sensible forensic decision at the start of the trial to limit the description from the complainant herself to that evidence the prosecutor considered sufficient to make the prosecution case.  While the trial judge may not have been correct in his view that the questions asked in cross examination had “opened up” that which had been discretely veiled from the jury’s view up to then, that did not affect its admissibility.  R’s counsel at trial did have the opportunity of further cross examining the complainant to challenge her extra evidence, and a complete opportunity to cross examine all other witnesses.  The very limited challenge which was made simply makes the evidence given appear more credible, rather than making it less relevant. 

[62]  The evidence about which the appellant now complains did have a great capacity to prejudice the jury against R, but only about and because of matters which were probative and relevant for the reasons explained.  The limited cross examination did not relieve the Crown from the need to prove the absence of consent in the counts of rape, and the prosecutor’s commendable caution did not make inadmissible the evidence of the relationships within that household probative of the complainant’s description of her life in it, and its effect on her response to R’s dealings with her.  The learned judge was therefore justified in admitting and not excluding that evidence. 

[63]  This is sufficient to dispose grounds (iv) (a), (b), and (c) of the grounds of appeal.  With respect to ground (iv) (d) the learned trial judge did read the evidence of DB and TM to the jury.  His Honour however had given the jury careful directions as to how they should deal with both the uncharged acts of sexual wrong doing, and the evidence they had heard about R’s violence.  Regarding uncharged sexual acts, his Honour had directed the jury that those had been led as relevant because if accepted they might explain the nature of the relationship between stepfather and stepdaughter, and that the prosecution case was that those other uncharged acts showed the accused man had felt a sexual attraction for the complainant.  The judge instructed the jury that those other uncharged acts were not relevant if the jury merely thought they demonstrated that R had a tendency or a propensity to commit offences of the type charged, and that it was necessary for the prosecution to prove beyond reasonable doubt that the particular incidents charged had occurred.  They were told that if not so satisfied they must acquit, even if they thought R had interfered with the complainant on other occasions.  These directions largely appear at AR 272-273. 

[64]  The learned judge enlarged on those slightly to explain (at AR 273-4) that the jury must not reason from those other uncharged acts that if the accused had committed those, he must have committed the specific offences charged.  His Honour then went on (at AR 274-5), to warn the jury that the use they might make of violence was a very limited one, which “comes into play” when the jury was considering whether the complainant had consented to the two acts of rape.  He instructed the jury that that was the only relevance that violence had in the case, and that it was very limited.  They were warned not to reason that the appellant used excessive discipline or violence towards the children, and that therefore he must be a bad man, a violent man, with a propensity to inflict violence, and therefore guilty of the specific charges brought against him.  The jury were reminded that the question was not whether the appellant was a person with a tendency to violence, but whether the Crown had satisfied them that he was guilty of the specific charges.

[65]  His Honour returned to that point later in the summing up when directing the jury on the elements of the crime of rape, (as then defined by s 347 of the Code); and on the commission of rape by carnal knowledge had with consent obtained by fear of bodily harm. 

[66]  The judge directed the jury that fear of bodily harm was a state of mind, on the part of the complainant, which could be induced by conduct on the part of an accused materially separated in time from the act of sexual intercourse. There is no complaint about that direction.  The learned judge went on to direct the jury that the Crown case was that because of the antecedent history of various acts of excessive violence, the complainant was in fear of R, and for that reason did not say or do anything to indicate her lack of consent to what he did to her (at AR 289). 

[67]  The judge directed the jury that if they were satisfied that a feeling of fear and terror had been set up in the complainant by R’s various acts of excessive violence to the children in the family including the complainant, and that in consequence of that feeling of fear and terror the complainant allowed R to penetrate her without resistance or any dissent, then the jury might be satisfied that T did not consent. It was of course possible that she may have been a consenting party not influenced by fear or terror, but that was a matter for the jury.  It was subsequent to those directions that the judge read to the jury the evidence of DB and TM.

[68]  Towards the end of the summing up the judge reminded the jury of the submissions by defence counsel that they should not reason, as the learned judge had also directed, that because the appellant had been violent therefore he must have committed the offences.  The judge also reminded the jury that there was no evidence that R made any threats towards T at the time of the occasions of intercourse the subject of the indictment, or that he used violence towards her on either of those two occasions, apart from the fact of penetration.

[69]  The learned judge might have repeated at that later stage his earlier warnings on the very limited use the jury might make of the evidence of violence, but failure to do so does not constitute an impermissible emphasis placed on that evidence.  The limits on its relevance had been clearly explained earlier, and at that stage the judge was explaining what its relevance was.  The trial did not miscarry because of those directions.

[70]  With respect to ground (B), the learned judge did direct the jury (at AR 275-6) in accordance with the directions of the High Court in Longman v R (1989) 168 CLR 79 at 91, and the further directions in Doggett v R (2001) 208 CLR 343 at 355-356 and 381.  He reminded the jury that had the allegations been made by the complainant soon after the alleged events, it would have been possible to explore in detail the surrounding circumstances and perhaps to obtain evidence that might throw doubt on what the complainant said.  He directed the jury that they might think that many years later that opportunity had been lost and that the appellant could not now explain in detail the circumstances surrounding those incidents; and that another difficulty was that the reliability of the recollection of both the complainant and her sister DB may have been impaired over time particularly as they were children when the events they described occurred.

[71]  His Honour then advised the jury that it was dangerous for them to convict on the unsupported evidence of the complainant, and if they felt that evidence was not supported in any way, a conviction would be dangerous.  They were advised to scrutinise her evidence with considerable care, satisfy themselves that it was reliable and accurate, and if so satisfied advised they might return a verdict of guilty, if bearing in mind the warnings they had been given including that it would be dangerous to convict on her unsupported evidence.

[72]  No complaint is made about those directions and none could be.  The complaint is that the jury was then directed or advised that it might be helpful to ask themselves if there was any evidence in the case that supported the complainant’s evidence, and that the only evidence that offered that support came from CB.  His evidence was then read to the jury, who were directed that if they accepted it, they might think it provided important support for the complainant, but that that was a matter for them to decide. 

[73]  The evidence of CB did provide important support for the complainant’s evidence, as earlier explained in these reasons.  The learned judge was quite correct in so directing the jury, and that is conceded in argument by the appellant.  The complaint made is that that direction was given immediately after the “Longman” direction was given.

[74]  That was the appropriate point of the summing up at which to direct the jury’s attention to evidence capable, if accepted, of supporting the complainant’s evidence of long term sexual abuse.  That supporting evidence existed, and the jury were entitled to the assistance the judge gave in reminding them of it at that point.  Doing so did not detract at all from the directions concerning the difficulty the appellant faced in challenging the circumstantial detail surrounding the incidents, or the problems the unreliability of other people’s memories might cause the appellant.  In a trial in which the appellant in fact challenged none of the complainant’s description of surrounding circumstances, and gave no evidence on oath of a general denial and of any difficulty in recollecting the events on the particular occasions charged or his whereabouts, the appellant’s complaints ring somewhat hollow.

[75]  I am satisfied that all of the grounds of appeal against conviction lack merit and should be dismissed.  Turning to the application for leave to appeal against the sentence, this can be dealt with quickly.  Counsel for the respondent DPP conceded on the appeal that the 10 year sentence did appear a very “high” one, and did not disagree with the submissions of senior counsel for the appellant that three cases to which senior counsel referred the court, namely Hoban v R [2000] QCA 384, F v R [1996] QCA 490, and Oldham v R [1993] QCA 430, supported a sentence of eight years rather than 10.  

[76]  In Hoban judgment was delivered on 22 September 2000, and therefore quite recently.  That appellant had been convicted of eight sexual offences committed upon his stepdaughter.  These were four counts of indecent dealing, one of attempted sodomy, one of rape, and two of indecent assault.  The period spanned by the eight convictions was eight and a half years, covering a period in the complainant’s life when aged between 10 and 18.  The sentencing judge had described the case as one of persistent and revolting sexual abuse.  That applicant had proceeded to trial and thus demonstrated minimal remorse.

[77]  This court held that a sentence imposed there of eight and a half years was itself on the high side, but was in the range, echoing what had been said in the matter of F.  In F eight and a half years was upheld on a count of rape, accompanied by six counts of indecent dealing with a child under 16 years, and four counts of wilful exposure to indecent material.  However, in F the persistent offending against a child was over a period of some months rather than some years.

[78]  In Oldham that appellant was convicted of two offences of unlawful and indecent dealing, and two of rape.  The evidence included allegations of numerous other sexual dealings with the complainant over a period of about four years, beginning when she was eight years of age.  A sentence of eight years imprisonment was upheld by this court.  That appellant had been a close friend of that child’s family, known as “uncle Kevin”.

[79]  The offending behaviour covered by the convictions in this case began when the complainant was of a similar age to that in Oldham, but dealing still with the period covered by the convictions, lasted for six rather than four years.  In Hoban the offending behaviour covered an eight year period, but started when that complainant was 10, whereas T was eight when the incident on Guy Fawkes’ night occurred.  Even so, those differences make the sentence of 10 years imposed appear excessive and manifestly so, compared to the eight and a half years in Hoban and the eight years in Oldham.  Accordingly, I would grant leave to appeal against the sentence and substitute a sentence of eight and a half years imprisonment for the 10 year sentence imposed.  This applicant’s conduct of which he was convicted is at least as bad as that in Hoban and Oldham.  It was common ground at the hearing, but worth repeating, that the applicant will be eligible for parole after having served one half of that sentence.