R v DBF (No 2)[2013] QCA 245

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant's first ground of appeal against conviction is that the convictions are unsafe and unsatisfactory, that is, in terms of s 668E(1) Criminal Code 1899 (Qld) they are "unreasonable or cannot be supported having regard to the evidence".  The resolution of that question involves a consideration of whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on each charge: M v Queen;^[1] SKA v The Queen.^[2]

2. The complainant gave evidence that the appellant committed all the offences of which he was convicted. Her evidence received compelling general support from the evidence of her mother that the complainant showed her a letter from the appellant. The mother recognised the appellant's handwriting. She saw only the first paragraph before the appellant snatched the letter which stated: "I don't care, you are my daughter. I have dreams, sexual dreams to make love to you." He ripped up the letter and threw it in the bin. When the mother tried to retrieve it, "he ripped it up even more."^[3]  The guilty verdicts are not, as alleged in the notice of appeal, "unsafe and unsatisfactory."  The evidence of the complainant's sister, A, also supported the complainant's evidence.  A recounted an episode of sexual activity between the appellant, the complainant and A.  She also said that, unknown to the complainant and the appellant, she witnessed the episode of oral sex constituting count 3.  There was no reason for the jury to conclude that the complainant, A, and their mother were colluding.

3. Douglas J's review of the evidence demonstrates that it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. This ground of appeal is not made out.

4. I also agree with Douglas J's reasons for rejecting the second ground of appeal. A's evidence of the appellant's conduct with the complainant and A was relevant and admissible.

5. I agree with Douglas J that the appeal against conviction should be dismissed.

6. FRASER JA:  I agree with the reasons of Douglas J and with the order his Honour proposes.  As his Honour’s analysis demonstrates, it was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant was guilty of the offences of which he was convicted.

7. DOUGLAS J:  The appellant was convicted of maintaining a sexual relationship with his second eldest daughter over a period of close to five years between early 2000 and late 2004.  He was also convicted of four counts of indecent dealing, one of which related to a period when his daughter was less than 12 years old, and two counts of rape.  This appeal was heard at the same time as his appeal against his conviction at a separate trial for similar offences against his eldest daughter.^[4]  There were three daughters in the family.

8. The first ground of appeal is that the learned trial judge erred in allowing the admission of evidence of an offence that occurred in respect of the eldest sister who was not a complainant in respect of the charges the appellant faced on this indictment. The second ground is that the verdicts were unsafe and unsatisfactory. It is convenient to consider the evidence and the summing up in respect of the argument that the verdict was unsafe and unsatisfactory in the first place and then the ground relating to the admissibility of the evidence relating to the complainant’s sister.

The evidence

9. The complainant was aged between seven and 15 during the period of the charge that her father maintained a sexual relationship with her. She was 22 when she gave evidence. She gave evidence of regular sexual interaction with the appellant on a weekly basis particularly when she was 14 years of age and at home from school for lengthy periods suffering from an illness.

10. In respect of the first count of indecent dealing when she was under 12 years of age, she gave evidence of an occasion when she was in her sister’s bedroom with her father and her sister. She had limited recollection of what occurred but could remember that the three of them were naked, that her father kissed her sister on the lips as he rubbed her leg and asked the two girls to kiss each other. She also said that he was on top of her sister at some stage.

11. The sister gave evidence of an episode that had some similarities in the sense that all three of them were in a bedroom, either hers or the complainant’s, but she said that the girls only had their tops off. Her recollection was that the complainant was performing oral sex on the appellant while he was playing with her, the eldest sister’s, breasts. She also said that he tried to get the girls to kiss each other and him. The sister’s evidence was initially objected to by counsel for the appellant, but the objection was later withdrawn as I shall discuss shortly.

12. The eldest sister also said that she observed the complainant engaging in oral sex with the appellant in her bedroom when the complainant was at a particular secondary school. This evidence was relevant to count 3 on the indictment, one of the charges of rape.

13. The complainant also recalled an incident at a house where the family lived where the appellant kissed her using his tongue and rubbed her vagina with his hand. She recalled performing oral sex upon him regularly when she was 14 years of age and at home from school. She would be required to massage him and he rubbed her vaginal area with his fingers before kissing her and requiring her to perform oral sex on him. She further recalled an occasion when he licked her nipple, another where he performed oral sex upon her and an occasion where he attempted to penetrate her with his penis which went into the “flaps” at the entrance to her vagina. On another occasion he wanted her to sit on top of his penis while they were both naked and he asked her to move up and down on his penis, rubbing it with her vagina but when it did not penetrate. She also described another occasion when she had consumed alcohol and cannabis with him and he then walked into her room and masturbated while trying to kiss her and also masturbated in her presence while watching a pornographic film.

14. The complainant also gave evidence that the appellant had given her three letters in which he spoke of his sexual fantasies involving her. She gave the last one to her mother following a fight when she moved out, evidence which was confirmed by her mother. It was suggested in cross-examination that the father had written the letter on behalf of another man who was illiterate but both witnesses denied that. The letters were no longer in existence at the time of the trial.

15. The complainant accepted that she had denied anything had happened to her when her sister’s first complaint in 2001 was made and agreed that she had not complained to anybody else until she laid a complaint with police in 2011.

16. There were no admissions of offending conduct by the appellant who did not give or call evidence.

The summing-up

17. There was no ground of appeal directed to the content of the summing up and no submission made in respect of it. It dealt properly with the general considerations relevant to any trial by jury and the particular issues this jury had to consider. The jury were directed that the prosecution case was heavily dependent upon their acceptance of the complainant as being truthful and reliable and that it was dangerous to convict the appellant based upon her evidence alone.

18. Her Honour identified the elements of each offence and the evidence relied on by the prosecution in respect of each count. Count 1 related to the appellant rubbing the complainant’s leg while he was interacting with her sister when the complainant was less than 12 years old. Count 2 was the charge of maintaining an unlawful sexual relationship and relied upon much of the evidence led otherwise. The maintaining came to an end when the daughter began to go out with boys. Count 3 related to the incident of oral rape observed by the eldest sister. Count 4 was the licking of the nipple referred to earlier. Count 5 was the penile rape where there was evidence the appellant’s penis had penetrated the “flaps” at the entrance to her vagina. Count 6 was the incident of simulated intercourse when he had her sit on the top of his penis and count 7 was the occasion when he masturbated in front of the complainant.

19. The normal direction was given in respect of the appellant not giving evidence and how the jury were to deal with evidence of violence by the appellant that was led in respect of the issue of consent, particularly in respect of the charge of rape. The jury were also directed that any reasonable doubt they had with respect to one offence should be taken into account when considering the complainant’s credibility with respect to any other offence. They were given a warning about delay. They were not given a direction concerning whether a mistaken belief on the part of the appellant about the complainant consenting to either offence of rape was relevant but, as was submitted by Mr McCarthy for the respondent, one was unnecessary given the age of the child and the circumstances in which the sexual acts were said to have occurred.

Uncharged act on a third party

20. Counsel for the appellant initially objected to the admission of the evidence of the complainant’s sister of her participation in a sexual act with the appellant and the complainant on the basis that it was highly prejudicial to place evidence before the jury of the appellant engaging in sexual activity with another daughter.

21. The prosecution relied on the evidence, however, to prove two particularised acts that formed the basis of counts 1 and 3 on the indictment where the evidence of the complainant’s eldest sister was inextricably linked with the narrative of that offending taking place.^[5]  The acts were the indecent dealing with the complainant in this matter observed by the eldest sister in the bedroom when the three of them were together and the father was rubbing the complainant’s leg.  The act in respect of count 3 was the observation by the eldest sister of the complainant performing oral sex on the appellant when she walked past the complainant’s bedroom on another occasion.

22. As I pointed out earlier, each witness described the events of the so-called “threesome” differently, which led to the possibility that they could have been talking about the same or two different events. Her Honour, the learned trial judge, required the Crown to elect to use the evidence only on the basis that it was the same event and, on that approach, counsel for the appellant did not maintain his objection.^[6]  He was correct in adopting that stance as the evidence was clearly relevant to the first charge on the indictment.

23. Her Honour instructed the jury about the differences in detail between the girls’ evidence about the event and told them that it was a matter for them whether they should treat the differing evidence as recollections of the same incident remembered differently or as something that affected the complainant’s credibility. They had earlier been instructed about the primacy of their role in determining the facts of the case.

24. The other evidence from the complainant’s sister of observing the complainant performing oral sex on the appellant was clearly relevant to count 3 and admissible as direct evidence of that offence. In those circumstances, the ground of appeal in respect of the admissibility of this evidence has no substance.

The appellant’s submissions

25. The appellant represented himself on the appeal and relied upon written submissions he had filed which were not particularly relevant to the grounds of appeal. The submissions included statements reflecting adversely against the complainant, in effect asserting that she had made false complaints against others previously. There had been some cross-examination about one of the alleged episodes at the trial but no mention was made at the trial of a second episode alleged to have occurred in August 2005 referred to in the appellant’s written submissions. There were also irrelevant and offensive allegations made by the appellant against his former wife in the written submissions which were not the subject of evidence at the trial, no doubt because they were irrelevant and regarded as such by the experienced counsel who then appeared for the appellant.

26. The appellant also disputed the complainant’s recollection of her age when she began to have boyfriends, but again that has nothing to do with any relevant ground of appeal. Nor were the allegations he refers to in his written argument the subject of evidence at the trial.

27. He made other allegations against the complainant in his written submissions that were not canvassed at the trial, again, no doubt, because of their lack of relevance. He again asserted that the letters referred to in evidence said to have been written by him to the complainant were written on behalf of another man. Those allegations were put to the relevant Crown witnesses who disagreed with them.

Conclusion

28. In the circumstances, the jury were entitled to act upon the complainant’s evidence supported by the evidence of her sister and mother. That evidence was sufficient to justify the verdicts of guilty pronounced by the jury. The sister’s evidence was admissible. On my analysis of the evidence and the summing-up I am satisfied that the verdict was neither unsafe nor unsatisfactory. There is no basis on which the Court should interfere with the verdicts.

29. Accordingly, I would dismiss the appeal.