R v BDM[2021] QCA 108

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 22 November 2019, a jury found the appellant guilty of two counts of maintaining a sexual relationship with a child and nine counts of indecent treatment of a child under 16 who was a lineal descendant.
2. [2]
   On 11 December 2019, the appellant was sentenced to four and a half years’ imprisonment on each count of maintaining a sexual relationship and lesser concurrent terms of imprisonment for the remaining counts.
3. [3]
   The appellant appeals his convictions on the ground that they are unreasonable and cannot be supported, having regard to the evidence.

Background

4. [4]
   The appellant was born on 26 June 1958.  He was aged between 31 and 36 at the time of the offending and 61 at sentence.
5. [5]
   The complainant in all counts was the appellant’s daughter.  The appellant had two other younger children.
6. [6]
   The offending occurred over two distinct periods.  During each period, the complainant said her mother was working shifts, with all offending taking place whilst the mother was away from home.
7. [7]
   The first period, constituting the first count of maintaining (count 1) and counts 2 to 8 inclusive on the indictment, occurred between 1 January 1990 and 31 March 1992, when the complainant was aged 11 to 13 years.
8. [8]
   The second period, constituting the second count of maintaining (count 10) and the two remaining counts of indecent treatment of a child under 16 who is a lineal descendant (counts 11 and 13) occurred between 1 January 1993 and 8 September 1994, when the complainant was aged 14 and 15 years.
9. [9]
   The offending conduct was first reported to police in 2015.  However, evidence was led of complaints by the complainant to others between 1994 and 2013.

Evidence

Complainant

10. [10]
    The complainant gave evidence that her mother worked as a nurse.  The appellant worked as a salesman.  He worked only during the day and cared for her and her sisters when her mother was working a late shift or worked overnight.
11. [11]
    The complainant said whilst she was in grade seven, she had a regular relationship with the appellant during the day but at night time, when her mother was at work, he would undress her and feel her breasts and vagina.
12. [12]
    The first occasion the appellant touched her sexually was during a fishing trip to an island on the Maroochy River.  The complainant’s family was staying in her grandfather’s hotel in Buderim.  Shortly after they arrived at the fishing spot, the appellant started kissing the complainant around her neck and ears.  His hands were fondling her groin area underneath her clothes.  The complainant did not say anything to her mother when she returned to her grandfather’s hotel.
13. [13]
    The next occasion the appellant touched her in this way was when they were back at their house in Thornlands.  The appellant let her stay up if she sat on his lap.  He was watching soft porn on television in the living room.  The complainant’s sisters were asleep in their bedroom.  Her mother was at work.  It was around eight o’clock at night.  After watching soft porn for some time, the appellant carried her back to her bed.  At that stage, the complainant slept in her own room.  They travelled past her sisters’ bedroom and the main bedroom.  One of her sister’s woke up and asked why he was carrying the complainant to bed.  The appellant did not reply.
14. [14]
    The complainant said when they arrived at her bedroom, the appellant undressed her and fondled her.  It was “more kissing and groping of my vagina”.^[1]  She could not recall any conversation.  The complainant did not think she ever said anything; “I was always fairly polite and worried about hurting his feelings.  I just remember never wanting to hurt his feelings.”^[2]
15. [15]
    The complainant said on another occasion when they were living in that house at Thornlands, the appellant asked her to wash his genitals.  He said it was going to be educational.  The complainant washed his penis and testicles with soap for a couple of minutes.  That was the first time the appellant asked her to wash his genitals.  He asked her on subsequent occasions.  On some of those occasions, the complainant was in the bath and he hopped into the bath.  The complainant said when she was 12 years old the appellant said he needed to teach her how to use the shower more efficiently.  He told her she needed to use shampoo as soap and rubbed it all over her body, including her vagina.  That happened on only one occasion.
16. [16]
    The complainant at one point asked to share a room with her sister.  She thought it might stop the appellant.  However, her sister was a very deep sleeper.  The sexual abuse continued in that room.  The complainant could not indicate how many times as it “just happened so often that I couldn’t – Mum – like every time Mum was night duty, something happened.”^[3]  It was happening at least a couple of times a week.  The conduct involved a lot of kissing and fondling.  The appellant would also undress her.  On one occasion she pretended to be asleep.  The appellant said in a laughing manner “I know that you’re awake”^[4] before jumping into bed with her.  She asked if he was dressed.  He replied yes, but the complainant knew he was lying because she could feel his naked penis against her skin.  It felt hard.
17. [17]
    The complainant gave evidence of an occasion when she was sharing a bedroom with her sister, when she awoke to find her knickers off and the appellant was playing with her vagina, clitoris and labia.  The complainant could feel his wet finger and heard him putting his finger in his mouth.  The complainant just froze.  Her sister was in the bedroom at this time.
18. [18]
    On another occasion, the appellant carried her into his bedroom.  Her father turned all the lights on and asked her to get undressed.  He had her sit with her legs spread and used his finger to point to all of her vagina and clitoris.  He stuck his finger into the labia.  He then made her listen to the neighbours having sex next door. The complainant told her mother what the appellant did the next day.  She only told her mother about that one incident.  She thought “that it would be enough for her to know that Dad had stuck his fingers inside me”.^[5]  Her mother’s response was to say “Leave it with me.  I’ll talk to Dad about it.”^[6]  Later, her mother said “I’ve spoken to your father about it.  Don’t worry, it’s perfectly normal.”^[7]
19. [19]
    The complainant said, whilst they were living in that house in Thornlands, they would holiday on Stradbroke Island at Christmas time, with other families from their church community.  Her family stayed in a large two bedroom plus annex tent.  The complainant’s mother ferried back to work for her shifts.  Whilst her mother was away performing night duty the appellant would carry her into the bed he shared with her mother and kiss and fondle the complainant.  This happened on each of the two or three years they went to Stradbroke Island for Christmas.
20. [20]
    The complainant said that at the beginning of her grade nine year, the family moved to another residence.  They stayed in that residence for one year.  During that time, the complainant could not recall anything happening with the appellant.  Throughout this period, her mother was not working nights.  After the complainant’s family moved to a house in Buderim, the sexual abuse started again.  Her mother started undertaking shift work again.
21. [21]
    Whilst living in this house in Buderim, the appellant started “dry humping”^[8] the complainant, as if he was having sex.  She could feel his erect penis rubbing against her groin.  He continued until he ejaculated.  She could hear him sigh in relief and his penis was no longer hard.  These incidents lasted for approximately five minutes.  They occurred whilst he was wearing his clothes.  The complainant asked him to get off.  He said, “Hang on.  I’m almost done”.^[9]  The “dry humping” happened almost immediately after her mother had travelled to Sydney for the funeral of a cousin.  The appellant was very sad, missing her mum.  He was “very good at making me feel… guilty”.^[10]
22. [22]
    Whilst they were living at this residence in Buderim, the appellant started disciplining her by randomly groping her breast and groin.  It was “awful”.^[11]  He would give her a smile.  He would do this if people were not looking, even if her mother was in the room.  The complainant was more worried about getting caught than he was.
23. [23]
    The groping for disciplinary reasons continued when the family moved to another address in Buderim.  Whilst living in that house, there was an occasion where the complainant was in the back yard when the appellant asked for a cuddle.  The next thing she knew, he was kissing her with his tongue down her throat.  It was “completely gross”.^[12]  She pushed him away.  No-one else was in the backyard.
24. [24]
    That was not the only time she stood up to the appellant whilst living at this address at Buderim.  On another occasion, she had stood up to him because she was sick of him groping her all the time.  In response, the appellant stuck his hands around her throat and pushed her against a wall.
25. [25]
    The family moved to a residence in Coolum, after the complainant turned 18 years of age.  The groping continued at this residence.  The “dry humping” had stopped whilst they were living at the second residence in Buderim.  The complainant said it stopped because she told her mother.
26. [26]
    The complainant said she confided in a couple of friends and then to a woman from her church.  The complainant first told a school friend, HD, when the complainant was in grade 12.  She just told HD that her father had been sexually abusing her.  The complainant told another friend, MP, not long after telling HD.  The conversation occurred at a swimming pool at Buderim.  The complainant told MP her father had been sexually abusing her.  The complainant said she did not want to go into details.
27. [27]
    The complainant told the woman from church, VM, because the woman’s daughter had recently revealed she had been sexually abused by a neighbour.  The complainant thought she would understand.  She told VM almost everything because she felt safe with her.  VM said she had to tell her mother.  They decided VM would talk to the complainant’s mother first and then they would pull the complainant out of school.  At first, her mother was really lovely, crying and cuddling the complainant and telling her that she loved her.  When they returned back to their house, the appellant immediately met them.  He downplayed everything, telling the complainant she was a prude and that he always had one foot on the floor.  He also said the complainant had imagined most of it.  The complainant said she felt really intimidated and ended up taking everything back.
28. [28]
    The complainant also told her now husband, SC, shortly after they started seeing each other.  They met when the complainant was 19 and still living with her parents.  The complainant did not go into detail; just that the appellant had sexually abused her.  The only time SC heard details of the abuse was when he heard the statement she made to police in 2015.
29. [29]
    In cross-examination, the complainant accepted she had significant problems with her memory and that she goes into a state, described as a dissociative state, where she may not be able to recall a day or days.  That state was a recent thing.  She did not suffer it when she was young.  The occasions when she would lose days of memories mainly occurred when she had been consuming a lot of alcohol, although there were times when she had not been drinking alcohol and she had experienced a dissociative state.  The complainant denied experiencing hallucinations.
30. [30]
    The complainant had seen a psychologist, Linda Holland, and a psychiatrist, Dr Drennan.  One of the primary reasons for going to therapy was to address issues in her marriage, including her excessive drinking and occasions when she could not remember.  Her husband blamed her experiences for the issues in their marriage.
31. [31]
    The complainant denied ever undergoing hypnotherapy at any stage.  She did experience a technique known as visualisation, where she put her troubles in a backpack, walked up a mountain and left the backpack on the mountain.  The complainant had also recently engaged in mindfulness, a meditative technique that put her in a deep state of relaxation.
32. [32]
    The complainant accepted that, when she was dating SC, she had complained to her sister about having suffered sexual abuse at the hands of CW.  She had also told her sister that both her mother and father knew about the allegations of abuse with CW.  Her sister had asked if anyone had done this to the complainant before, to which the complainant replied, “No, just [CW]”.^[13]  The complainant was not going to tell her sister about her father’s abuse.
33. [33]
    The complainant accepted that, after she had made the complaint to VM, her mother was angry at the appellant.  The complainant did not accept that the complaint she made to her mother was about a kiss in the garden and that the appellant had let the complainant touch his penis.  The complainant said she tried to go into more detail but “as a 16 year old, when you’ve got the perpetrator sitting right across from you, it is extremely intimidating and scary to go into too much detail”.^[14]  The appellant “had an answer for everything, and he calmed the situation right down, which then, in turn, made me back down”.^[15]  The complainant accepted she retracted any allegation of sexual abuse at that time.
34. [34]
    The complainant agreed that the appellant had spoken of an incident when she was a little girl, aged four or five, when she had asked him about his penis.  The complainant said that had nothing to do with anything she was alleging, which happened from the age of 11 onwards.  The complainant accepted the appellant may have given an explanation for the kissing incident, namely, that he had gone to lick her on the cheek and she had turned her head and he might have licked a part of her mouth.  That explanation was absolutely not true.
35. [35]
    The complainant said she should not ever have had to sit across the table from the appellant whilst she was talking to her mother.  Had he not been sitting there, she would have “told Mum everything”.^[16]  The complainant denied her mother stepped in to protect her.  Her mother was “actually quite awful to me after she found out about Dad.  She told me I was the reason why she couldn’t trust Dad anymore, and she started to treat me like the other woman.”^[17]
36. [36]
    The complainant first saw Linda Holland on 5 December 2013, and continued to see her until November 2014.  The complainant saw Ms Holland on at least 10 occasions and undertook therapy involving deep relaxation techniques and mindfulness.  She denied it included hypnotherapy.  The complainant denied ever being in a state where she was effectively floating.  The complainant was always aware of her surroundings.  The complainant did not lose track of time whilst in that state of deep relaxation.  Ms Holland was addressing her ability to cope with past trauma and to alter her psychological reaction to it.
37. [37]
    The complainant accepted she was admitted to a private clinic in late November 2014 and remained there until early December 2014.  Dr Drennan became her psychiatrist in December 2014.  The complainant was introduced to the book “The Courage to Heal” whilst an inpatient at that private clinic.  She found the book difficult to read but did find it beneficial.  The complainant accepted that, prior to starting to write in a diary as part of her therapy with Dr Drennan, she had only spoken in general terms to counsellors and other people about the abuse.
38. [38]
    The complainant made her first formal statement to police sometime after she had finished the book, and after a meeting between Dr Drennan, herself and a police officer.  That joint meeting concerned advice about whether it was the right path to take to proceed with the complaint and whether the complainant was strong enough to do it.  The complainant wrote some notes for herself prior to speaking to police.  The complainant may have sent the notes to a detective friend, who visited her in the private clinic.  The statement took a number of days to complete.  The complainant had been admitted as an inpatient to the private clinic and was receiving medication from Dr Drennan whilst preparing that statement.
39. [39]
    Once she decided to proceed with pressing charges, the detective friend referred her to the investigating officer.  After she completed the statement she continued to receive treatment from Dr Drennan, which included being admitted back into the private clinic on multiple occasions, so that she could go through the contents of the statement.
40. [40]
    Dr Drennan, assisted with her reaction to its contents.  This was called exposure therapy.  It also involved the utilisation of medication.  The process was to desensitise her so that she was able to talk about it without breaking down.  The complainant accepted that the process was undertaken to alter her reaction to the information contained within the statement.
41. [41]
    The complainant accepted that on 28 September 2016 the investigating officer emailed:

“It is strongly advised that [Dr Drennan] doesn’t coach you, just supports you through the surrounding issues.”^[18]

42. [42]
    The complainant did not accept that what she was doing with Dr Drennan was practicing her evidence.  The ability to go over and over the things that happened to her as a child desensitised her, which was the purpose of the exposure therapy.  Dr Drennan knew she was not to coach her.  The complainant last went through her statement with Dr Drennan in June 2018.
43. [43]
    The complainant accepted when she first gave her statement to police she was receiving Valium “just to take the edge off a little bit”.^[19]  She was also receiving medication when she was going to give evidence at the preliminary hearing in November 2016 and for the current proceeding.  The complainant had also incorporated mindfulness strategies prior to giving evidence.  That was a deep relaxation technique.
44. [44]
    Dr Drennan had told the complainant of criticisms levelled at a previous version of the book “The Courage to Heal” which talked about “hypnosis or something” but there was nothing in the updated version read by the complainant.  Dr Drennan had advised her that hypnotherapy can affect the validity of evidence.  The complainant denied having hypnotherapy.  Part of her therapy had been a process where “you try and relive the experience and sit with the experience, but then sit with it long enough, but then realise that you’re not there and you’re safe… so…that the memory doesn’t hurt you anymore”.^[20]
45. [45]
    The complainant accepted that the first incident of sexual contact with the appellant took place in a public place.  That incident was “very brazen”.^[21]  The appellant was brazen on each of the occasions he sexually assaulted her, including when she was sharing a room with her sister.  The complainant accepted the Stradbroke Island incidents occurred in a tent, with a number of families in tents nearby.  The appellant was not silly.  He would do it in the middle of the night.
46. [46]
    The complainant accepted she may have said to one of her sisters “Don’t you remember seeing him carry me to bed” and accepted threatening to charge the appellant if he did not come clean to the family.  Her father had promised he would tell the family the truth.  When the father did not come through with it, the complainant took him to court.  The complainant denied her mother and sisters had been supportive.  Her mother said she would always take her father’s side.  Taking her father to court had nothing to do with her sisters’ taking her side.
47. [47]
    The complainant accepted she sought assistance in late 2013 and early 2014 through Holland and later the private clinic to address issues with alcohol dependence, anxiety and depression.  During those sessions, the complainant did not go into detail with respect to the acts with the appellant.  The complainant had also not gone into detail in her sessions with Dr Drennan, prior to providing any statement to police.

Preliminary Complaints

48. [48]
    HD attended high school with the complainant.  They became close personal friends.  One morning, before school in 1994, when they were in grade 11, the complainant was crying and upset.  The complainant said she had been sexually abused.  HD asked the complainant to tell an adult.  The complainant told her she had told a family friend within her church.  A couple of days later the complainant disclosed to HD that she was being sexually abused by the appellant.
49. [49]
    The latter conversation arose after the complainant had been called up to the office and had not come back to class that day.  The next morning, the complainant told HD that the family friend had spoken to the complainant’s mother.  The complainant’s mother had pulled her out of school and was very angry.  The complainant said the abuse had been going on for a long time.  When asked about her two sisters, the complainant replied, “No, I wouldn’t let it happen to them”.^[22]
50. [50]
    In cross-examination, HD accepted the first time she had been asked to write down the contents of her conversations with the complainant was in October 2015, after she had been told by a police officer that a complaint had been made against the complainant’s father.  HD did not accept that the complainant was saying her mother was angry at the appellant.  The complainant said her mother was very angry with her.
51. [51]
    MP first met the complainant in 1994, through church.  MP visited the complainant at her home in Buderim weekly, sometimes twice a week.  On one such occasion, the complainant disclosed that a close family friend would do things to her while her mother was out.  MP had a further conversation with the complainant in 1995.  When asked whether it had stopped, the complainant replied “No,f it’s still happening”.^[23]  On another occasion, in the spring of 1995, after they had finished swimming at the Buderim pool, the complainant said, “The person who’s doing these things to me is my dad”.^[24]  The complainant did not want MP to tell anybody.  The complainant said her mother would be angry with her if she did.
52. [52]
    Prior to the last conversation, MP had asked the complainant if her father was abusing the complainant.  The complainant “just kind of looked at me and didn’t – she just looked at me, startled”. ^[25]  The complainant just brushed off the question.
53. [53]
    MP said the complainant had given her some details of the abuse.  The appellant would get into bed with the complainant and grope her breasts.  Sometimes, the complainant would feel “a hard on” as he pressed against her.  The complainant said he also “fingers” her.^[26]  These three items of information were said on different occasions.  MP had asked the complainant how things were going and in response the complainant had given that further information.
54. [54]
    MP accepted that, between the first conversation and the last conversation, she regularly visited the complainant’s home.  The complainant always wanted to leave the house saying “Can we please go out?”^[27]  There were many occasions when the complainant’s mother was not at home.  She worked at night.  MP described the complainant’s mother as cold towards the complainant.
55. [55]
    In cross-examination, MP did not accept the complainant’s mother was strict towards the complainant.  The mother spoke to the complainant “very coldly and very harshly”,^[28] in distinction to the sisters.  When MP had specifically asked if it was her father who was sexually abusing her, the complainant had responded “I can’t tell you”.^[29]  About a month after the complainant made that first disclosure to MP, the complainant informed her she was going to tell VM.  MP knew VM as part of the church.
56. [56]
    The complainant’s husband, SC, met the complainant at the end of 1997.  They commenced dating in February 1998.  They married in 2002.  Before they had commenced going out, the complainant told him she was abused by the appellant.  The complainant did not give any more detail.  The complainant did not say a lot until their daughter was born in 2006.  At one point, the complainant told SC she had been made to sit with the appellant late at night and watch pornographic movies on television.  She had been made to lie in his bed and listen to the neighbours having sex.  The appellant explained to her what was going on.  The appellant also made the complainant have baths, where she would wash his penis and testicles.  In 2013, when eating on an island in Maroochy River, the complainant had pointed out a part of a beach coming across a bridge, and said “That’s where my father abused me for the first time”.^[30]  That was the last detail given by the complainant.  SC was not able to put dates on any of these conversations.
57. [57]
    In cross-examination, SC accepted the complainant had undergone treatment and counselling for alcohol abuse.  He had seen the complainant so intoxicated she had lost consciousness.  There were times when the complainant had lost the ability to recall a number of hours.  The complainant had spoken about what she described as a dissociative state.  The complainant had not spoken to him about having hallucinations.  The complainant had counselling and received therapy from a number of professionals, including inpatient treatment at a private clinic.
58. [58]
    SC accepted the appellant gave the complainant away at their wedding and that he, the complainant and their children would attend family functions.  There were two occasions when the complainant’s parents looked after their children.  SC would not leave their children in their care overnight.
59. [59]
    There was a meeting with police, the complainant and Dr Drennan at the private clinic on 1 September 2015, during which they discussed the process of making a statement.  SC sat with the complainant, supporting her whilst she gave her statement.  That statement was given over many days.  He remembered being there only one day.  When the complainant gave her statement, she gave the complete story and all the little pieces that she had told him fitted into place.  SC had never been told the full story by the complainant.  He may have received an email from a police officer enclosing the complainant’s draft statement, but he had never read that statement.  He did not want to read her statement.  His statement had not been affected by the information he heard from the complainant in September 2015.
60. [60]
    VM met the complainant as part of a Christian congregation.  The families associated together, particularly their teenage daughters, who were friends.  In 1996, the complainant, who appeared distressed, said, “My dad lies on top of me.  Comes into my room on my bed and lies on top of me and touches me”.^[31]  That was the only conversation VM had with the complainant about that topic.  VM told the complainant she would to talk to her mother as this was very serious.  VM invited the mother to her home and repeated what the complainant had told VM.  This conversation did not take place on the same day.  It could have been days before she spoke to the complainant’s mother.  At that stage, the complainant’s family was living at Buderim.
61. [61]
    In cross-examination, VM said she told the complainant’s mother the appellant was touching the complainant.  It was plain from the words used that it was sexual abuse.  VM did not accept the complainant’s mother immediately started crying and said “How do I fix this?”^[32]  She told VM the appellant was educating the complainant.  That stood out in VM’ mind.  VM did not contact the appellant.  She denied he attended her house a day or so later and said it had all been settled.
62. [62]
    VM did not accept that the complainant’s mother told her the issue between the complainant and the appellant had been resolved.  The word “resolved” was not used in any part of the conversation.  VM did not accept that the impression she received from her conversation with the complainant’s mother was that the issue had ended within the family.  The complainant’s mother came out to the defence of the appellant.

Interview

63. [63]
    The appellant was interviewed by police on 29 October 2015.  Present also was his wife, SB.  The appellant said he understood the complainant was alleging he had hugged and kissed her and he had put his tongue near her mouth.  She had also said “other things”.^[33]  The appellant said:

“…you know, the kid jokes we had, we, the whole family was you, you pretend to kiss someone then you lick their face … I done that one time, she’d moved her head and I think, you know that’s what she’s taking that as being my intentionally trying to give her a kiss on her mouth, so, that’s ah, all I can put it to”.^[34]

64. [64]
    The appellant said he had taken the complainant into the garden to show her his tool shed.  To get a laugh out of her, he thought he would lick her face.  The complainant spoke to her mother.  She subsequently repeated the allegation in the appellant’s presence, implying that he had made her do it.  He denied trying to put his tongue in her mouth, saying:

“No didn’t try to.  Accidentally, I, must, cause I missed her fa-, cheek”.^[35]

65. [65]
    The appellant accepted the family would holiday on Stradbroke Island at Christmas and that when he visited his parents’ hotel on the Sunshine Coast he would take the complainant fishing on an island in the Maroochy River.  He denied ever doing anything sexually towards the complainant.  The appellant described the allegation of “dry humping” as “such nonsense”.^[36]
66. [66]
    The appellant accepted that VM had mentioned one day that she knew that things were going on at home.  This was at a time when VM’s daughter had made an allegation against an older man.  VM said she felt she needed to tell them and said she would leave it there.  The appellant assumed it was about the shed incident.
67. [67]
    The appellant accepted that the complainant had indicated she did not want her children being left unsupervised with the appellant.  The complainant did not say why.  The complainant had made allegations of a sexual nature against CW, her husband SC and his best friend, Mitch.  The allegations against CW were made when the complainant was aged 17 or 18.

Therapists

68. [68]
    Linda Holland, a psychologist, treated the complainant during 15 and 20 individual sessions between 5 December 2013 and 4 November 2014.  The complainant said she had been sexually abused by her father from the ages of 11 to 18.  The complainant became quite anxious and irritable.  Her breathing became quite shallow.  She exhibited a lot of symptoms of acute anxiety.  Holland used cognitive behaviour therapy in an effort to address the way a person thinks about themselves or events in their life.  Holland was also trained in relaxation techniques.  The patient is calmed, allowing them to deal with anxiety when relating some experience or traumatic event in their lives.
69. [69]
    Holland said relaxation therapy does not affect a patient’s memory of a particular event.  Regression therapy is different.  That process involves taking somebody to a very deep hypnotic state, where they are asked to go back to memories from their childhood and relate it as a child.  Holland was not experienced in regression therapy.  Her reading and research revealed it could be quite damaging as a patient may have a memory implanted which the patient then makes as a memory.
70. [70]
    Holland used other forms of therapy, such as grounding, where a patient opens their eyes and relates things that they see, hear and feel.  Holland had also given the complainant the opportunity to put her memory in a balloon and send it off.  By this process, you reduce the effect of the memory.  It did not mean the memory was going to disappear totally.  This technique, in Holland’s experience, did not alter memories.
71. [71]
    Holland said the complainant discussed issues other than sexual abuse, including alcohol, depression, children and her relationship with her husband.  Holland would use the same sort of relaxation techniques, depending on the level of anxiety exhibited by the complainant in discussing those issues.  During her application of relaxation technique to the complainant, Holland monitored the complainant.  The complainant’s level of consciousness did not ever appear to change.
72. [72]
    In cross-examination, Holland said she had never sought to alter the complainant’s memory.  Her goal was to assist the complainant in her psychological symptomatology in respect of resurfacing memories of child abuse against her background of alcohol dependence, depression and anxiety.  Holland was not engaged with an anticipation the complainant would be making a complaint to police.
73. [73]
    Holland’s role was not to confront the complainant about the abuse.  It was to treat her presenting symptoms of alcohol abuse, depression and anxiety.  Holland did not take the complainant into a deeper relaxed state, where it is more difficult to ascertain the inner workings of a person’s mind.  Relaxation therapy put a person into a relaxed, but not trancelike, state.  It was not a suggestable state.
74. [74]
    Holland accepted there were nine sessions of what was described in her notes as hypnotherapy between 11 December 2013 and 4 November 2014.  During a hypnotherapy session, she engaged mindfulness, a technique used in the context of deep relaxation.  That technique was about being in the present and trying not to constantly focus on the past.  It is a different circumstance to hypnotherapy.  On the last session with the complainant, Holland had undertaken hypnotherapy.  The complainant had described how angry she was about her mother not defending her or doing anything about the abuse.  Holland undertook relaxation to address the anger in different ways.
75. [75]
    Holland accepted that her notes made reference to “out of body experience”.  That was a description of what the pathological response was to trauma.  It was not something reported by the complainant at that stage.  If it had been, Holland would have described it more in her notes.  At one point, the complainant did describe out of body experiences.  Holland referred the complainant to her psychiatrist.  The complainant described disassociation, where she did not know where she was and could not remember doing things.  It was loss of memory over hours.
76. [76]
    Holland described the complainant as having very negative core beliefs based on how she was feeling since she was a young girl.  A core belief is a belief about one’s self.  Core beliefs were addressed using cognitive behaviour therapy, not hypnotherapy or relaxation therapy.  Negative core beliefs were addressed using problem solving and rational thinking.  You try to give the patient an alternative way of thinking about things that is not negative.  Her mindfulness technique would not have utilised self-hypnosis.  It was about being able to relax at home when not in therapy.
77. [77]
    Dr Drennan, a psychiatrist, first started seeing the complainant in 2014.  Dr Drennan made a diagnosis of post-traumatic stress disorder, alcohol dependence and major depression.  The prominent symptoms of post-traumatic stress disorder were very disturbing nightmares related to significant sexual abuse through much of the complainant’s childhood and adolescence by the appellant.  The complainant’s nightmares were very much related to her mother.  Her symptoms did not emerge until the end of her adolescence.  That was quite common in PTSD.  Some people do not develop symptoms for decades after an event.
78. [78]
    Having made those diagnoses, Dr Drennan discussed with the complainant the use of medication to suppress her nightmares, which was successful.  Dr Drennan next worked on mindfulness.  The strategies used around mindfulness were not likely to affect the complainant’s memory of sexual abuse.  Mindfulness is about being in the present.  It is not directly related to what has happened in the past.
79. [79]
    Dr Drennan referred the complainant to a number of books, including lending the complainant a book “The Courage to Heal”.  There had been criticisms of that book, concerning regression therapy and recovery of memories.  Dr Drennan had limited understanding of regression therapy and recovery of memories.  It was not part of her training at the time.  A problem with that therapy is that it may not be a real memory.  Dr Drennan did not engage in regression therapy with the complainant.
80. [80]
    None of Dr Drennan’s work with the complainant prior to or subsequent to seeing the complainant’s statement was directed towards helping the complainant remember.  The complainant was given the book “The Courage to Heal” to help her understand she was not alone.  Dr Drennan would talk to the complainant about parts the complainant found difficult to read, but her focus was being in the present moment, where the complainant was safe.
81. [81]
    Dr Drennan did not talk to the complainant about what had happened to her at all until the complainant had made her statement to police.  Once the complainant had completed the police statement, Dr Drennan conducted therapy to help the complainant.  That therapy started with some mindfulness therapy.  The complainant read the statement out aloud.  Dr Drennan listened but they did not discuss the content of the statement.  It was a process of desensitisation, not a process of exploration.
82. [82]
    That process happened more than once.  Dr Drennan accepted it may have triggered other memories but did not consider there was a risk of the complainant’s memories being altered by that process.  The statement had already been made.  The purpose of the therapy was that the complainant had to be able to tolerate acknowledging the statement.  At that time, the complainant was using alcohol in excess as a means of escaping the reality of her distress, related to the memories of her past.  The complainant was physically dependent on alcohol.
83. [83]
    In cross-examination, Dr Drennan accepted “The Courage to Heal”, in its form given to the complainant, was the subject of significant criticism by some psychiatric professionals.  Dr Drennan did not engage in anything that would be described as regression therapy with the complainant.  She did not undertake any form of hypnosis.  Mindfulness was entirely different to hypnosis.  Mindfulness was about relating to the present moment, not focusing too much on the future and not focusing on the past.  In regression therapy you are actively trying to uncover memories.  Further, the recovery of repressed memories was quite distinct from regression therapy.
84. [84]
    The complainant talked to Dr Drennan about her experience of reading the book.  What had happened to the complainant was not the focus of what Dr Drennan was doing as the complainant already had the memories.  Dr Drennan knew nothing of what had happened to the complainant in her childhood sexual abuse until the complainant produced the statement.  That statement was produced after completing the book “The Courage to Heal”.
85. [85]
    Dr Drennan accepted that her notes referred to the complainant needing frequent mindfulness whilst working through the book.  The complainant found going through the book very challenging and, at times, arduous.  The reference in Dr Drennan’s notes to the complainant repressing her feelings related to the complainant using alcohol to lose touch with her feelings.  Dr Drennan was not referring to repressed memories.
86. [86]
    Dr Drennan accepted that the complainant had been admitted to the private clinic on multiple occasions for extended durations of time so that she may undertake desensitisation in relation to the police statement.  Those sessions included mindfulness.  Dr Drennan did not accept that the way in which she went through the statement with the complainant, together with the mindfulness practices, may have distorted the complainant’s memory and did not accept that the practice of mindfulness, together with the use of texts such as “The Courage to Heal” may have had the consequence of creating a memory.
87. [87]
    Dr Drennan said the complainant had told her about being abused and she was not looking for memories.  Her purpose was not to distort or recreate memories, it was to alleviate the complainant’s symptomatology.  Dr Drennan did not have any reason to believe that the complainant was recovering memory as she went through the book.  Dr Drennan did not accept that changing a traumatic memory into a memory by its nature altered that memory.  The process of mindfulness was about being in the here and now.  It did not have any connection with false memories.
88. [88]
    Dr Drennan accepted that she diagnosed the complainant with dissociation.  Whilst dissociation can be a consequence of alcohol abuse, the complainant did dissociate at times independently of alcohol use.  An aspect of the complainant’s dissociative disorder was sleepwalking, but even in an otherwise wakeful state, the complainant can go into an altered state where she has no recollection of what happened in that time.  The complainant’s loss of memory was short term, as in a period of hours, not many days.  Dr Drennan was not aware of any studies, linking a connection between dissociation and false memories.
89. [89]
    In re-examination, Dr Drennan accepted there was a well described concept of malleability of memory.  Our memory of events can be altered by many things, including interactions with people.  She was aware of that concept when engaging in therapy with the complainant.  Whilst mindfulness engaged in over weeks and months may result in some details about something you were looking back on not being recalled, Dr Drennan did not consider the mindfulness technique had any significant impact on the complainant’s memories.  The complainant’s memory also would not have been affected by her prescribed medication.

Other

90. [90]
    Kay Duncan, the complainant’s general practitioner since 2005, first heard mention of allegations of child sexual abuse by the complainant when the complainant was seeing a psychologist in 2013.  Duncan wrote a letter of referral to a psychiatrist in August 2013 when the complainant reported a resurfacing of memories about childhood abuse.  At that time, the complainant had been seeing and talking to a psychologist.  Duncan accepted that in a letter of referral to a psychologist dated 5 November 2014, she recorded that the complainant “started counselling last year when memories of childhood abuse surfaced”.^[37]  Duncan could not remember whether they were the words used by the complainant or her words to give effect to what she had been told by the complainant.
91. [91]
    Natasha Neumann, the lead investigator into the complainant’s allegations, interviewed the appellant on 29 October 2015.  The appellant’s wife was allowed to be a support person.  At that time, she was not nominated to be a witness.  Another detective, David Somerville, had made her aware of the complainant’s allegations.  Neumann then made her own investigations.  She was not provided with any draft statements by Somerville.
92. [92]
    The complainant’s statement was created afresh, by Neumann asking the complainant questions and typing her responses onto a computer.  It may have taken a week to get through that process in its entirety.  The complainant’s husband was there for part of the first day.  At that stage, she had assessed that the complainant’s husband was not a witness in the proceedings.
93. [93]
    Neumann sent an email to the complainant on 28 September 2016, advising that her psychiatrist, Dr Drennan, could not coach her but just support her through surrounding issues.  Neumann did not explain to the complainant, beyond that email, the term “coaching”.  Neumann may have mentioned the same issue to Dr Drennan.
94. [94]
    RB, a sister of the complainant, did not see any untoward behaviour towards the complainant by the appellant.  The first time she became aware of an allegation of such behaviour was in 2015.  The complainant did not go into any details.  RB recalled having holidays at Stradbroke Island.  RB never saw any concerning interaction between the complainant and the appellant at Stradbroke Island.  One of the families who holidayed with them were the [Redacted].  That family included CW, an older man about the age of the appellant.
95. [95]
    At one point, after her mother and father moved to Sydney, RB lived with the complainant and SC.  That was at the end of RB’s grade 11 year.  During that period, the complainant spoke about being sexually assaulted by CW.  She made that complaint on more than one occasion.  RB asked the complainant whether anyone else had done something like that to her.  The complainant said “No.  Just CW.”^[38]  RB recalled asking the complainant that question on two occasions.  The complainant gave the same response on each occasion.
96. [96]
    MB, the complainant’s other sister, also never saw any untoward behaviour between the complainant and the appellant.  She first heard of such an allegation about six or seven years prior to giving evidence in November 2019.  MB recalled a conversation, where the complainant asked “Don’t you remember you saw dad in our room?  You woke up one time and you saw dad with me.”  MB denied ever seeing such a thing.
97. [97]
    There was also a conversation in which the complainant said that MB did not believe the complainant about what had happened in the room.  The complainant asked MB to tell her that she did believe her and, if MB did not do that, they would no longer be friends.  The complainant also threatened to have the appellant charged if she did not.
98. [98]
    MB said the complainant said that slightly differently on a few occasions:

“…  she said ‘You remember seeing it don’t you?’  And I said no.  And she said, ‘Why don’t you believe me?’  And I said I – I didn’t see anything.  I’ve never seen anything.  And I said try and remind me, because I don’t remember this incident.  So she told me about it again and said that Dad was in the room and he was doing something – I can’t even remember exactly what she said and I said I had never seen him do anything to her.  And she kept repeating herself, and I said that I had never seen it.  And she said, “You have to say that you – that you saw it.”  And then she said, “If you don’t believe me, we can’t be friends.  I can’t – you can’t be my sister any more (sic).”^[39]

99. [99]
    MB recalled that conversation occurring in 2013 or 2014.  MB said the complainant did give more detail about what she thought had been seen by MB.  It was “something about touching her or something along those lines, but I don’t remember her exact words”.^[40]  It was not a normal touching.  MB had gained the impression it was a sexual touching.
100. [100]
     SB, the complainant’s mother, married the appellant 41 years ago.  The complainant was their first born child. In 2015 or 2016, the complainant said something had happened involving the appellant.  SB could not remember the details.  She just remembered “sitting there, holding her for a long time”.^[41]  That conversation had been initiated by VM.  The complainant was not home at the time SB first confronted the appellant.  She then involved the complainant in a conversation with both of them.  There was no-one else at home other than the three of them.
101. [101]
     In cross-examination, SB recalled the complaint being made when the complainant was in grade 11 or 12.  SB had a face to face conversation with VM.  VM told SB the appellant had been sexually abusing the complainant.  There was no detail of that abuse.  The complainant was present.  The complainant did not go into detail.  She did confirm the allegation.  SB recalled the complainant saying the appellant had allowed her to touch him on the penis.  The complainant did not say that anything else had happened to her.
102. [102]
     SB said “I was furious”.^[42]  She recalled saying to VM “How do I fix this?”^[43]  SB said she wanted to figure out what had happened by talking to the appellant.  She confronted him when he came home from work.  The appellant said “I haven’t done anything”.^[44]  SB asked him about the specific allegations of touching the penis.  The appellant reminded her of a time when he was coming from the shower to the bedroom and the complainant, who was nine or 10, was curious and wanted to touch him and he had allowed that to happen.  SB denied there was ever an occasion when the complainant said the appellant had penetrated her vagina with his finger.
103. [103]
     SB said it took her a long time to calm down but, after discussing it with the appellant for a few hours, she spoke to the complainant.  The complainant never expanded upon the allegation.  SB said if she ever brought it up it was “shooed away again”.^[45]  SB denied blaming the complainant.  She denied treating her differently after hearing the allegation.  She denied the complainant made a further complaint to her about the appellant sexually abusing her.
104. [104]
     SB described her relationship with her daughter into adulthood as very good.  She had often looked after the complainant’s children.  To her knowledge, so had the appellant.  Their relationship had become more strained in 2013.  There were times when she became aware that the complainant was having issues with alcohol.  Her last face to face contact with the complainant was at the end of 2013.
105. [105]
     On re-examination, SB said that she sat on the couch with the complainant for what seemed like a long time.  She was cuddling and comforting the complainant.  They were both upset.  She described the incident when the complainant was aged nine or 10 and touched the complainant’s father’s penis as completely innocent child curiosity.  SB also said the appellant had suffered a stroke in 2015, which affected his day to day functioning.  His memory was not good, particularly his short term memory.  Timelines also get mixed up.

Appellant

106. [106]
     The appellant gave evidence that he first became aware of a complaint of sexual abuse by the complainant in 1993 or 1994.  He returned home from work to find his wife crying in their bedroom with the complainant.  He was told the complainant was saying sexual things about him.  He replied that he had no idea what they were talking about.  He recalled being told there had been an incident in the back yard in the shed.  His wife said the complainant was saying he had kissed her and hugged her.  The appellant said no.  He asked if there was any more to this and the complainant said no.  Nothing was raised about his genitals at that stage.
107. [107]
     The conversation he had with his wife and the complainant occurred not long after an event at the shed.  The complainant was bored and the appellant thought to cheer her up he would lick her face as she walked out the door.  The complainant responded by flicking her head out of the way.  His intention was just to cheer her up.  That was the extent of that incident.
108. [108]
     The appellant said there was an event when the complainant touched his penis.  He was coming back to the bedroom after having a shower.  The complainant was in the bedroom.  As he walked past, the complainant brushed against his penis.  The complainant was aged nine going on 10.  He said “Don’t… worry.  It’s okay.  I’m – yeah, boys have penises. Girls have, you know, other bits”.^[46]  He mentioned to his wife what had happened when she arrived home.
109. [109]
     The appellant said shortly after he was confronted by his wife in 1993 or 1994, he was asked to go and talk to VM.  He saw VM at her own home.  He asked VM why he was there.  She replied “It’s about sexual abuse of your daughter”.^[47]  He told VM he had discussed it with the complainant.  VM replied “Well… you’re taking care of that… it’s okay”.^[48]
110. [110]
     The appellant described his relationship with the complainant as good as she moved into adulthood.  They had family picnics and her children came and stayed with them.  He gave her away as the father of the bride at her wedding.  His relationship with the complainant ceased in about 2015.  He had a stroke in 2015/2016.  It affected aspects of his day to day life.  He was also told he had lost portions of his memory.
111. [111]
     The appellant denied sexually assaulting the complainant on an island in the Maroochy River or whilst on Stradbroke Island or at any of their houses.  He denied directing her to watch soft pornography on television.  He denied ever directing her to wash his genitalia or touching her privates whilst teaching her about her body parts.  He did not ever jump into a bath when the complainant was naked.  He did not ever simulate sex on her or grab or grope her breasts or vagina.  He had never behaved in a sexual way towards the complainant on any occasion.
112. [112]
     In cross-examination, the appellant accepted that he had been confronted by his wife when he came home from work.  She was yelling at him, saying “What have you and [the complainant] been doing...  What are you doing?”  The appellant thinks his wife asked him if he had groped the complainant.  He replied “What on earth are you talking about?”^[49] And said “I have never done that”.^[50]  When his wife calmed down, she spoke about kissing and asked “What’s this about the shed?”^[51]  The complainant was saying the same things, talking about groping and kissing and something about the shed.  He described the complainant as tearful and looking at her mother and him.  He replied “It’s not true”.^[52]  He straight away said that he did, at the shed, lick her on the face.

Expert

113. [113]
     Dr Roberts, a psychiatrist, reviewed the clinical notes associated with the therapy received by the complainant and the transcripts of evidence.  In his experience, memory is not accurate and can be influenced by a number of factors.  Accordingly, a person may strongly believe that certain things happened when there is no factual basis for that belief.
114. [114]
     Dr Roberts said there are a variety of therapies available for a patient.  Hypno-relaxation is not really a different therapy.  They are on a spectrum.  There is a gradient between relaxation, hypno-relaxation and more deep levels of hypnosis.  As a therapist, you cannot state whether the patient is simply relaxed or is in a hypnotic state because there is that gradient.  The first thing you do, trying to hypnotise someone, is to do progressive relaxation that then flows imperceptively into hypnosis.  Visualisation is part of the whole procedure.  It is used to assist the relaxation process.  Such a process is consistent with modification of memory because the memory is being altered by the suggestion given.  If you alter the recollection a person has when undergoing treatment, there is a concern you may generate new memories.  Further, hypnosis may give confidence to that suspicion and turn the suspicion into belief.  Such intervention may create new memories.  For that reason it is his practice not to use hypnosis on a person who may be obliged to give evidence in court in regard to matters of fact.
115. [115]
     Dr Roberts opined that therapy which involves an alteration of core beliefs risks an alteration of recollections.  The goal of such therapeutic intervention is to alter memory.  Similarly, a reduction in the traumatic response to a memory cannot be described as neutral.  You are modifying the memory.  A therapist has no control over the extent and impact of such an instruction on memory.  For this reason, guidelines have been introduced, recognising that hypnosis may create memories of events that never existed and cause a person to have beliefs truly held where they were previously suspicions.  This compromises a person’s ability to give evidence of matters of fact.
116. [116]
     Dr Roberts also opined that there were different opinions in regards to the capacity of mindfulness to impact upon memory.  Some practitioners believe that mindfulness may improve recollection.  Others believe it compromises the ability to recollect.  If your ability to recollect improves, the recollection itself may not be factually accurate.  There are parallels between mindfulness and hypnosis.  Self-hypnosis has the same problems as hypnosis undertaken by a therapist.
117. [117]
     Dr Roberts opined that the book “The Courage to Heal” has been the subject of significant criticism by psychiatrists.  The authors link the existence of certain problems with being sexually assaulted and assert that, if a person does not have a recollection of being sexually assaulted, that does not matter.  They also embark upon techniques to recover memories of sexual assault.  The book contains tasks recommended by the authors for both patients and therapists to undertake.  Dr Roberts could not give a definitive statement as to the specific effect such task could have on an individual person, stating:

“Certainly, if a person has not had a memory, and the memory then is created, it’s questionable.  If a person is exposed to the therapies and memories are elaborated – that is again a questionable circumstance.  If there’s memory modification, if there is the production of memories over time, as a result – and of interventions both related to the book and others, you cannot assume from the forensic viewpoint that those recollections are correct.”^[53]

118. [118]
     Dr Roberts was not prepared to opine that the recollections would be false.  You cannot say whether the memories are accurate or inaccurate.
119. [119]
     Dr Roberts opined that the process where the complainant was taken through a detailed statement in a therapeutic session on a number of occasions, could possibly have had an effect on her memory.  Whilst desensitisation is appropriate for common things, such as a fear of heights and snakes, memory therapy is inappropriate for a person who is required to give evidence of matters of fact.  Desensitisation modifies a memory in the sense that the individual is no longer apprehensive and rendered anxious.  Although it is designed to alter the emotional component of memory, you cannot say you are not modifying other parts of that memory.
120. [120]
     In cross-examination, Dr Roberts did not accept desensitisation merely alters an emotional response to a memory.  The emotional response to memory is part of the total memory.  If you alter one aspect, you are “by definition, altering the memory”.^[54]  To alter a horrific experience and make it pleasant is to alter the memory of their attitude towards that episode.  That gives rise to the possibility of altering other aspects of recollection.  He could not say that had occurred in any given case.
121. [121]
     Dr Roberts also could not state where in the spectrum relaxation will go into hypnosis.  Memories could be altered and memories could be created at an indefinable point.  It was not necessary to have a deep level of hypnosis for that to occur.  Relaxation is not going to create memories but if you ask a person to do visualisation and progressive muscular relaxation, you can get into a state where memories are modified and created.  A therapist is not in the best position to determine a patient’s level of consciousness.
122. [122]
     Dr Roberts opined that the complainant was exposed “to a text the central core of which is to recover memories even if the person has no memories because the author of the text is of the view that all neuroses are the result of sexual assault.  She has been exposed to hypnosis, hypno-relaxation which compromise her ability to give, from the psychiatric viewpoint, evidence in regard to matters of fact.”^[55]  Even if the person had a fully detailed memory of their sexual abuse before they started to use the book “A Courage to Heal”, there was still the potential to modify recollections held by that person.  The book is a “memory modifying text”.^[56]
123. [123]
     Dr Roberts also did not accept that changing core beliefs merely changed a level of blame attributed to oneself.  Memory comprises recollections of fact and an emotional concomitant.  If one is modified, you modify the other.  Memory cannot be broken into individual components.  Memories are whole.  Once a person has undergone hypnosis or other memory altering treatment, you cannot establish whether their memories are accurate without first having recorded a detail of their recollection prior to that treatment.

Appellant’s submissions

124. [124]
     The appellant submits that his convictions are unreasonable and cannot be supported, having regard to the evidence, due to the existence of the following features:

     1. (a)
        the risk that the complainant’s version of events was altered by psychotherapy treatments involving hypnosis;
     2. (b)
        the complainant’s earlier retraction of the allegations;
     3. (c)
        the complainant implicitly denying she had been assaulted by the appellant (her father) when asked by her sister;
     4. (d)
        the complainant attempting to have her sister give evidence of events involving the complainant and the appellant;
     5. (e)
        the delay;
     6. (f)
        the appellant’s sworn denial of the offending;
     7. (g)
        the inherent improbability of the offending.
125. [125]
     The appellant accepts the jury found the complainant to be a credible and reliable witness and must have rejected the appellant’s sworn denials.  However, the complainant had undergone hypnotherapy and suffered from psychiatric illnesses.  Whilst the therapist did not believe the complainant was taken into a deep state of relaxation, Dr Roberts opined it was difficult for a therapist to state where relaxation ends and hypnosis begins and, accordingly, there was a potential to alter the factual component of memory.
126. [126]
     The appellant submits that the complainant retracted her initial allegations when speaking to her mother; made allegations to VM when a member of VM’s own family had made accusations of sexual assault; made an earlier complaint of sexual assault by another and told her sister that no-one else had done something like that to her in the past; and sought to have another sister support her version of events, threatening to have the appellant charged if the sister did not say she believed the complainant.
127. [127]
     The appellant submits the delay, prevented the appellant from testing the precise circumstances and impacted on his opportunity to give evidence, having suffered a stroke in the interim.  There were also contextual features which made the offending improbable; and the jury had his sworn evidence categorically denying the allegations.  Neither sister saw anything untoward and the family had operated harmoniously until 2015, when the complainant first approached police, after the complainant had engaged in psychotherapy involving hypnotherapy.

Respondent’s submissions

128. [128]
     The respondent submits that the verdicts of the jury were not unreasonable and were supported by the evidence.  The complainant gave consistent evidence of sexual abuse during both periods of the maintaining counts.  Further, the complainant had made complaints to several people between 1994 and 2013.  The complainant’s interaction with her sister was explained in the complainant’s evidence.
129. [129]
     Further, all of the complainant’s preliminary complaints were made prior to the complainant receiving any therapy and here was evidence from each therapist that the therapy undertaken by the complainant did not affect, alter or change the complainant’s memory.  The account given by the complainant in evidence was consistent with the preliminary complaints.
130. [130]
     The respondent submits it was open to the jury to accept the complainant’s evidence as true and accurate beyond reasonable doubt, notwithstanding the sworn evidence of the appellant and the evidence of Dr Roberts.  The complainant provided an explanation for the retraction of her allegations, which was rational.  Her evidence was not implausible.  The delay in complaint to police was not unreasonable.  Appropriate directions were given to the jury in relation to the prejudice suffered by the appellant as a consequence of the delay in making that complaint.
131. [131]
     The respondent submits that the clinical conclusions reached by Dr Roberts lacked sufficient foundation and it was open to the jury to reject those criticisms.  The complainant’s credit was bolstered by evidence of preliminary complaints made between 1994 and 2013, well before the complainant’s engagement in any type of therapy.  Nothing in the evidence suggested the complainant’s account had varied.  It was open to the jury to reject the assertion that the complainant’s participation in any type of therapy rendered her inherently unreliable.

Consideration

Legal Principles

132. [132]
     Determination of a ground of appeal that the verdict of a jury is unreasonable and cannot be supported by the evidence requires an appellate court to undertake its own independent assessment of both the sufficiency and the quality of the evidence to determine whether, notwithstanding there being evidence upon which a jury might convict, it would be dangerous in the circumstances to permit the verdict to stand.^[57]
133. [133]
     The High Court explained in Pell v The Queen^[58] that:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

134. [134]
     In the present case, a consideration of the evidence as a whole supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences.  We consider that the jury, acting reasonably, was entitled to accept the complainant’s evidence beyond reasonable doubt.  The matters relied upon by the appellant did not oblige the jury to entertain a reasonable doubt as to the appellant’s guilt.  The verdicts are not unreasonable and the appeal should be dismissed for the following reasons.

     1. (a)
        The risk of altered memory
135. [135]
     The complainant’s therapy with Ms Holland commenced on 5 December 2013 and her treatment with Dr Drennan began in 2014.  By that time the complainant had already made disclosures of sexual abuse by her father to HD in 1994, MP in 1994 to 1995 and VM in 1996.  She had also told SC, firstly in 1997, and then over time up until 2013.  Moreover, the complainant raised the subject of sexual abuse by her father in the first session with Ms Holland which was on 5 December 2013.  There were nine sessions involving relaxation therapy or hypnotherapy between 11 December 2013 and 4 November 2014.
136. [136]
     Although Dr Roberts said that hypnotherapy can alter the recollection of a person or create memories, Ms Holland and Dr Drennan said that the treatments undertaken did not have that effect.  Ms Holland’s treatment included putting the complainant into a relaxed state and using guided imagery techniques as a means of reducing her traumatic response to a particular memory.  Ms Holland said that her techniques did not alter a person’s memory according to her experience and understanding.  Dr Drennan also said that the mindfulness strategies that she undertook were not likely to affect the complainant’s memory of sexual abuse.
137. [137]
     Dr Roberts expressed the opinion that Dr Drennan’s mindfulness technique, where the complainant read out her statement, could have had an effect on her memory.  However, it is clear from Dr Drennan’s evidence the strategy adopted was to prepare the complainant to give evidence in Court.  Dr Drennan said there was no risk of the process altering the complainant’s memory.
138. [138]
     Dr Roberts opined that the risk associated with such therapies became real if there was evidence of created memories or of elaboration on, or modification of, earlier memories.  A consideration of the complainant’s evidence, in the context of the evidence as a whole, supports a conclusion that it was open to the jury to find that the complainant’s evidence was consistent with a conclusion that there was no risk that her evidence involved the creation of memories or an elaboration upon or modification of existing memories.

2. (b)
   Retraction of the allegations

139. [139]
     There was evidence from the complainant and her friend MP that the complainant did not have a good relationship with her mother.  MP said that the complainant’s mother “was cold towards her a lot.”^[59]
140. [140]
     Further, the complainant’s evidence was that after VM spoke to her mother, “At first, mum was really lovely.  She cried and cuddled me and told me that she loved me, but then when we got back to the house, she called dad and dad immediately met us back at the house and I felt really, really intimidated because he was downplaying everything, telling me that – I was pretty much told I was a prude and that he always had one foot on the floor and that I imagined most of it, so I just felt really intimidated and ended up taking everything back.”^[60]
141. [141]
     The complainant said that the appellant had an answer for everything and calmed the situation down which then in turn made her back down.  The complainant explained that “I don’t think I should’ve ever had to have sit across the table from Dad while I was talking to Mum.  I don’t think that was a fair situation, and I think I would’ve said a lot more to Mum, had Dad not been sitting there.”^[61]
142. [142]
     The complainant gave a rational explanation for the retraction of the allegations.  The explanation formed a proper basis for a jury to find that retraction not persuasive in undermining the reliability or credibility of the complainant’s evidence.

     3. (c)
        The implicit denial
143. [143]
     The complainant agreed that she had earlier made a complaint to her sister, RB, that she had been sexually abused by another person, CW, and that on at least two occasions RB asked the complainant “whether anyone else had done something like that to her?”  To which the complainant responded, “No, just CW.”^[62] The complainant explained “I wasn’t going to tell her about dad.”^[63]
144. [144]
     The complainant gave a rational explanation for not disclosing to her sister that the appellant had been sexually interfering with her.  That explanation provided a proper basis for a jury to find that matter not persuasive in determining the credibility and reliability of the complainant’s evidence, either itself or in conjunction with the other matters relied upon by the appellant.

4. (d)
   The complainant’s attempt to have her sister give evidence of events

145. [145]
     The complainant’s sister, MB, said the complainant asked her to believe what she was saying about what happened in the room that if she did not believe her they would no longer be friends; and that the complainant threatened to have the appellant charged if MB did not believe her.
146. [146]
     It was open for a jury to conclude that the complainant’s credibility was not undermined by the fact that she may have sought support from her sister in circumstances where she believed her sister had seen something of relevance.

     5. (e)
        Delay
147. [147]
     The appellant submits that the passage of almost 24 years until the complainant’s evidence was pre-recorded prevented the appellant from testing the precise circumstances in which the offending occurred, whether the opportunity to offend existed and whether there were potential witnesses.  It was also pointed out that by the time of the trial, the appellant had suffered a stroke which affected his cognition.
148. [148]
     The complainant’s evidence was pre-recorded on 18 June 2018.  However, the allegations were outlined to the appellant in detail during the police interview on 29 October 2015.  The appellant said that he was first made aware of the complaint of sexual abuse during the confrontation which he said occurred in 1993 or 1994.  The complainant’s mother said that the confrontation occurred when the complainant was aged 15 or 16 which would have placed it in 1993 or 1994.  The evidence of the witness VM was that the disclosure made to her by the complainant, which preceded the confrontation, was in 1996.  In any event, the appellant was made aware of a general allegation many years before the police interview on 29 October 2015.
149. [149]
     It was an agreed fact that on 14 August 2015, the appellant was diagnosed with having suffered a stroke.  The appellant’s wife said that the stroke affected the appellant’s memory.
150. [150]
     The consequences of delay and the prejudice to the appellant were the subject of a detailed direction by the learned trial judge in accordance with Longman v The Queen.^[64]  The jury was directed that the complainant’s evidence could not be adequately tested or met after the passage of time.  The jury was directed that the appellant had lost, by reason of the delay, the means of testing and meeting the complainant’s allegations that would otherwise have been available.  The jury was directed that the fairness of the trial had necessarily been impaired by the long delay and was warned that it would be dangerous to convict the appellant upon the complainant’s testimony alone unless, having scrutinised it carefully, they were satisfied beyond reasonable doubt of its truth and accuracy.
151. [151]
     The complainant’s preliminary complaints to others were close in time to the offending and had the effect of bolstering her credit.  Further, an allegation had been raised with the complainant’s mother and the complainant received no support.  Against that background, the delay in complaint to the police was explicable and does not mean that the jury was obliged to entertain a reasonable doubt as to the appellant’s guilt.

6. (f)
   The appellant’s sworn evidence

152. [152]
     The appellant’s police interview on 29 October 2015 and his evidence at the trial formed part of the evidence for the consideration of the jury.  The learned trial judge correctly directed the jury that, by giving evidence, the appellant did not assume the responsibility of proving his innocence.  As the trial judge explained to the jury, the prosecution case depended upon their “acceptance beyond reasonable doubt of the truthfulness and accuracy of the evidence of the complainant as to the facts relating to the elements of each allegation, assessed by (the jury) in the context of all of the evidence and despite the evidence of the defendant and/or Dr Roberts.”^[65]
153. [153]
     For the appellant, it was submitted that the appellant’s evidence at the trial added to his case that the jury’s verdicts were unreasonable.  The argument was said to be supported by the judgment of Callaghan J (with whom Bond J agreed) in R v Oliver,^[66] who said that a conclusion that the verdict in that case was unreasonable was “reinforced” and “fortified” by the fact that the appellant had given sworn evidence in his own defence.^[67]
154. [154]
     In Dyers v The Queen,^[68] Kirby J^[69] and Callinan J^[70] held that the absence of sworn evidence by an appellant at their trial can be no impediment to the success of any argument that the verdict of the jury was unreasonable.^[71]  Kirby J explained the reason for this principle in this way:^[72]

“By law, the appellant did not have to say anything in his trial. He should not have been placed in a position of disadvantage by the fact that, in accordance with the then law, he elected to give an unsworn statement. To do so would amount to a form of coercion upon him to give sworn evidence. That would undermine the legal rights of the appellant and the accusatorial character of his trial. The reasoning of the Court of Criminal Appeal in this case, and in Gordon and Gordon^[73] upon which it depended, incorrectly imposed upon the appellant, in effect, an obligation to give sworn evidence that was not required by law, or to suffer a significant burden in the consideration of the reasonableness of the jury's verdict.”

155. [155]
     The accusatorial nature of a criminal trial means that an accused is not required to explain or contradict matters which are already the subject of evidence.  Those matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.^[74]
156. [156]
     Where an accused does give evidence which contradicts the occurrence of the alleged events, that evidence might enhance the prospects of an acquittal.  A jury might find the accused’s evidence to be credible and reliable, or at least be left in a state of reasonable doubt as a consequence of it.
157. [157]
     However, a jury might also reject the accused’s evidence, and in many cases, it might be influenced to do so, legitimately, by its impressions of the prosecution witnesses and of the accused.  If a jury is not persuaded to accept that the accused’s evidence is, or might be, credible and reliable, the jury must still accept the essential inculpatory evidence before it may convict the accused.  In that context, the content and probative force of the inculpatory evidence must be such that it is open for the jury to convict.
158. [158]
     It is one thing to recognise that an accused might enhance the prospects of an acquittal by giving evidence which contradicts the prosecution case.  It is another thing to suppose that when an accused does give that evidence, the degree of probative force which is required of the prosecution evidence is in some way increased.  If the prosecution evidence makes it open to the jury to convict, that will remain the position notwithstanding the fact the accused has given evidence, which added no additional facts but simply contradicted the prosecution case.
159. [159]
     The appellate court’s task requires it to make an independent assessment of the whole of the evidence, including any evidence which was adverse to the prosecution case.^[75]  However the appellate court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, and the court’s examination of the record is to see whether “notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”^[76]
160. [160]
     Where a jury is so persuaded, the question for the appellate court, upon this ground of appeal, is not whether the court considers that the appellant was guilty; it is whether it was open to the jury to reach the conclusion which it did.^[77]  As we have said, evidence by an accused which is merely contradictory of the prosecution case does not affect the degree of probative force of the prosecution evidence which is necessary to enable a jury to convict.  The fact that contradictory evidence was given by an accused could not require a jury to acquit where, absent that evidence, they were entitled to convict the accused.  It follows that the fact that an appellant gave evidence does not matter for the determination of an appeal upon this ground.  Were it otherwise, there would remain the mischief, discussed by Kirby J in Dyers, that an accused person might be coerced to give evidence at the trial, lest the prospects of an appeal on this ground be diminished.
161. [161]
     In the present case the complainant’s evidence does not contain inconsistencies, discrepancies or inadequacies, such that the jury was compelled to entertain a reasonable doubt as to the appellant’s guilt because of his sworn denials.
162. [162]
     Once that conclusion was reached, it was open to the jury to reject the appellant’s evidence as neither truthful nor reliable.  His explanation for the shed incident, and the touching of his penis lacked credibility.  In reaching that conclusion, the jury had been properly directed as to the prejudice associated with delay.  That direction is not the subject of complaint.  Further, there is no basis for this Court to conclude that the jury did not give proper regard to the contents of that direction when determining whether they were satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences.

7. (g)
   The inherent improbability of the offending

163. [163]
     The appellant submits that there are contextual features that make it improbable that the offending occurred.  It is submitted that the offending was brazen and ritualistic but not witnessed by others.  The appellant relies on the fact that her sisters, RB and MB, did not see anything untoward.
164. [164]
     The complainant’s account of the offending is not implausible.  The evidence showed that the appellant took advantage of his daughter in circumstances where her mother was at work or when he was alone with her.  The offending is not made implausible because it occurred brazenly or that the complainant’s sisters saw nothing untoward.
165. [165]
     The complainant gave a consistent account of the offending and her credibility was supported by the evidence of preliminary complaints.
166. [166]
     Once it is concluded that it was open to the jury to find the complainant’s evidence reliable and credible, it was also open to the jury to conclude that there was no inherent improbability in the complainant’s evidence, such as to give rise to a reasonable doubt as to the appellant’s guilt of each of the offences.

Conclusions

167. [167]
     On an independent assessment of the record as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences.
168. [168]
     There is no significant possibility that an innocent person has been convicted of the offences.

Order

169. [169]
     We order the appeal be dismissed.