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R v BDO[2021] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDO [2021] QCA 220

PARTIES:

R

v

BDO

(appellant/applicant)

FILE NO/S:

CA No 35 of 2021

CA No 50 of 2021
DC No 85 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 12 February 2021; Date of Sentence: 18 February 2021 (Cash QC DCJ)

DELIVERED ON:

15 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2021

JUDGES:

Sofronoff P and Bowskill SJA and Boddice J

ORDERS:

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be granted.

3. The appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant submits that, although the jury were expressly directed about s 29 of the Code, the trial Judge did not explain how “capacity to know that he ought not to do the act” might apply to the particular facts – where the appellant submits the trial Judge erred in directing the jury without qualification that a child under the age of 12 years cannot consent – where the Judge directed the jury that it was for them to decide in relation to each charge whether the appellant was 14 when an act occurred and, if not, if he had capacity at the time – where the trial Judge redirected the jury that it “might be better put that he had the capacity to know that he should not do it” and that the question for them was “has the prosecution proven beyond reasonable doubt at the time the defendant did the act he had capacity to know the act was seriously wrong according to the ordinary principles of reasonable people” – where the respondent submits there was no miscarriage of justice in the direction given in respect of s 29 of the Code – whether there was a miscarriage of justice in the manner in which the question of capacity was left for the jury’s determination

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant submits that, while s 349 of the Code provided that a child under 12 cannot consent to penetration, that amendment took effect only from 5 January 2004 – where the charge period commenced from October 2001 – where, accordingly, the trial Judge erred in directing the jury without qualification that a child under the age of 12 years cannot consent – where the respondent accepts that s 349(3) of the Code, in respect of the inability for a child under 12 to consent, was not inserted until 2003 and that, accordingly, the law as to consent was more complicated than the direction given by the trial Judge – where the respondent submits the triable issues did not include that the complainant consented to penetrative acts – where, accordingly, there was no substantial miscarriage of justice as an independent assessment of the evidence supported a conclusion that the charges were proven beyond reasonable doubt – whether the failure to direct in relation to the need for the jury to be satisfied beyond reasonable doubt that the complainant, in respect of penetrative acts which occurred prior to 5 January 2004, did not consent, occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant submits there was a miscarriage of justice as neither count 13 or 14 was sufficiently particularised to allow a common understanding of the allegation in each count – where the respondent submits there was no latent ambiguity in counts 13 and 14 – whether there was a latent duplicity

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant relied on two specific errors as grounds for leave to appeal sentence – where, firstly, an error in sentencing the appellant on the basis he was aged at least 17 years when he committed counts 13 and 14 – where, secondly, a failure to take into account whether the appellant believed the complainant was consenting to the act – where the respondent properly concedes that, as the parties did not bring to the sentencing Judge’s attention the consequences of s 387 of the Youth Justice Act 1992 (Qld) (“the Act”), there was an error in the sentencing discretion – whether s 144 of the Act ought to have applied to all counts – whether that concession requires a re-exercise of the sentencing discretion – whether the sentence imposed properly reflects the overall criminality of his conduct and all of the relevant circumstances that must be taken into account in sentencing this particular appellant

Criminal Code (Qld), s 29, s 349(3)

Evidence Act 1977 (Qld), s 132C

Youth Justice Act 1992 (Qld), s 387

Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35, followed

COUNSEL:

J D Briggs for the appellant/applicant

C M Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons and orders proposed by Boddice J.
  2. [2]
    BOWSKILL SJA:  I agree with the reasons of Boddice J and the orders proposed.
  3. [3]
    BODDICE J:  On 12 February 2021, a jury found the appellant guilty of 11 counts of rape.  The appellant was found not guilty of four further counts of rape and one count of indecent treatment of a child under 16.
  4. [4]
    On 18 February 2021, the appellant was sentenced to an effective head sentence of six years’ imprisonment.
  5. [5]
    The appellant appeals his convictions and seeks leave to appeal his sentence.
  6. [6]
    The grounds of appeal against conviction are that there was a miscarriage of justice because of a failure to direct the jury about how s 29 of the Criminal Code Act 1899 (Qld) (“the Code”) applied to the facts; as to the application of s 349(3) of the Code; and because his convictions on counts 13 and 14 involved latent uncertainty.
  7. [7]
    The grounds for an appeal against sentence, should leave be given, are that the sentencing Judge erred by failing to comply with s 132C of the Evidence Act 1977 (Qld) when finding the appellant was aged at least 17, when counts 13 and 14 were committed, and that the learned sentencing Judge erred by failing to take into account a material consideration, namely whether, at the time of any offence, the appellant believed the complainant was consenting to the act.

Background

  1. [8]
    Each of the counts involved a wide date range between 20 October 2001 and 16 November 2010.  The counts involved 13 separate incidents.
  2. [9]
    The appellant was born on 21 October 1991.  He was aged between 10 years and 19 years at the time of the commission of the offences.
  3. [10]
    The female complainant in each of the counts was born on 16 November 1996.  She was aged between four and 14 years at the time of the commission of the offences.
  4. [11]
    The appellant was her brother.

Counts

  1. [12]
    The rape counts, of which the appellant was convicted, involved penetration of the complainant’s vagina by the appellant’s tongue (counts 2 and 11), penile/oral penetration (counts 3 and 13), digital penetration (count 4), penetration of the complainant’s vagina by a vibrating pen (count 6), and penile/vaginal penetration (counts 7, 8, 9, 10, 12 and 14).
  2. [13]
    The rape counts, of which the appellant was found not guilty, alleged digital penetration (count 1), penile/vaginal penetration (counts 10 and 18) and placing a mint into the complainant’s vagina (count 15).
  3. [14]
    The indecent treatment of a child under 16 count, of which the appellant was also found not guilty, alleged the appellant put his tongue on the complainant’s vagina.
  4. [15]
    Particulars were provided by the Crown as to the particular occasion in each count.
  5. [16]
    Count 1 was said to have occurred on the lounge around Christmas.
  6. [17]
    Counts 2 and 3 were said to have occurred in the defendant’s bedroom when it was in the loft.
  7. [18]
    Count 4 occurred at Hervey Bay.
  8. [19]
    Count 6 involved a vibrating pen.
  9. [20]
    Count 7 occurred on an occasion when NB hit her head on the fan.
  10. [21]
    Count 8 occurred in the vacant space under the laundry.
  11. [22]
    Count 9 occurred in the shed on the dirt floor.
  12. [23]
    Count 10 occurred in the shed on an occasion when BB walked in.
  13. [24]
    Count 11 occurred when the complainant had a broken arm.
  14. [25]
    Count 12 occurred in the shack the children built behind the creek.
  15. [26]
    Counts 13 and 14 occurred in the shed when it was the defendant’s bedroom.
  16. [27]
    Counts 15 and 16 involved a Listerine mint.
  17. [28]
    Count 18 occurred on the island in the dam.

Evidence

  1. [29]
    At the time of the offending, the complainant was living with her parents and her siblings, the appellant, another brother, BB, and a sister, NB.  Initially, the two brothers shared a bedroom containing two separate beds.  The complainant also shared a bedroom with her younger sister.  That bedroom had a bunkbed, containing two beds on top of each other.  The complainant slept on the top bunk.  The bunkbeds were detached in 2008, after the complainant broke her arm and was unable to climb up to the bed.  After that incident, the beds were positioned parallel to each other.  The complainant’s bed was behind the bedroom door, the head of the bed being closest to the door.
  2. [30]
    The complainant attended C State School from pre-school to Year 6.  In 2008, when she was in Year 7, she attended D State School.  Thereafter, she attended N State High School.  The complainant left home at age 17, to attend university in Brisbane.
  3. [31]
    The complainant’s brothers also attended C State School for their primary schooling.  Her sister attended D State School for her primary schooling.  All of her siblings attended N State High School for their secondary schooling.
  4. [32]
    The complainant said she was sexually abused by the appellant “for years”.[1]  It started before she commenced school, when she was aged about four years.  She did not particularly remember the first occasion, but said it was before the birth of her sister on 2 July 2002.
  5. [33]
    The complainant said her first memory was of an occasion on her parents’ acreage property “down in the backtrack …near a large berm on the tree line”.[2]  She described a berm as a corner in a motorbike track.  At the time of this incident, the complainant was in the company of the appellant and BB.
  6. [34]
    The complainant said the appellant told her they were going to play a game.  He put her hands on his crotch region with pressure, before putting her hands down his pants onto his penis.  The appellant then touched the complainant under her skirt and underwear, putting his fingers in her vagina.  Later, the appellant put his penis inside her vagina while she was lying on the ground and he was on top of her.  The complainant could not remember how long the appellant put his penis in her vagina.
  7. [35]
    The complainant said she told the appellant to stop and that he was hurting her.  The complainant did not say anything to anyone else about what happened that day.  The appellant told the complainant this “was our little secret”.[3]  He said if she told anyone, he would hurt her.  The complainant said the appellant was holding her really tight when he said this to her.  The complainant said BB was present, but she was not sure where he was when all this was happening.  The appellant asked BB if he could do the same thing to the complainant.  BB did not want to touch the complainant.
  8. [36]
    The complainant said that, when she was growing up, a loft area in the house was used by the appellant as a bedroom.  It was entered by a ladder.  She identified a photograph, bearing a date 30 December 2004, as depicting the appellant in the loft at a time when he was using it as his bedroom.  He was the only person who slept in the loft.  The complainant could not remember how long before the taking of that photograph the appellant had moved into the loft bedroom.
  9. [37]
    The complainant said there was a specific time she visited the appellant in that loft bedroom.  It was “later primary school”.[4]  The appellant had asked her the night before to meet him in the room as soon as she woke up in the morning.  The complainant said the appellant would ask her to go to his room “pretty often”.[5]  When she went up to the bedroom that morning, they initially talked and played a card game.  However, the appellant touched the complainant on the vagina over the top of her clothing, before moving underneath her underwear and putting his tongue inside her vagina (Count 2).  The appellant then held the complainant’s head and put her mouth around his penis (Count 3).  The appellant ejaculated in the complainant’s mouth and held her head so that she had to swallow his semen.
  10. [38]
    The complainant said this incident happened on the bed early in the morning.  She did not recall any conversation other than she was not to tell anyone.  Everyone else was still asleep in the house.  The complainant said it had happened before.  It would happen “every single time he would sexually abuse me”.[6]  The complainant could not recall if that was the first time that there had been oral penetration.
  11. [39]
    The complainant said on an occasion when she had been riding motorbikes with the appellant, they stopped near a shack on the hill near the track.  It was made up of an old swing set and odd timber, with palm fronds making the side of the wall.  It had a timber slatted bench inside.  The shack had been built by the three children during the holidays as a cubbyhouse.  The complainant said the appellant described the shack as their secret little hideaway.  The appellant would always take her there when she was alone.  The appellant would stop BB from coming with them.
  12. [40]
    The complainant said, after they went inside, they talked at first before the appellant lifted the complainant up onto the bench and pulled down her pants.  The appellant put his penis in her vagina.  The complainant said when she screamed, the appellant put a rag over her mouth.  The appellant stopped when he heard their father start his motorbike.  The appellant told her to pretend she had fallen off her motorbike.  By the time her father arrived at the shack, they were both outside.  The complainant was pretending to pick up her motorbike.  She told her father she had fallen off.  The complainant said she did not consent to the appellant putting his penis in her vagina.
  13. [41]
    The complainant described this incident as having occurred “in late primary school”.[7]  She was riding a blue TTR motorcycle.  She shared it with BB and swapped in between it and a smaller bike.  The complainant mostly rode the TTR motorbike from grades 6 to 7 onwards.  She and her brothers would ride the bikes almost every day.  They were always riding on the weekends.  They rode all over the property, having made up tracks through the bush.
  14. [42]
    The complainant said these incidents happened there all the time.  It was hard to pinpoint distinct memories because the sexual abuse occurred so often.  The sexual abuse “was penetration.  He would rape me there”.[8]
  15. [43]
    The complainant said in early high school she moved out of the bedroom she had shared with NB into a bedroom next door.  There had, however, been sexual contact between the appellant and the complainant whilst she was sharing the bedroom with NB.  The appellant “would always come in in the middle of the night”.[9]  He would slide his hand under the sheets and put his fingers inside the complainant.  There were times when he would also put his tongue inside of her.  The complainant said the appellant was tall enough to reach the top bunk.
  16. [44]
    The complainant recalled two particular occasions in that bedroom.  The first one was in the middle of the day when she was playing in the bedroom with her sister.  The complainant was on her sister’s bed.  NB was on the top bunk.  The appellant walked directly to the complainant, covered her mouth with a pyjama shirt and put his penis inside her vagina (Count 7).  Everyone was at home.  Her mother was on the computer and her father was watching TV.  The complainant said, as they were all at home it was either the weekend or school holidays.  It was summer because it was really hot and the fan was on high.
  17. [45]
    The complainant remembered wearing a top and pants.  The appellant pulled her pants down, got on top of her and placed a shirt over her mouth.  This incident stopped when NB either sat up or stood up on the top bunk directly underneath the ceiling fan.  She skimmed her head.  The appellant tried to calm down NB.  The complainant said the appellant “knew we’d get in trouble otherwise, because [the sister] wasn’t allowed to be on the top bunk by herself.”[10]  The complainant said the appellant again told her not to tell anyone.  He then left the room.  The complainant said she did not consent to having sex with the appellant.  The complainant said this incident happened when she was at primary school.
  18. [46]
    The second occasion happened when the bunkbeds had been dismantled after the complainant had broken her arm in July 2008.  The complainant recalled her arm was in a sling.  It was winter.  She was wearing long flannelette pyjamas.  The complainant said she woke up in the morning to the appellant inserting his fingers into her vagina and putting his tongue inside her vagina underneath the bedsheets (Count 11).  Her sister was asleep in bed at the time.  The complainant said she froze.  She did not want her sister to wake up.  That incident ended when the appellant left the bedroom.
  19. [47]
    The complainant said a further incident took place in a really small shed in front of the house.  It was made of chipboard.  It housed her father’s extra tools and bits of pieces.  There was an old car sitting under the carport adjoining it.  The complainant said she had been playing with her brothers in the cubbyhouse adjacent to the shed before the appellant took her into that shed.  They would sometimes play in that shed.  There was a bench and a seat in the shed.  The bench had been cleared off by the appellant.  He placed her on the bench, took off her pants and underwear and put his penis inside her vagina (Count 10).  The complainant said BB walked in and then left the shed.  The complainant said non-consensual intercourse of all sorts happened in that shed.  It was either the appellant’s fingers, tongue or penis.  It happened quite a bit in that shed.
  20. [48]
    The complainant said there was another shed located in a horse paddock when she was in primary school.  She said on an occasion when it had been raining quite heavily, she and her brothers were playing a game of dare in the rain near the horse paddock.  The appellant dared them to ride the horse, which they were not allowed to do because their mother was not there.  BB rode the horse and ended up falling off.  The appellant then dared them to touch the horse’s genitals.  They both refused to do so.  The complainant said the appellant “got really mad”.[11]  He took the complainant alone to the shed in the horse paddock.  He put the complainant on the mud dirt floor, pulled down her pants and put his penis in her vagina (Count 9).  BB was not there at that time.  The incident happened in late primary school.
  21. [49]
    The complainant said that, at one point, the appellant moved out of the loft bedroom to a shed her father had originally built for storage.  It was adjacent to the house.  The complainant said there were frequent times when the appellant would put his penis into her vagina in that shed.  The appellant would make her sit down on car seats located in the shed.  The appellant would then sit on top of her or he would make her put her mouth around his penis.  This occurred when she was “late primary school, early high school”.[12]
  22. [50]
    The complainant said on one specific occasion, she had gone to the shed after her mother requested her to ask the appellant to do something.  His response, which the complainant described as “a very common response to anything that I had to ask him – was, ‘What do I get out of it?’”[13]  The complainant said she got really mad and tried to leave, but the appellant took her inside and locked the door.  He sat the complainant down on the car seats and made her put her mouth around his penis (Count 13).  When that was over, he put her on the seat and sat on her and put his penis inside her vagina (Count 14).  She could not remember if he ejaculated on that occasion.
  23. [51]
    The complainant said there were occasions, when there was a bed inside that shed, and that the appellant would put his penis inside her vagina.  The complainant said there were times when BB and the complainant would go to the shed and play video games.  If BB left at any point, the appellant would engage in those intercourse activities.  The complainant did not consent to the appellant doing those things to her.  The complainant said she could not leave if the door was locked.  She described the door as “a really heavy door”.[14]
  24. [52]
    The complainant said the appellant would put a lot of things in her vagina beside his fingers, penis and tongue.  There was a wooden sphere object that he made in their father’s shed.  There was a carrot, a hairbrush and a pen with a vibration up the top.  The complainant said that last incident happened when she was on the top bunk in late primary school.  It was night-time.  The appellant came into her room, lifted the sheets and put the pen inside her vagina (Count 6).
  25. [53]
    The complainant said the appellant also put a Listerine mint in her vagina.  She described the mint as something you put on your tongue.  It was a really strong mouth wash.  The complainant said she was under the house playing with BB in the dirt.  The appellant came down with a pack of Listerine mints.  He dared the complainant to put one in her vagina.  She said no, but the appellant pulled up the bottom half of her clothing, moved her underwear and put it inside her vagina (Count 15).  The appellant also put his tongue on her vagina (Count 16).  The mint really burnt her vagina.  It was really painful.
  26. [54]
    The complainant said there was an occasion in early to mid-primary school when the complainant was playing in the dirt under the house, that the appellant put his fingers in her border collie’s bottom.  The complainant was crying and screaming, telling the appellant not to do that and “to do whatever he wanted to me but not to the dog”.[15]  The complainant said the appellant used that as a threat against her afterwards “[t]hat if I didn’t let him do whatever he wanted to me, then he’d do it to the dog”.[16]
  27. [55]
    The complainant said there was another occasion in mid-primary school, when the appellant took her underneath the laundry, which could only be accessed from outside the house.  The appellant pulled down the bottom half of her clothing and put his penis inside her vagina (Count 8).  The complainant was laying down on the dirt.  The appellant was on top of the complainant.  The complainant said her mother walked into the laundry.  The appellant paused what he was doing and continued after the mother left the laundry.  The complainant did not consent.
  28. [56]
    The complainant said other incidents took place in her father’s shed.  There was an area towards the left-hand side corner, which contained a single bench.  It had black fabric sheets stapled to the bench so that underneath the bench was hidden.  The appellant would take her underneath the sheets and insert his fingers, tongue and penis inside her vagina.  The complainant said this happened quite often throughout primary school and late primary school.
  29. [57]
    The complainant said the property had two dams.  One dam had an island in the middle.  You had to cross the creek to get to the island.  The complainant said, in early primary school, the appellant took her to the island.  He made a flat area in the grass, lay the complainant down, pulled off the bottom half of her clothing and put his penis inside her vagina (Count 18).  She did not consent.  The island was not very visible from other parts of the property.  It was very bushy and very grassy.
  30. [58]
    The complainant said they went on two family holidays in 2005.  They attended a wedding in Hervey Bay on 9 July 2005 and visited the complainant’s mother’s friend at Yamba on 9 February 2005.
  31. [59]
    They stayed in a small, two bedroomed motel room in Hervey Bay.  The complainant’s parents were in one room with the complainant’s sister.  The complainant was in the other room with her brothers.  Her bedroom had a single bed and a bunk bed.  The complainant wanted to sleep in the single bed, but BB was sick and slept in that bed.  The complainant “had a bit of a tantrum”[17]  but her mother told them all to go to bed and not come out of the room. The complainant was on the bottom bunk.  The appellant climbed down off the top bunk and inserted his fingers inside her vagina.  BB was asleep in the single bed at this time.
  32. [60]
    The complainant said the family stayed in a cabin at Yamba.  There were two separate rooms.  Her parents had one of the separate rooms.  The cabin was located in a resort, which had a kiddie’s pool and a big pool behind it.  There was a slide going into the big pool.  You had to walk upstairs behind some bushes to reach the slide.
  33. [61]
    The complainant said whilst they were walking back to the slide, the appellant touched her on the bottom and on her vagina over the top of her bikini.  They were behind the bushes out of sight.
  34. [62]
    The complainant said one night near Christmas time, when she was watching TV in the lounge room area of their home, seated between her brothers, the appellant put his hand between her legs and put his fingers inside her vagina (Count 1).  The entire family were present.  The complainant was wearing a small silk purple nightie, with underwear.  The complainant sat there frozen.  She did not know what to do.  The occasion occurred in early to mid-primary school.
  35. [63]
    The complainant said there were other occasions when the appellant touched her sexually whilst she was in primary school.  The appellant would corner the complainant and put his hands down her pants or put the complainant’s hands down his pants in the crotch region.  There were times on the couch when the appellant would lay his hand where the complainant was to sit on the couch.  The complainant would always choose to sit somewhere else.
  36. [64]
    The complainant accepted there were times when she got along with the appellant.  He was an older brother.  She wanted to play with him and BB.  The complainant was an outside kid, who was always trying to play with her brothers.  The complainant also accepted there were occasions when the appellant was kind to her, but “in a way that he would threaten me in a way that he – he was being nice, and that I had to be nice back to him and do things for him. And he had to be able to touch me and do things to me because he was being – because he was being nice”.[18]
  37. [65]
    The complainant said, towards the end of the years of sexual incidents, the appellant was violent towards her as she was resisting a lot more and was a lot more forceful.  The complainant said she was “coming to terms with what was happening and realising that it wasn’t how he was describing it to me.  It wasn’t something that brothers and sisters just do”.[19]  On these occasions, the appellant was very violent.  The complainant said she reacted in violent ways, scratching, punching and pushing the appellant away.  The appellant was a lot stronger and would hold her down.  He would use clothing to gag the complainant to stop her from screaming, which was her “main defence”[20] towards the end.
  38. [66]
    The complainant said she experienced her first period when she was 15 years of age.  The appellant had spoken to her about sanitary products.  The appellant gave her a sanitary pad and asked the complainant if she had had her period.  The complainant said no.  The complainant said there were times when the appellant would taunt her and call her “period girl”.[21]  The appellant was always trying to get the complainant to tell him whether or not she had had her period.  The complainant always said no.  The complainant did not ever tell the appellant when she got her period.
  39. [67]
    The complainant said the appellant would invade her privacy in other ways.  She would often find the appellant standing, peering in when she was in the bathroom or getting changed in her room.
  40. [68]
    The complainant said the sexual abuse stopped in early high school, around the age of 12 or 13.  The complainant was resisting a lot more and using threats:

“as – if he was to touch me, that I would tell Mum and Dad everything that he’d done to me. And it was around the same time that he had interest in other girls and around the time that he would’ve started to see his first girlfriend”.[22]

  1. [69]
    The complainant said the very first time she told someone about what the appellant did to her was in high school.  A friend was trying to figure out why the complainant was upset.  The friend asked the complainant questions, including if someone had hurt her.  The friend “went through from my dad to my other brother BB, and I very defensively said no, that they would never do that to me. And I was really quiet when she asked me if it was my oldest brother. And I didn’t go into any detail, but she – she knew from then onwards.”[23]  It was in Year 10 or 11, mid to late high school.
  2. [70]
    The complainant first told her mother in November or December 2016.  The complainant had just moved back to Cooran from university in Brisbane.  The complainant was having a really bad panic attack.  Her mother asked what was wrong.  The complainant said that for years of her life the appellant “had been sexually abusing me”.[24]  The complainant did not go into much detail.  Her mother asked why she had not told her sooner.  The complainant said growing up she did not have a good relationship with her mother.
  3. [71]
    The complainant went on exchange to America for six months from the start of 2017.  Whilst in America, her cousin sent her a message congratulating her on becoming an aunty.  Her cousin said the appellant was having a baby girl.  The complainant had “a really big panic attack”.[25]  One of the complainant’s friends was present.  The complainant told that friend she was really worried about the appellant having a child.  She did not go into too much detail but told the friend the appellant had sexually abused the complainant for years of her childhood.
  4. [72]
    The complainant said she received sex education at school.  She thought it was in grade 6 in primary school.  She also received some later education in high school.  She spoke to her mother about the sex education when she was in primary school.
  5. [73]
    In cross examination, the complainant accepted that, from grade 6 in primary school, she knew that what the appellant was doing to her was wrong.  She did not accept that she knew as soon as the very first time, but accepted she told the appellant on that occasion not to touch her and that she said no.  The complainant accepted she also resisted and screamed at the appellant.  The complainant said she was “more coerced. I was – I didn’t feel like I had an option”.[26]
  6. [74]
    The complainant accepted that, right from the commencement, when the appellant told her to keep it a secret, that that meant there was an element to what she was doing that was wrong.  She also agreed that she knew from a young age that BB knew what was happening.  She agreed she did not ever seek help from BB.  She did not ever ask BB to talk to the appellant.  The complainant said she would just try to play alone with BB.  The complainant never felt she could ask BB for help but accepted that BB had never threatened her or touched her inappropriately or done anything that made her scared of him.
  7. [75]
    The complainant agreed that BB was closer in age to the appellant.  She tried to play with BB mostly to avoid being with the appellant.  When BB left the appellant and her, she did not have any opportunity to leave with BB.  The appellant “had hold of me”.[27]  There was not really anything that BB could do, as he was the same strength as her and neither were very strong in comparison to the appellant.  She agreed that she was saying that the two of them against the appellant could not have stopped her from being held by the appellant.  The complainant said it was not her choice as to when BB left – the appellant would make BB leave.  The appellant would threaten all the time that he was going to hurt her if she did not do what he wanted her to do.  The complainant did not agree that any threats could not have been any worse than what the appellant was doing to her.  The complainant said “he was violent just in general.  He was a lot bigger than me, to physically just hurt me, just generally.”[28]
  8. [76]
    The complainant did not accept she knew her parents would take a strict view of any violence from the appellant.  There were physical fights between all three children growing up and her parents did not really do anything.  They would tell them to stop but there was no real punishment.  The complainant did not believe she could quickly bring the appellant’s behaviour to an end.  She did not have a good relationship with her mother.  She did not have anyone to talk to.  She did not think her mother would believe her.  The complainant said, when she did tell her mother, her mother did not really believe her anyway.
  9. [77]
    The complainant accepted that, on the occasion when she said everybody was in the lounge room and the appellant put his fingers in her vagina, she did nothing.  She did not resist or move seats or punch the appellant.  The complainant said, towards the end of the period of abuse, she did scream, resist and punch out when she was alone.  The complainant denied that the reason she did not complain was because, from the beginning, both she and the appellant were consensually involved in sexual touching.  The complainant said on every occasion she did not choose to take part in such offending.  There were occasions she did not do anything to resist because she was “frozen. I couldn’t do anything.”[29]
  10. [78]
    The complainant said there was no understanding between her and the appellant that they would have a sexual relationship where the complainant would touch the appellant’s genital area, masturbate him and he would touch her genital area.  The complainant said it happened, but it was not consensual.  She did not want that to happen.  The complainant denied the suggestion that the appellant never had sexual intercourse with her, penetrating her with either his fingers or penis.  The complainant said every time the appellant lay on her near her genitals, it would always end in penetration.
  11. [79]
    The complainant denied the sexual relationship with the appellant stopped once the appellant reached high school.  It stopped when the complainant reached high school, in early grade 8.  The complainant was in grade 8 in 2009.
  12. [80]
    The complainant said she spoke to her mother about the sex education she received in primary school because she had to speak to her parents about it.  The complainant, at that point in time, thought it would be a good time to tell her mother about the appellant’s offending conduct but “couldn’t work up the courage to say anything”.[30]  The complainant said that, when she referred to later in primary school, she was referring to grades 5, 6 and 7.
  13. [81]
    The complainant thought a photograph, which had been taken of the appellant in the loft on 30 December 2004, was taken at the beginning of the time when the appellant was sleeping in the loft bedroom.  He slept in that area for a few years.  The complainant said the appellant asked her to meet him in that bedroom on more than one occasion.  The complainant did not accept she knew it was dangerous for her to go to his room at his request.  As a young girl, it seemed more dangerous to not do so as it would have been worse later on, “That’s how it worked”.[31]  The complainant said it was worse the next time it happened.
  14. [82]
    The complainant accepted, on the occasion she said she was raped by the appellant putting her on the bench in the shed, BB walked in whilst it was happening.  The complainant accepted no gag was used on that occasion but said the penetration of her vagina by the appellant’s penis was not consensual.  BB just walked in and out.  The complainant did not remember yelling out.  The complainant said, on the occasion she heard her father’s motorbike starting up, there was penetrative sex.  On that occasion, the appellant had a rag over her mouth, even though there was nobody else around.
  15. [83]
    The complainant said on the occasion her arm was broken and the beds had been separated, the appellant put his fingers and tongue inside her vagina.  The complainant accepted, in her statement to police, she had said that incident involved the appellant touching her on the vagina and putting his tongue in her vagina.  She did not accept that touching her vagina was different to inserting his fingers into her vagina.  The complainant accepted she told police, in respect of that incident, “I remember literally waking up to BDO kneeling beside my bed with his head under my sheets and him licking and putting his tongue in my vagina”.[32]
  16. [84]
    The complainant said the appellant did not ever ask her if she was okay to have sex with him.  The appellant once said that he was trying to be nice and would try to make her wet and use his saliva as a way of being nice.  He put his saliva on her vagina.
  17. [85]
    The complainant said she did get punished by her mother.  There was the use of a wooden spoon and general smacking and slapping.  Horse whips were also used on the complainant.  Usually, her father stayed out of it.  A similar approach was dealt to the other children but to a lesser extent.  The complainant did not recall any of them ever being whipped with a horse whip.

Pretext call

  1. [86]
    The complainant first made a complaint to police on 5 November 2018.  At that time, she telephoned the appellant from the police station.  During that conversation, the complainant told the appellant she needed to know “why you did what you did to me when I was younger”.[33]  The appellant replied “I don’t understand why we did what we did.  I was young as well.  I don’t know what I was doing.”  The complainant also asked the appellant why he had made the shack at the back of the house and why he took her there all the time.  The appellant replied “Well we were kids.  We made a little shack out the back in the paddock.  BB helped too.  Well that’s just what kids do when we are little.”[34]
  2. [87]
    Thereafter, the following exchange took place:[35]

Complainant “You sexually abused me, BDO.

Appellant No I didn’t.

Complainant Yes you did.

Appellant We both – we both were just as bad with each other.  We didn’t know what we were doing.

Complainant No.

Appellant I did.  Neither of us knew what we were doing.

Complainant No.  You knew exactly what you were doing.

Appellant No I didn’t.  SB, I was very young too.

Complainant I just need an explanation.

Appellant But I am giving you the best explanation I can.  I don’t know why I did it.  I don’t know why we both did it.  We were kids, SB.  We were just, you know, I don’t – I can’t explain it.

Complainant So?

Appellant I am truly sorry for everything that we did do.  I didn’t know … You know there’s not that many years apart between us, SB.  I certainly didn’t know what I was doing and once it happened it happened and you know.

Complainant You continued to do it.

Appellant Once we were both old enough to know what we were doing we stopped and that was it.  We were very young and I have looked up this on the internet.  It happens quite often.  It’s just what happens when little kids experiment you know.

Complainant I wasn’t – I was not willing to do this.

Appellant We were both little, SB.  We were both underage.  We both didn’t know what we were doing.

Complainant I was not trying to do anything.

Appellant I am sorry, SB.  I don’t know what else you want me to tell you.

Complainant I … so you just – you are acknowledging the fact that you did assault me?

Appellant Pardon?

Complainant You are acknowledging the fact that you did assault me for years of my life.

Appellant I did not assault you.

Complainant You did.

Appellant I didn’t, SB.

Complainant You did, BDO.

Appellant I don’t know what else to say to you.  I honestly can’t say what – I don’t know what you want me to tell you.

Complainant That you assaulted me for years of my life and made it…

Appellant I never did anything unless it was consensual.

Complainant It was not consensual.

Appellant It was, SB.

Complainant It was not.  What about the time that you took me to the shack and then we were on the motorbikes and dad ended up coming and you made me pretend like I’d fallen off the bike and hurt myself just so he didn’t know?

Appellant I don’t know what to say.  Look I’ve got to go.  I am out shopping.

Complainant You can’t even apologise for anything.”

Preliminary complaint

  1. [88]
    ZN gave evidence that she met the complainant in grade 11 through high school.  She thought it was 2012.  She did not know the appellant.
  2. [89]
    ZN remembered an occasion in Year 11 when the complainant told her she was raped by her brother from when she was about eight years old until she was in about Year 6.  The complainant told ZN to forget that she had told her.  The complainant said the appellant threatened that she could not tell anyone.  When it eventually stopped, she would just make sure that she was always around other family members so that it could not happen anymore.
  3. [90]
    In cross examination, ZN said the complainant initiated the conversation.  ZN could not remember the complainant’s exact words but said she had communicated sexual assault, rape.  ZN did not think the complainant disclosed whether it was penis in vagina rape.  The complainant made it clear that she was scared of her brother.  ZN has not spoken to the complainant since the end of Year 12.
  4. [91]
    AP gave evidence that she met the complainant whilst on exchange in America.  They remain friends.  In early 2017, she recalled the complainant being visibly quite upset after receiving a Snapchat message from her cousin: “Congratulations, you’re going to be an aunt.”[36]  AP asked the complainant if she was upset because of her brother and whether he hurt her.  The complainant nodded to both questions but did not provide other details.  However, on a different occasion, the complainant told her it had started when she was four.  She did not provide any other details.

Other evidence

  1. [92]
    NB was interviewed by police on 7 January 2018.  At the time, she was aged 15, having been born on 2 July 2002.  NB told police that her older siblings were always at high school, but they all got along.  NB said the appellant left home when she was still in primary school.  NB recalled arguments over who would sit where on the couch but could not remember anything else.  Initially she bunked in the same bedroom with the complainant.  When NB was in grade 2 or 3 the complainant moved into another room.  NB thought, at that stage, the appellant had left the home.
  2. [93]
    NB had the bottom bunk as she was the youngest.  Occasionally, she would play cards with the complainant on the top bunk.  There was a ceiling fan in the room.  NB did not ever remember hitting her head on that fan.  NB recalled an occasion when the complainant broke her arm.  She thought the complainant was in grade 7.  Around that time they were still sleeping in the same bedroom but with two beds in the room.
  3. [94]
    In cross examination, NB said she occasionally played with the complainant and her older brothers, but not very much because they were mostly at school.  She did not recall noticing anything unusual between the complainant and the appellant.  NB accepted her parents would get involved in any arguments between the siblings.  If one of them did something wrong, it would definitely not go unpunished by their parents.
  4. [95]
    NB accepted the appellant had not ever touched her in any way inappropriately or sexually.  She did not ever see anything inappropriate or sexual between the complainant and the appellant.  The appellant never said anything to her about keeping secrets about him and the complainant.  NB said it was more BB and the appellant that “would hang out together being the brothers”.[37]
  5. [96]
    The complainant’s mother gave evidence that the complainant started grade 1 the year she turned six.  She said her four children generally played well with each other.  She always thought the complainant and the appellant had a close relationship.  Usually, the three older children played together.  The four of them played together after the complainant’s younger sister was born.  They would play unsupervised around the property.  They were not allowed to go near the waterway located on the property.  That waterway was attached to a dam.  The children were not allowed to go to the dam without any adults.
  6. [97]
    The complainant’s mother said the two girls shared a bedroom up until either the complainant’s late primary or early high school.  The bedroom had bunkbeds but, at some point, they were separated.  The boys also shared a bedroom until the appellant moved into the loft above the bathroom, in mid high school, about grade 9 or 10.  The appellant stayed in that loft bedroom until about Year 12 or just after Year 12, when he moved into the shed previously used for storage.  There was a bed in that shed, once the appellant moved into it as a bedroom.  The appellant also had seats from a car, with a console in the middle, until he got a lounge.
  7. [98]
    The complainant’s mother said the complainant broke her arm when she was in Year 7.  The family went on a holiday to Hervey Bay in 2005.  In the same year, they also went on a holiday to Yamba.
  8. [99]
    The complainant’s mother described the appellant as quiet through primary school.  The children just had general fights.  They would get a smack from the complainant’s mother.  On very rare occasions the complainant’s father would discipline them.  Only the child causing a problem would get a smack.  The appellant was disciplined for fighting with his siblings and for doing the wrong thing.  She would ask him to leave that situation or to apologise.
  9. [100]
    The complainant’s mother spoke to all of the children about sexual education:

“Right from the word go when they were littlie little it was always told that they were not to allow anyone to touch them.”[38]

  1. [101]
    Both the appellant and the complainant had sexual education at primary school.  She was not sure about high school.
  2. [102]
    The complainant’s mother said she first spoke to the appellant about sexual education when he was a toddler.  She spoke to him about the correct body parts so that they knew the right words to say if anyone touched them.  She spoke to him on more than one occasion.  She had these conversations when she thought the children were old enough to know and understand their bodies and that they needed to protect themselves.  The conversation was that no one was allowed to touch any private part of their body.  If it happened, they were to let somebody know as that was wrong.
  3. [103]
    The complainant’s mother said in 2016, after the complainant had moved out to start university, the complainant told her the appellant had sexually assaulted her.  She suggested the complainant go to the police.  The complainant would not say anything, so the complainant’s mother called the complainant’s father to tell him to tell the appellant not to come home.
  4. [104]
    The complainant’s mother said the complainant later went overseas.  When she returned in 2017, she had another conversation with the complainant.  The complainant told her that the appellant had raped her.  She did not provide any more details.  The complainant’s mother spoke to the appellant and said he should not have done anything.  The appellant replied that they were young and he did not know what happened to him.  The complainant’s mother replied “You did.  You always knew that no one was to touch your bodies.”[39]  The appellant then left the house.
  5. [105]
    In cross examination, the complainant’s mother accepted she had once threatened to punish the complainant with a horse whip but said she did not actually hit the complainant.  She did not accept that the complainant attracted a greater degree of discipline than the other children.  She did not ever recall seeing the complainant and the appellant have physical fights.  In their teenage years they had a difficult relationship.  She thought it was hormonal.  There were times when they got along and other times when they could not stand each other.  She did not notice anything unusual or noticeable about the complainant avoiding the appellant.
  6. [106]
    They made it very clear to the children that going near the waterways was out of bounds.  She recalled an occasion when the complainant had a friend over and they took NB down to the creek.  The complainant’s mother was very angry and gave a verbal dressing down, saying “don’t ever do that again”.[40]
  7. [107]
    The complainant’s mother accepted there was a ceiling fan in the girls’ room when they had bunk beds.  The ceiling fan was far enough away that you were not in danger of bumping your head on the fan if you are on the top bunk.  NB was not allowed on the top bunk because of her age.
  8. [108]
    The complainant’s mother said the appellant was diagnosed with dyslexia.  He could not read properly.  The appellant started grade 1 when he was either six or seven.  The appellant was not problematic at school.  He was a quiet boy.  There was never anything unusual or awkward regarding her conversations about sex education from school with either the complainant or the appellant.  She told them to be aware that if anyone touched them on their private place “it is not on and they were to tell – tell an adult: Mum, Dad, even a teacher or police if they had to”.[41]  It was made clear to both the complainant and the appellant that the home environment was a safe place for them to be able to tell her if that happened.
  9. [109]
    The complainant’s father said the relationship between the appellant, the complainant and BB was “very good”.  They were close.  They would play unsupervised on different areas around the property.  There were not any particular places they were not allowed to go.  The property had a seasonal creek, with a couple of water holes and a dam.  At one stage the dam had an island on it.  It was excavated when the appellant was at the end of primary school or just starting high school.
  10. [110]
    The complainant’s father accepted that the appellant, at one stage, slept in the loft area of the house.  He had a separate room that was not in the house when he was aged in his early 20s.  He believed the appellant started sleeping in the loft area in his early high school years.  The appellant moved into the shed after high school.
  11. [111]
    The complainant’s father accepted that the complainant and her sister shared a bedroom.  It had bunkbeds which could be converted into two single beds.  The complainant broke her arm when she was in about grade 5 or 6.  He also recalled being given a box of mints containing individually wrapped mints.  He brought them back to the house.  He gave them to the children.
  12. [112]
    The complainant’s father recalled an occasion when the complainant and the appellant were riding their motorbikes.  He could not hear the bikes at one stage, so he went looking for them on his motorcycle.  He found them up in the back paddock, near a shed.  They were getting back on their bikes.  They were wearing their motorbike gear, long pants and long shirt and helmets.
  13. [113]
    The complainant’s father accepted that the appellant had difficulty with some subjects in primary school.  His performance was below average to average.  There was, however, nothing out of the ordinary in his behaviour at school.  He was in no more trouble at home than a normal child.  When he was disciplined, he was verbally disciplined.  He did not ever speak to the appellant about sexual education.
  14. [114]
    In cross examination, the complainant’s father said that the appellant, the complainant and BB played together and separately.  All three of them were interested in motorbike riding.  The appellant and the complainant did not have an exclusive play relationship.  When he went looking for the complainant and the appellant on the motorbike, the complainant did not bring anything to his attention.  The shed they were located near had been put together by the children.  It was an A frame type swing that had tin leaning up against it.  There may have been some furniture in it.
  15. [115]
    The complainant’s father did not ever notice anything sexually inappropriate between the appellant and the complainant.  He did not notice anything unusual in their relationship generally.  He built a cubbyhouse for the children out the front of the main house.  It had walls that did not go all the way to the roof.  It was built in that area specifically so they could keep an eye on the children from the house.
  16. [116]
    The complainant’s father accepted he had a close father/daughter relationship with the complainant.  It was fair to say their mother was more the disciplinarian.
  17. [117]
    Angela Purcell, a police officer, took the complaint from the complainant on 30 September 2017.  She subsequently charged the appellant on 5 February 2018.  She agreed the appellant did not have any criminal convictions.
  18. [118]
    Formal admissions were made that the appellant was born on 21 October 1991; the complainant was born on 16 November 1996; during the investigation police approached BB for a statement but he said he could not remember anything; on 28 February 2018 police attended the Cooran property and took photographs of the property.
  19. [119]
    At the conclusion of the Crown case, the appellant elected to neither give nor call evidence.

Conviction

Appellant’s submissions

  1. [120]
    The appellant submits that, although the jury were expressly directed about s 29 of the Code, the trial Judge did not explain how “capacity to know that he ought not to do the act” might apply to the particular facts.  The Judge directed the jury that it was for them to decide in relation to each charge whether the appellant was 14 when an act occurred and, if not, if he had capacity at the time.
  2. [121]
    Further, even after the jury sought a direction about whether it was criminally wrong between the ages of 10 and 14, the trial Judge redirected the jury that it “might be better put that he had the capacity to know that he should not do it”[42] and that the question for them was “[h]as the prosecution proven beyond reasonable doubt at the time the defendant did the act he had capacity to know the act was seriously wrong according to the ordinary principles of reasonable people”.[43]
  3. [122]
    The appellant submits that, as the contents of the pretext call expressly raised that neither the appellant nor the complainant knew what they were doing, the fundamental question concerning capacity was whether the prosecution had proved that, at the time of the particular act, the appellant had capacity to know it was seriously wrong to penetrate or indecently touch the complainant “even if she was allowing him to penetrate or touch her or if he believed she was allowing it”.
  4. [123]
    The appellant submits that, as the jury was inadequately directed on a matter fundamental to prove that guilt, there was a miscarriage of justice.  The proviso should not apply as the Court could not be satisfied, after making its own independent assessment of the evidence, that the appellant was proved beyond reasonable doubt to be guilty.
  5. [124]
    The appellant further submits that, while s 349 of the Code provided that a child under 12 cannot consent to penetration, that amendment took effect only from 5 January 2004.  The charge period commenced from October 2001.  Accordingly, the trial Judge erred in directing the jury without qualification that a child under the age of 12 years cannot consent.  The jury ought to have been directed that, if they were satisfied that the particular charge was committed prior to 5 January 2004, they must also be satisfied beyond reasonable doubt that, although the complainant was under 12 years when the given act happened, there was no consent.  The failure to do so amounted to a miscarriage of justice, in respect of which the proviso was inapplicable.
  6. [125]
    Finally, the appellant submits there was a miscarriage of justice as neither count 13 or 14 was sufficiently particularised to allow a common understanding of the allegation in each count.  Both were said to have occurred in a shed, which was converted to a bedroom, in circumstances where the complainant alleged there were other occasions of similar acts of sexual misconduct in the shed.  Accordingly, several instances of rape broadly fell within the descriptions in counts 13 and 14.  Again, the proviso is inapplicable.

Respondent’s submissions

  1. [126]
    The respondent submits there was no miscarriage of justice in the direction given in respect of s 29 of the Code.  The initial direction was consistent with the Bench Book and the subsequent direction, that the prosecution must prove beyond reasonable doubt that, at the time the appellant did the act, he had capacity to know the act was seriously wrong according to the ordinary principles of reasonable people, was a benefit to the appellant.  Those directions adequately directed the jury as to the issues to be determined by them.
  2. [127]
    The respondent accepts that s 349(3) of the Code, in respect of the inability for a child under 12 to consent, was not inserted until 2003 and that, accordingly, the law as to consent was more complicated than the direction given by the trial Judge.  However, the respondent submits the triable issues did not include that the complainant consented to penetrative acts.  Accordingly, there was no substantial miscarriage of justice as an independent assessment of the evidence supported a conclusion that the charges were proven beyond reasonable doubt.
  3. [128]
    Finally, the respondent submits there was no latent ambiguity in counts 13 and 14.  The complainant described specific occasions of oral and vaginal penetration without her consent when her mother had asked her to go to the shed, to ask the appellant something, in response to which the appellant asked the complainant “what do I get out of it”.  Other references to general conduct in the shed were distinguishable.  There was no miscarriage of justice in the particulars of these counts, as an independent assessment of the evidence supported a conclusion that these counts were proven beyond reasonable doubt.

Consideration

Ground 1

  1. [129]
    A trial Judge, in directing a jury, must explain the applicable law, having regard to the issues at trial.  The task is to identify the real issues in the case and to relate the directions of law to those issues.[44]
  2. [130]
    The trial Judge expressly directed the jury as to the applicable law in respect of capacity under s 29 of the Code.  As the trial Judge properly observed, the broad time period expressed by the indictment meant that some of the acts relied upon in support of the counts were alleged to have been committed by the appellant at a time when he was not yet 14 years of age.
  3. [131]
    Whilst the trial Judge did not individually explain to the jury how the capacity to know he ought not to do the act might apply to each particular count, there was no requirement to do so, having regard to the issues in dispute at trial.
  4. [132]
    The defence case was not that penetrative acts had taken place at a time when the appellant did not have capacity to know that that act was wrong according to the ordinary principles of reasonable people.  The defence case was that no penetrative act had occurred whatsoever.
  5. [133]
    Further, the evidence at trial did not raise, for the jury’s consideration, any issue that the penetrative acts constituting each count of rape were consensual or that the appellant had a mistaken belief as to consent.
  6. [134]
    The complainant’s evidence was that on no occasion of penetration was she consenting to that act.  She also gave evidence that from the very first act of penetration she was told by the appellant that it was their secret and was threatened if she told anyone about it.  The complainant also gave evidence, on the occasion of penetration under the laundry area, that when her mother came into the laundry the appellant desisted until the mother had left the laundry area.  That evidence was entirely consistent with the appellant knowing that any acts of penetration of the complainant’s vagina were wrong.
  7. [135]
    On the evidence before the jury, it was open to the jury to conclude beyond reasonable doubt that, each time the appellant did a penetrative act the subject of a count, he knew that the act was wrong according to the ordinary principles of reasonable people.  The appellant’s actions in threatening the complainant if she told anyone, and in desisting whilst his mother was in the adjacent room, were inconsistent with the suggestion that he did not know what he was doing at the time he engaged in the acts the subject of each count.
  8. [136]
    Against that background, a direction to the jury that it was for the jury to decide, in relation to each count, whether the appellant was 14 when that act occurred and, if not, if he had capacity to know that he ought not do the act sufficiently apprised the jury of the issues in dispute.
  9. [137]
    The subsequent redirection, after the jury question, reinforced that the jury must be satisfied the prosecution had proved beyond reasonable doubt that, at the time the appellant did the act, he had the capacity to know the act was wrong according to the ordinary principles of reasonable people.
  10. [138]
    There was no miscarriage of justice in the manner in which the question of capacity was left for the jury’s determination.

Ground 2

  1. [139]
    The breadth of the dates relied upon for each count gave rise to a consideration as to consent by the complainant to acts which had occurred prior to the commencement of s 349(3) of the Code.  Accordingly, the trial Judge’s blanket direction, that a child under 12 cannot consent to penetration, was erroneous insofar as any of the penetrative acts took place prior to the commencement of that section.
  2. [140]
    However, that conclusion does not mean there has been a miscarriage of justice as a consequence of that blanket direction as to consent.
  3. [141]
    The defence case was conducted on the basis that there was no penetrative act whatsoever.  The complainant gave evidence that she did not consent to any penetrative acts.  Nothing in the cross examination of the complainant raised for consideration by the jury a mistaken belief on behalf of the appellant that the complainant was consenting to penetrative acts.
  4. [142]
    Further, the appellant’s assertions in the pretext call, that he never did anything unless it was consensual, was in the context of a complete denial of ever having engaged in penetrative acts.  Nothing in that call raised, as a possibility, penetrative acts having been committed by the appellant under a mistaken belief as to consent by the complainant.
  5. [143]
    On an independent assessment of the evidence as a whole, the prosecution proved beyond reasonable doubt that the penetrative acts the subject of the jury’s findings of guilt were each committed by the appellant, without the complainant’s consent.  Accordingly, the failure to direct in relation to the need for the jury to be satisfied beyond reasonable doubt that the complainant, in respect of penetrative acts which occurred prior to 5 January 2004, did not consent, did not occasion a miscarriage of justice.

Ground 3

  1. [144]
    Whilst Counts 13 and 14 were both particularised as having occurred in a shed when it was being used as the appellant’s bedroom, each relied on a different act of penetration.  Count 13 relied on penetration of the complainant’s mouth with the appellant’s penis, without her consent.  Count 14 relied on penetration of the complainant’s vagina with the appellant’s penis, without her consent.
  2. [145]
    The complainant’s evidence identified the specific occasion as when she was asked by her mother to request the appellant do something for their mother.  That occasion was further identified as being when the appellant asked the complainant “what was in it for him?” before engaging in each of the penetrative acts without her consent.
  3. [146]
    Against that background, the jury was apprised of a specific occasion, albeit one that occurred in the shed when it was being used as a bedroom.  There was no latent duplicity.  The evidence in respect of each of these counts did not reveal the commission of two or more possible offences.  There was a “common understanding” of the incident to which each count related.[45]

Sentence

  1. [147]
    The appellant relied on two specific errors as grounds for leave to appeal sentence.  First, an error in sentencing the appellant on the basis he was aged at least 17 years when he committed Counts 13 and 14.  Second, a failure to take into account whether the appellant believed the complainant was consenting to the act.
  2. [148]
    As to the first, there was no such error.  The evidence led at trial established that the appellant commenced school later as a consequence of his learning difficulties.  Further, the appellant stayed in the loft bedroom until Year 12 or just after Year 12, when he moved into the shed, the location of the commission of Counts 13 and 14.  That evidence established, on the balance of probabilities, that the appellant was at least aged 17 at the time of the commission of Counts 13 and 14.
  3. [149]
    As to the second, there also is no such error. The appellant denied ever having engaged in acts of penetration.  There was, therefore, no basis for a belief the complainant was consenting to any act of penetration.
  4. [150]
    However, the respondent properly concedes that, as the parties did not bring to the sentencing Judge’s attention the consequences of s 387 of the Youth Justice Act 1992 (Qld) (“the Act”), there was an error in the sentencing discretion.  Section 144 of the Act ought to have applied to all counts.  That concession requires a re-exercise of the sentencing discretion.
  5. [151]
    In re-exercising that discretion, regard is properly to be had to the serious and degrading nature of the appellant’s persistent engagement in penetrative acts against his sister from an early age; the appellant’s own youth when such acts were undertaken by him; the appellant’s lack of criminal history; his good character in the years between his offending and conviction; and his personal circumstances, such as depression, visual impairment and learning difficulties.
  6. [152]
    Regard must also be had to the sentencing principles under the Act.  The Court must have regard to the sentence that might have been imposed if sentenced as a child.  Further, the Court cannot order that the appellant serve a term of imprisonment longer than the period of detention that the Court could have imposed if he was sentenced as a child.
  7. [153]
    Balancing all of those matters and having regard to the aggravated seriousness of such offending over an extended period in respect of his own sister, the appellant, if sentenced as a child, is likely to have been ordered to serve a period of detention of at least six years.  His offending involved using manipulative behaviours towards a much younger sister to perpetrate multiple rapes over many years.
  8. [154]
    There is no reason, even allowing for the extended period that has elapsed between his offending and convictions and his personal circumstances, that he ought not to be ordered to serve a term of imprisonment of six years.  Such a sentence properly reflects the overall criminality of his conduct and all of the relevant circumstances that must be taken into account in sentencing this particular appellant.
  9. [155]
    A consideration of those factors, together with an obvious lack of remorse, supports a conclusion that there is no reason why the appellant should be afforded an earlier parole eligibility date than that provided for by the legislation.
  10. [156]
    As the appellant is being sentenced to the same effective sentence as imposed below, the appeal against sentence is properly to be dismissed.

Orders

  1. [157]
    I would order:
  1. (1)
    The appeal against conviction be dismissed.
  1. (2)
    Leave to appeal against sentence be granted.
  1. (3)
    The appeal against sentence be dismissed.

Footnotes

[1]  AB160/10.

[2]  AB160/25.

[3]  AB161/16-17.

[4]  AB163/27.

[5]  AB163/32.

[6]  AB164/20.

[7]  AB165/19.

[8]  AB166/25-26.

[9]  AB175/20-23.

[10]  AB176/29-30.

[11]  AB179/32.

[12]  AB182/5.

[13]  AB182/9-10.

[14]  AB102/36.

[15]  AB185/11.

[16]  AB185/15.

[17]  AB189/48.

[18]  AB194/6.

[19]  AB194/13-14.

[20]  AB194/21.

[21]  AB194/31.

[22]  AB195/7-10.

[23]  AB195/20-24.

[24]  AB196/5-6.

[25]  AB196/32.

[26]  AB217/36-38.

[27]  AB218/38.

[28]  AB219/44-45.

[29]  AB221/31.

[30]  AB238/31.

[31]  AB239/45.

[32]  AB244/33-34.

[33]  AB416.

[34]  AB417.

[35]  AB417-420.

[36]  AB309/24-25.

[37]  AB209/35.

[38]  AB318/44-45.

[39]  AB321/29-30.

[40]  AB324/33-34.

[41]  AB329/39-40.

[42]  AB106/27-28.

[43]  AB106/31-34.

[44] Pollock v The Queen (2010) 242 CLR 233 at [67]; R v Smith (aka Stella) [2021] QCA 139 at [50].

[45] R v RAX [2017] QCA 133 at [43].

Close

Editorial Notes

  • Published Case Name:

    R v BDO

  • Shortened Case Name:

    R v BDO

  • MNC:

    [2021] QCA 220

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Bowskill SJA, Boddice J

  • Date:

    15 Oct 2021

Appeal Status

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

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