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R v BDF[2022] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDF [2022] QCA 61

PARTIES:

R

v

BDF

(appellant)

FILE NO/S:

CA No 79 of 2020

DC No 71 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – [2020] QDC 37 (Kent QC DCJ)

DELIVERED ON:

29 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2021; Written Submissions received 4 June 2021 and 9 July 2021

JUDGES:

McMurdo and Mullins JJA and Mazza AJA

ORDERS:

  1. Application for leave to amend the notice of appeal refused.
  2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the trial judge found the appellant guilty of the maintaining offence, while having found the appellant was guilty, as principal, of only the indecent treatment offence and the appellant was guilty as a party to the three rapes – whether an unlawful sexual relationship can be maintained by an adult, if the relationship involves unlawful sexual acts where the defendant was not the persons who committed the act of rape – whether the deeming effect of s 7 of the Criminal Code (Qld) results in an unlawful sexual act of another being that of a defendant for the purposes of s 229B of the Code – whether an unlawful sexual relationship can be proved by continuity of sexual acts, including those acts for which an offender is liable as an enabler, aider or procurer, even if the actual sexual acts are committed by a different person on each occasion

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the primary issue at trial was whether the complainant’s evidence was credible and reliable and proved each offence beyond a reasonable doubt – where the appellant submits the complainant’s evidence was inconsistent and influenced by the appellant’s husband – where the issue on appeal is whether the trial judge was justified in acting on the complainant’s evidence – whether the verdicts of guilty were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the trial judge had taken into account the fact the appellant was previously acquitted of a number of the counts on the same indictment at an earlier trial and acknowledged that he had given the appellant the full benefit of previous acquittals – where the trial judge treated those acquittals as a matter which may reasonably cause the appellant to be given the benefit of the doubt in respect of the remaining counts – whether the convictions were inconsistent with prior acquittals

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the trial judge referred to Pell v The Queen [2019] VSCA 186 (Pell) and that decision was later overturned by the High Court – where the trial judge’s references to Pell were to statements in the majority judgment that adopted statements made in other authorities on the effect of discrepancies and inconsistencies in a witness’ evidence and referred to a Victorian standard direction about differences in account given by a complainant of a sexual offence – whether the trial judge erred in applying statements from the majority judgment in Pell in assessing the credit of the complainant

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the trial judge recorded the inconsistencies in the complainant’s evidence relied on by the appellant at trial – where the trial judge considered the approach relevant to fact-finding in cases of sexual offending against a child in determining whether the complainant was credible and reliable – where the trial judge identified nine specific factors that he had taken into account in accepting the complainant’s evidence – whether the trial gave inadequate reasons for finding the complainant credible despite the inconsistencies in her evidence

Criminal Code (Qld), s 7, s 229B, s 615C

Pickett v Western Australia (2020) 94 ALJR 629; [2020] HCA 20, considered

R v ABF; R v MDK [2021] QCA 240, cited

R v Barlow (1997) 188 CLR 1; [1997] HCA 19, cited

R v BDF [2019] QCA 14, related

R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, cited

R v FAR [2018] QCA 317, cited

R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269, cited

R v Miller [2021] QCA 126, cited

R v TR & FV; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 420; [2008] QCA 221, considered

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on her own behalf

C K Copley for the appellant for the written submissions on the question of law relating to count 11

J M Phillips for the respondent

SOLICITORS:

The appellant appeared on her own behalf

Martin Law for the appellant for the written submissions on the question of law relating to count 11

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    McMURDO JA:  I have seen a draft of the judgment of Mullins JA and Mazza AJA, in which each of the grounds of appeal, and the relevant evidence and arguments, are considered.  I agree with that judgment save for the question of the law relating to count 11, the charge of maintaining a sexual relationship with a child.
  2. [2]
    The appellant was convicted of that charge as well as each of counts 2, 3, 4, 5 and 6.  The trial judge convicted the appellant on counts 2, 3 and 4 on the prosecution case which relied “on the party provisions in that the defendant either did an act for the purposes of aiding; and/or aided; and/or counselled or procured the commission of the offence.”[1]  On count 5, the judge described the appellant as “the principal offender”, by which he meant that she had done the act or acts which constituted that offence.[2]  On count 6, it was not clear to the judge that he could conclude, to the required standard, that she was a “principal offender”.[3]  In any case, the offence charged by count 6 was not “an offence of a sexual nature” as defined in s 229B of the Criminal Code; count 6 charged an offence of deprivation of liberty under s 355 of the Code.
  3. [3]
    The trial judge reasoned as follows:

[116] The substantive counts being proven establishes all of the elements of Count 11, ie the defendant was an adult, that is, over 18 years; the complainant was at the time a child under 16 years; there was more than one unlawful sexual act over the period in the indictment; the relationship was maintained in the sense of carried on, kept up or continued; there was continuity or habituality.”

  1. [4]
    By s 229B(1), any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.  By 229B(2), an unlawful sexual relationship is “a relationship that involves more than 1 unlawful sexual act over any period.”  By s 229B(10), an “unlawful sexual act” is defined to mean “an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature,” and an offence of a sexual nature means an offence defined in certain provisions of the Code.
  2. [5]
    The offences charged by counts 2, 3 and 4, as well as the offence charged by count 5, were offences of a sexual nature as defined.  However the acts which constituted the offences charged by counts 2, 3 and 4 were not acts actually done by the appellant.
  3. [6]
    Section 229B is in relevant respects the same as the provision which was enacted in response to the judgment of the High Court in KBT v The Queen,[4] where the plurality[5] said that the offence created by the then s 229B(1) was constituted by “the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions.”[6]  In the following year, in R v S,[7] this Court suggested that s 229B be amended.  The Court[8] said:[9]

“If s. 229B(1) is to perform its function in most future prosecutions of this kind, legislative attention is needed to ensure that s. 229B(1A), or as it now is s. 229B(2), operates only as an evidentiary aid or exclusion and is not expressed in a form capable of being regarded as serving to define the offence or its actus reus under s. 229B(1).”

At that time, s 229B(2)[10] was as follows:

“A person shall not be convicted of the offence defined in subsection (1), unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child … on 3 or more occasions …”.

  1. [7]
    Consequently, in 2003 s 229B was re-enacted to (relevantly) its present terms.  The Explanatory Note[11] said:

“The redrafted section restores the intended focus of the offence on an unlawful sexual relationship or course of conduct.  The existing offence, as interpreted by the High Court, was criticised by the Queensland Court of Appeal in R v S [1999] 2 Qd R 89, as failing to meet the purpose for which it was enacted, that is, to make the “relationship” an offence, rather than the separate acts comprising it.

The requirement to prove three acts of a sexual nature has been removed, and instead the offence is established by proof of the relationship (that is, a course of conduct).  The jury are not required to be agreed as to the commission of any particular act of which evidence might be given, but rather, be satisfied on the totality of the evidence that the accused maintained a relationship (that is, engaged in a course of conduct) of a sexual nature with the child over the relevant period.

Subsection (3) provides that for an adult to be convicted of the offence, the jury must be satisfied beyond a reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.  This ensures that the offence is defined in terms of a relationship, not in terms of the separate acts comprising it.”

  1. [8]
    The re-enactment of s 229B was well explained by Fraser JA in R v CAZ[12] as follows:

“The legislative assumption is that children who are the victims of the particular offence created by s 229B might often be unable to recall sufficient details of the specific offences committed in the course of the relationship to enable the prosecution to supply those particulars that might be required in charges of specific sexual offences. That reflects the experience of the courts that many children give convincing evidence that they have been victims of regular sexual offending by an adult even though they are unable clearly to distinguish the details of one particular act of sexual misconduct from many other such acts …”

  1. [9]
    Since 2003 this Court has consistently held that what must be proved is not only the commission of the requisite number of offences but also that those offences occurred in the context of a sexual relationship maintained by the defendant: see R v DAT,[13] R v CAZ[14] and R v SCE.[15]  In CAZ, Fraser JA said that the offence is established not merely by proof of more than one unlawful sexual act and that there must be an “ongoing relationship of a sexual nature” with “continuity or habituality of sexual conduct”.[16]
  2. [10]
    The word “relationship” might be considered unsuitable in this context, because of its potential connotation of mutuality.  In this provision, however, it refers to a course of conduct by an adult in the persistent sexual abuse of a child.  The adult and the child might be related or connected in some other way.  But it is the relationship defined by the adult’s sexual conduct inflicted on the child which, for so long as that is maintained by the adult, constitutes the offence under s 229B.
  3. [11]
    At least apart from s 7 of the Code, the unlawful sexual acts would have to be acts actually done by the offender.  The respondent’s argument is that in this case, s 7 deemed the acts of the men who raped the complainant to have been acts of the appellant for the purposes of s 229B.
  4. [12]
    Section 7(1) of the Code provides as follows:

Principal offenders

  1. (1)
    When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—
  1. (a)
    every person who actually does the act or makes the omission which constitutes the offence;
  1. (b)
    every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
  1. (c)
    every person who aids another person in committing the offence;
  1. (d)
    any person who counsels or procures any other person to commit the offence.”
  1. [13]
    The equivalent provision in Western Australia was considered by the High Court in Pickett v Western Australia.[17]  In the joint judgment of Kiefel CJ, Bell, Keane and Gordon JJ it was noted that neither s 7 nor s 8 of the Criminal Code 1913 (WA)[18] distinguishes between principal and secondary offenders.  Rather, each section makes each of the persons within its scope a principal offender.[19]  Their Honours said that “s 7 expressly attributes to the persons mentioned in s 7 the acts or omissions that constitute the offence.”, and that “[i]n this regard, it proceeds from the assumption [expressed at the commencement of s 7] that an “offence is committed”.”[20]  After discussing the Court’s judgment in R v Barlow,[21] their Honours concluded as follows:[22]

On the authoritative exposition of the Code in Barlow, s 7, in referring to “an offence”, refers to the act or omission which constitutes the offence. In its operation, s 7 deems each category of person referred to in paras (a) to (d) to be a person who may be charged with the offence constituted by the act or omission.”

  1. [14]
    As already noted, the trial judge found the appellant guilty on counts 2, 3 and 4 by the operation of s 7(b), (c) and (d).  The acts which constituted those offences were attributed to the appellant so that she was deemed to be guilty of those offences and to be a person who may be charged with the offences constituted by those acts.
  2. [15]
    In this case, the identity of the persons who actually did the acts which constituted the offences charged by counts 2, 3 and 4 was unknown.  It was not the prosecution case that another person had committed an offence under s 229B and that the appellant was deemed to have taken part in committing that offence.  Section 7 operated in this case by deeming the appellant to be guilty of those three offences of rape.
  3. [16]
    As was said in Pickett, s 7 proceeds from the assumption that a certain offence is committed.  It deems a person within paragraphs (b), (c) or (d) to have taken part in committing that offence and to be guilty of that offence.  It enables such a person to be charged with actually committing that offence.  It attributes the act or omission which constitutes that offence to the person so as to make the person guilty of that offence and able to be charged with actually committing it.  By its terms, s 7 could not have the wider operation which is suggested by the respondent.  Section 7(1) makes a person who is within paragraphs (b), (c) or (d) responsible only for the act or the omission and the offence constituted by the act or the omission.
  4. [17]
    As I have discussed, under s 229B the doing of an act which constitutes an unlawful sexual act on more than one occasion is not the actus reus of the offence.  Under s 229B, the prosecution need not allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, the jury is not required to be satisfied of the particulars of any unlawful sexual act as it would be if the act were charged as a separate offence and all members of the jury are not required to be satisfied about the same unlawful sexual acts.[23]  An unlawful sexual act under s 229B means an act that constitutes or would constitute (if it were sufficiently particularised) an offence of a sexual nature.  However it is the proof of unlawful sexual acts by the accused person, rather than the proof of the accused’s criminal responsibility for those acts, which is the requirement of s 229B(3).
  5. [18]
    Consequently, the deeming provisions of s 7 did not extend to attribute to the appellant, for the charge by count 11, the acts which constituted the offences charged by counts 2, 3 and 4.  The prosecution failed to prove the matter required by s 229B(3), and the appellant should have been acquitted on count 11.  I would allow the appeal against the conviction on count 11, set aside the conviction and substitute an acquittal.  I would order that the appeal otherwise be dismissed.
  1. [19]
    MULLINS JA AND MAZZA AJA:  The appellant was tried by the learned trial judge sitting in the District Court without a jury in respect of six counts and was convicted on 11 March 2020 of all six counts: R v BDF [2020] QDC 37 (the reasons).  There were three counts of rape (counts 2-4), one count of indecent treatment of a child under 12, who is a lineal descendant, under care (count 5), one count of deprivation of liberty (count 6), and one count of maintaining a sexual relationship with a child (count 11).  Each of the counts (other than count 11) was particularised as occurring on a date unknown between 12 May 2014 and 13 May 2015 at Gold Coast.  Count 11 was particularised as being committed between 12 May 2014 and 13 May 2015 (the offending period).  The complainant for each of the counts is the appellant’s daughter who was aged nine to 10 years during the offending period.  Each of the counts is a domestic violence offence.  The offending period coincides with the period during which the appellant’s husband who is the father of the complainant was in prison.
  2. [20]
    The appellant appeared on her own behalf on the hearing of the appeal.  The notice of appeal lists six grounds.  Before dealing with those grounds, it is convenient to deal with a question of law relating to count 11 that arose during the hearing of the appeal.  The court requested further submissions on two related issues:
    1. (a)
      whether an unlawful sexual relationship can be maintained by an adult, if the relationship involves unlawful sexual acts where the principal offender is not the defendant; and
    2. (b)
      whether the deeming effect of s 7 of the Criminal Code (Qld) results in an unlawful sexual act of another being that of a defendant for the purposes of s 229B of the Code.
  3. [21]
    The respondent provided written submissions to the court on 4 June 2021 in response to this request.  Solicitors and counsel were retained for the appellant for the purpose of responding to this request.  The appellant’s written submissions were received by the court on 9 July 2021.  In those written submissions, the appellant applies for leave to amend the notice of appeal to add an additional ground of appeal that the trial judge erred in law in finding the appellant guilty of count 11, having found that the appellant was guilty, as principal, of only a single offence of a sexual nature (count 5).

Relevant provisions of the Code

  1. [22]
    Section 7 of the Code identifies which persons may be charged with actually committing the offence as a principal offender.  Subsections (1) and (2) of s 7 provide:

“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

  1. (a)
    every person who actually does the act or makes the omission which constitutes the offence;
  1. (b)
    every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
  1. (c)
    every person who aids another person in committing the offence;
  1. (d)
    any person who counsels or procures any other person to commit the offence
  1. (2)
    Under subsection (1)(d) the person may be charged either with committing the offence or with counselling or procuring its commission.”
  1. [23]
    The relevant provisions of s 229B of the Code were in the following terms during the period covered by count 11:

“(1) Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.

Maximum penalty—life imprisonment.

  1. (2)
    An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.
  1. (3)
    For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.

  1. (10)
    In this section—

offence of a sexual nature means an offence defined in section 208, 210 (other than section 210(1)(e) or (f)), 215, 222, 349, 350 or 352.

unlawful sexual act means an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature.”

Context for the question of law

  1. [24]
    To give context to the question of law, it is relevant to refer to the findings of the trial judge on the basis of the appellant’s liability for each of the counts (at [115]-[116] of the reasons):

“[115] Overall, therefore, in the way I have outlined, my conclusion is that I accept the evidence of the complainant as to the elements of the offences to the required standard, namely beyond reasonable doubt and therefore the defendant is found guilty of the offences as per the particulars of the offences on the indictment. For counts 2, 3 and 4 the prosecution relies on the party provisions in that the defendant either did an act for the purposes of aiding; and/or aided; and/or counselled or procured the commission of the offence. In each case the particulars are made out on the complainant’s evidence, which I accept. For count 5 she was the principal offender. For count 6 she is said to have been a principal offender or a party under s 7(1) (c) or (d). I find that she was a party to this offence, on each of the bases alleged, but it is not clear to me that I could conclude she was a principal offender to the required standard.

[116] The substantive counts being proven establishes all of the elements of Count 11, i.e. the defendant was an adult, that is, over 18 years; the complainant was at the time a child under 16 years; there was more than one unlawful sexual act over the period in the indictment; the relationship was maintained in the sense of carried on, kept up or continued; there was continuity or habituality.”

  1. [25]
    The particulars of count 11 that were ultimately provided by the prosecution at the trial were:

“The [appellant] carried on an unlawful sexual relationship with [the complainant].  This relationship consisted of the defendant:

  • Exposing [the complainant] to indecent acts; and/or
  • Enabling, aiding or procuring other persons to commit sexual acts (including penetrative acts) against [the complainant] and/or;
  • Licking the vagina of [the complainant].”
  1. [26]
    The second particular covers counts 2-4 and the third particular relates to count 5.
  2. [27]
    For the purpose of addressing the question of law, it is sufficient to refer to the trial judge’s summary of the complainant’s evidence in her s 93A interview on 10 August 2016 in which she described the events that resulted in counts 2-5:

[6] The complainant’s first broad description was that at night time, her mother came in with another person, dressed her up in weird clothes and held her down while she was raped. She said that the first time this activity occurred (count 2), the complainant went into the garage where she saw two males with her mother. One was a tall man with brown hair, and the other was shorter and skinny. They looked drunk.

[9] The complainant said that her mother told her to go back to her room. The people did not stop what they were doing. She went back to her room and went to sleep. This was at about 11.30pm. She said that she’d woken some time later when it was apparently around sunrise. Her mother was holding her hands while the tall man was on top of her having sex with her. She was told to drink something and whatever she drank, which tasted unique, made her feel woozy and go back to sleep. Her mother gave it to her from a glass. She described the sexual activity as the man’s front private part going in and out of her private part. It hurt. She said her mother was holding her back. She had no clothes on when this was happening.

[11] She then described the second time as occurring in the same way, and her mother doing the same thing, but she was not given a drink on this occasion (Count 3). It was someone different taking part, not the tall man. He had a dark, deep voice.

[12] The next time it occurred, she described waking up in her bed with a “playboy outfit” on which was black and white in colour. She was in her bedroom. She said the people present had things like whips. She did not know how her clothes were changed. She said the man was over the top of her with his private part in her mouth (Count 4). Her mother was licking the complainant’s vagina at the time (count 5). The complainant felt like she was choking.”  (Footnotes omitted.)

  1. [28]
    The trial judge did not make any specific finding in the reasons about any sexual conduct other than the conduct which was the subject of each of counts 2-5.
  2. [29]
    The gravamen of an offence against s 229B is the maintaining by the offender of an unlawful relationship of a sexual nature with the relevant complainant which requires the proof of some degree of habituality or continuity sufficient to justify the inference that the offender maintained a sexual relationship with the child, in addition to proof of the requisite number of offences of a sexual nature during the relationship: R v CAZ [2012] 1 Qd R 440 at [46].
  3. [30]
    R v ABF; R v MDK [2021] QCA 240 is an example of an offence against s 229B being prosecuted against the mother of a child and her male partner jointly, where the female appellant’s liability for the offence was based on paragraphs (b) and (c) of s 7(1) of the Code.  Apart from the one count of maintaining, both appellants had also been charged jointly with two counts of indecent treatment and four counts of rape against the same child complainant.  They were both convicted after trial of these offences.  (The male appellant was also convicted of an additional two counts of indecent treatment and one count of rape against the same complainant.)  During the course of the trial, the prosecution had abandoned seeking to prove the female appellant was a principal offender under s 7(1)(a) of the Code in relation to the maintaining offence and the other offences and the trial judge summed up accordingly (at [60]).  It was not an issue raised in that appeal as to whether the female appellant could be liable as a party for the maintaining offence.  No difficulty arose with an offence against s 229B where the female appellant’s liability was as a party to the male appellant’s maintaining the unlawful sexual relationship with her child where the particularised unlawful sexual acts that were charged as separate counts against them both jointly were committed by the male appellant for which the female appellant was also liable as a party.
  4. [31]
    The submissions of both the appellant and the respondent relied on observations made by Mackenzie AJA about the offence of maintaining a sexual relationship with a child that was committed by parents against their daughter in R v TR & FV; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 420.  The offenders TR and FV were the mother and father respectively of the complainant against whom a series of sexual offences were committed when she was aged between 12 and 13 years.  Each of TR and FV were charged in counts 1 and 2 respectively with maintaining an unlawful relationship of a sexual nature with a girl under 16.  Counts 3 and 4 charged them jointly with knowingly participating in the provision of prostitution by their daughter and procuring her to engage in prostitution.  Count 5 charged TR and FV jointly with indecent treatment of a child under 16 who was their lineal descendant and in their care.  Both TR and FV were charged jointly with taking indecent visual images of a child under 16 who was their lineal descendant in their care (counts 6-32).  Counts 33-42 were brought against both TR and FV for exposing (on a website) obscene pictures of a child under 16.  TR was charged separately with indecent treatment of a child under 16 who was her lineal descendant and in her care (count 43).  There were five counts of rape against TR based on photographs that showed the complainant performing sex acts with an unidentified male (counts 44-45), the use of a sex aid by TR to penetrate her (counts 46-47) and TR holding the complainant’s leg while she used the sex aid on herself (count 48).  Counts 49-51 charged TR with indecent dealing based on photographs of the complainant.  Counts 52-63 were brought against TR alone for taking indecent photographs of a girl under 16 who was her lineal descendant and in her care.
  5. [32]
    TR had carried on a prostitution service and sexually explicit images of TR and the complainant were on a website that advertised the prostitution service.  FV admitted that he had taken digital photographs that found their way onto the website.  A diary was found during the investigation which recorded 28 bookings for the complainant.  There were four men named in the statement of facts, one of whom, D, had sexual intercourse with the complainant and other sexual conduct with her over a period of about four months and TR was present with the complainant on each occasion that D arrived.  The offenders pleaded guilty to all charges.  Before the Court of Appeal, the Attorney-General conceded that not only the offences under s 210(1)(f) of the Code (counts 6-32 and 52-63), but those under s 228 (counts 33-42), did not involve an “act of a sexual nature” and therefore were not offences that could be relied on to prove the maintaining offence.  Mackenzie AJA stated at [33]-[34]:

[33] Because of the unusual nature of the case some brief reference to the legislative history of s 229B is appropriate. The part of the second reading speech for the Bill which inserted s 229B (the Criminal Code, Evidence Act and Other Acts Amendment Bill 1988 (Qld)) is in Hansard Vol 311 at p 3256. The creation of the offence was to address community concern that numerous cases had arisen where it was abundantly clear that a consistent course of sexual interference has been undertaken in respect of a particular child who, although unable to recall with the precision of an adult, all the surrounding circumstances of the events, nonetheless could give clear, cogent and compelling evidence as to the identity of the perpetrator and the acts that were committed upon him or her on many occasions. It was conceded that the lack of definition of the provision may cause concerns to some people, and that it was a novel drafting approach.

[34] Two observations may be made in passing. The first is that it is fairly plain that the concern being addressed was the kind of situation where an adult preyed sexually on a child and committed sexual acts for personal gratification on the child in a repetitive way. That is not to say that cases that do not fall precisely into that category may not be within the meaning of the provision, but it is a feature that makes a case like the present one difficult to fit within the considerable and wide spectrum of cases at appellate level relating to the offence, and even more so, into the limited spectrum of cases which have some element in common with this case. The second is that the requirements of proof of the offence in the original section have been significantly reduced by subsequent amendments.”

  1. [33]
    The prosecution case presented before the sentencing judge against TR and FV on the maintaining counts relied on uncharged acts in relation to the prostitution of the child that were supported by the complainant’s evidence that she was paid to have sexual intercourse with more than 10, and probably more than 20, men and the diary for the business showed 28 bookings for the complainant.  It is recorded (at [32]) that counsel for the Attorney-General during the hearing before the Court of Appeal submitted  that TR and FV repeatedly unlawfully procured the complainant to engage in indecent acts with numerous men and conceded that was a “curious” application of s 229B.  Mackenzie AJA observed at [40]:

“A consequence of a plea of guilty being entered by each respondent to an offence of maintaining was that it was not analytically questioned when the outer limits of that offence are reached in a case where the maintaining does not involve acts done by the offender himself or herself. It is orthodox enough as a basis of liability that both respondents were involved as parties in respect of the indecent acts performed on and by the girl when the photographs were taken in setting up the advertising phase of the enterprise. It is also clear from what has been said above that TR had a more direct involvement in the acts of prostitution of the girl than FV did. Abhorrent as FV’s conduct is, there is minimal evidence of his involvement by way of procuring the girl to perform specific indecent acts with individual clients, or of encouraging, counselling or procuring D to maintain an unlawful sexual relationship with her. But he knew that she was being prostituted.”

  1. [34]
    Mackenzie AJA noted (at [42]) that TR’s offending against s 229B had two aspects of procuring the complainant to perform indecent acts and as a party to an offence of maintaining by D.
  2. [35]
    The respondent therefore relies on the statement by Mackenzie AJA in TR & FV as supporting the conclusion that the maintaining offence can be proved by reliance on the liability of the offender as a party to the sexual acts committed by various persons against the complainant.  It does not appear to have been an issue in TR & FV as to the means by which the prosecution had proved the element of the offence of s 229B that TR had maintained an unlawful sexual relationship with the complainant.
  3. [36]
    The analysis of s 7 and s 8 of the Criminal Code (WA) in Pickett v Western Australia (2020) 94 ALJR 629 also assists in the consideration of the question of law raised in this appeal.  The provisions of the Code (WA) considered in Pickett mirror the corresponding provisions of the Code.
  4. [37]
    The appellants in Pickett were convicted of murder which was committed when they and three others as a group attacked the victim who died from a stab wound to his chest.  One of the members of the group, PM, was under the age of 14 years, but over the age of 10 years, and pursuant to s 29 of the Code (WA) could not be criminally responsible for his acts in killing the victim, unless it was proved by the prosecution that, at the time of the killing he had the capacity to know that he ought not to do the act.  It was common ground that the prosecution adduced no evidence at trial to establish PM’s capacity beyond reasonable doubt.  On the basis it was a reasonable possibility that PM did the act which killed the victim, the appellants argued that, as PM was not liable for punishment for any offence by virtue of s 29, no offence was committed by PM.  The appellants then argued that neither s 7 nor s 8 of the Code (WA) could apply in those circumstances to the appellants and therefore no offence was committed by them.  The argument was based on the definitions of “criminally responsible” in s 1(1) and “offence” in s 2 of the Code (WA).
  5. [38]
    The appeal in Pickett was unsuccessful.  The joint judgment of Kiefel CJ and Bell, Keane and Gordon JJ explained the operation of s 7 and s 8 of the Code (WA) at [40]:

“Even without the instruction afforded by this Court’s exposition of ss 7 and 8 in Barlow, it can be seen that the appellants’ argument departs from the terms of the Code in its suggestion that ss 7 and 8 have no operation unless liability to punishment of a ‘principal offender’ is established. Neither s 7 nor s 8, by its terms, distinguishes between principal and secondary offenders. Rather, each section makes each of the persons within its scope a principal offender. Section 7 is explicit in this regard; and there is no reason to regard s 8 as operating upon a different basis. While it is, no doubt, convenient to speak of a person who actually does an act or makes an omission which constitutes an offence as ‘the principal offender’, the use of that short-hand for the purposes of discussion should not be allowed to obscure the point that s 7 expressly attributes to the persons mentioned in s 7 the acts or omissions that constitute the offence. In this regard, it proceeds from the assumption that an ‘offence is committed’.”

  1. [39]
    The majority judgment of Brennan CJ and Dawson and Toohey JJ in R v Barlow (1997) 188 CLR 1 dealt with the operation of the party provisions of the Code by reference to the meaning of “offence” in s 2 of the Code.  They explained at 9:

“Section 2 of the Code makes it clear that ‘offence’ is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment.  Section 7(a) confirms that ‘offence’ is used to denote the element of conduct in that sense.  By the ordinary rules of interpretation, the term must bear the same meaning in pars (b), (c) and (d) of s 7 as it bears in par (a).”

  1. [40]
    The joint judgment in Pickett applied Barlow to hold (at [57]) that it was the stabbing that was the “offence” that was committed, so as to engage the operation of s 7 and s 8 of the Code (WA), and then stated (at [58]) that “an offence within the meaning of ss 7 and 8 may be committed even though the person who did the act or made the omission that constituted the offence is not criminally responsible for the offence by reason of the application of Ch V of the Code”.  That had the result in Pickett that the appellants who enabled or aided a person of immature age to murder another person were not relieved of criminal responsibility for their participation in the murder.  The joint judgment concluded (at [67]):

“Accordingly, paras (b) and (c) of s 7 apply to an enabler or aider of another person to do an act or make an omission that is the element of conduct of an offence under the Code, whether or not that other person is criminally responsible for the act or omission.”

  1. [41]
    In a separate judgment in Pickett, Nettle J agreed (at [110]-[112]) with the joint judgment’s interpretation of “offence” in s 7 of the Code (WA) and that the appeals should be dismissed.
  2. [42]
    Mr C K Copley of counsel submitted on the appellant’s behalf on the question of law to the effect that, in relation to each of counts 2-4, the appellant’s liability was for her accessorial acts (such as holding down the appellant while she was raped by a man) and not the act of rape.  That does not reflect a proper application of Barlow or Pickett that the offender who is liable as an enabler, aider or procurer of the offence has committed the act (in this case rape) which constituted the offence.
  3. [43]
    The trial judge gave himself the standard direction on the elements of the offence of maintaining that had to be proved by the prosecution to establish guilt of count 11 beyond reasonable doubt.  The direction was to the effect that the prosecution must prove that the appellant “maintained an unlawful relationship of a sexual nature” with the complainant who at the time was a child under the age of 16 years.  The direction included the following:

“3. An unlawful sexual relationship is a relationship that involves more than one unlawful sexual act over any period.  ‘Unlawful sexual act’ means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law.

4. Maintained carries its ordinary meaning.  That is, carried on, kept up or continued.  It must be proved that there was an ongoing relationship of a sexual nature between the defendant and the complainant.  There must be some continuity or habituality of sexual conduct, not just isolated incidents.

5. I must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sex acts existed.

If satisfied beyond reasonable doubt of the guilt of the defendant in relation to any of counts, the relevant sexual act or acts will then be used in my consideration of the count of maintaining.”

  1. [44]
    The direction the trial judge gave himself on the requirement for separate consideration of charges was also relevant to count 11:

“I have not taken the complainant’s evidence on the individual charged acts either as evidence of a sexual interest in her by the defendant, or otherwise as circumstantial evidence supporting other counts. To the extent that they are relevant and cross-admissible, however, they are evidence of relationship evidence, as well as going to proof of the maintaining count. That is, evidence of other conduct which has taken place between the defendant and the complainant, which the prosecution says is necessary to explain what occurred in the incidents which are the subject of the alleged offences.”

  1. [45]
    Section 7 of the Code was relevant in the appellant’s trial in respect of the offence of maintaining in determining whether the appellant committed the unlawful sexual acts charged as counts 2-4, even though the actual sexual act the subject of each count was committed by an unknown and different man.  That is because s 7 of the Code applies to the definition of “unlawful sexual act” in s 229B(10) of the Code in that it is an act that constitutes an offence of a sexual nature as defined in the specified sections of the Code and “offence” has the meaning given to it in s 2 of the Code.  It is an offence for the purpose of the definition of “unlawful sexual act”, even if the liability for the sexual act is under s 7(1)(b), (c) or (d).  Section 7 of the Code was not relevant, however, in proving against the appellant the element of the offence of maintaining which is expressed in terms that the unlawful sexual relationship is of some continuity or habituality of sexual conduct and does not just comprise isolated incidents.  For the purpose of proving this element, the prosecution relied on the unlawful sexual act committed by the appellant that was the subject of count 5, in addition to her involvement in the sexual conduct committed by the three unknown and different men which also comprised unlawful sexual acts committed by her within the meaning of s 229B(10) of the Code.
  2. [46]
    For the purpose of s 229B of the Code, the unlawful sexual relationship can be proved by the continuity of sexual acts that include those for which the offender is liable as an enabler, an aider or procurer pursuant to paragraphs (b), (c) or (d) of s 7(1) of the Code, even if the actual sexual act is committed by a different person on each occasion, as was the case for each of counts 2-4.
  3. [47]
    The question of law on which the parties made further submissions can be answered in terms that an unlawful sexual relationship can be maintained by an adult, even if the unlawful sexual acts on which the offence of maintaining is based includes the unlawful sexual act or acts of other persons for which the liability of the adult arises from the application of paragraphs (b), (c) or (d) of s 7(1) of the Code, as the deeming effect of s 7(1) of the Code results in the unlawful sexual act or acts of the other person being that of the adult for the purpose of s 229B of the Code.
  4. [48]
    There is therefore no point in granting leave to the appellant to amend the notice of appeal to reflect a ground based on this question of law, as the appellant cannot succeed on this ground.

Grounds of appeal

  1. [49]
    The grounds of appeal set out in the notice of appeal are:
  1. The verdicts of guilty were unreasonable.
  2. The convictions were inconsistent with prior acquittals.
  3. The trial judge erred in applying an appellate test exemplified in Pell v The Queen [2019] VSCA 186 to the fact-finding exercise involved in assessing the credit of the complainant.
  4. The trial judge made a factual error in failing to appreciate the full extent of the inconsistencies in the complainant’s evidence.
  5. Alternatively, the trial judge erred by giving inadequate reasons for finding the complainant credible despite the inconsistencies.
  6. The trial judge made a factual error in finding that the complainant watched the garage incident (which preceded count 2) for five minutes.
  1. [50]
    The appellant did not lodge written submissions in the usual form in respect of these grounds, but sent the registry a hand written document which largely recited the grounds set out in the notice of appeal and asserted an additional ground that the trial judge was unable to conduct a fair trial based on the evidence, as his attitude towards the appellant was affected negatively due to an incident on the first day of the trial.  The appellant’s oral submissions at the hearing of the appeal added little of relevance to the statement of the six grounds in the notice of the appeal.  In relation to the additional ground, the appeal record reveals that the appellant was referring to the trial judge’s issuing a warrant for her arrest when she failed to appear for an hour after the time the trial was due to commence.  When she appeared soon after the warrant was issued, the warrant was vacated and the trial proceeded.  After lunch on the first day, the trial judge noted that the appellant had seemed to be asleep before the adjournment for lunch and the trial judge expressed concern about the appellant’s participation in the trial.  This suggests that the trial judge was responding in an orthodox way to a defendant who was late for the first day of the trial and appeared to be nodding off during the playing of recorded evidence in the course of the trial.  Apart from the appellant’s explaining at the hearing of the appeal that she had self-medicated on the first day of the trial (which was the explanation her trial counsel had given to the trial judge), there was no development of this additional ground of appeal in submissions to support an allegation of bias (whether actual or apprehended).  There is therefore no point in the appellant being given leave to add an additional ground of appeal based on the allegation of bias as a result of the events that occurred on the first day of the trial which attracted a response from the trial judge that was unremarkable (and appropriate) in the circumstances.
  2. [51]
    To understand some of the grounds of appeal, it is necessary to refer briefly to the procedural history of the charges.  The indictment contained 11 counts.  When arraigned at the commencement of the first trial in February 2018, the appellant pleaded guilty to count 1 (indecent treatment of a child under 12 who is a lineal descendent, under care) on the advice of her then lawyers.  The particulars of count 1 (which was referred to as the garage incident) were that the complainant walked into the garage and saw the appellant having sexual intercourse with two men in the garage.  The complainant’s evidence was to the effect that the garage incident took place on the evening before the commission of count 2.
  3. [52]
    At the first trial of counts 2-11 the jury returned verdicts of guilty on counts 2-6 and 11 and verdicts of not guilty on counts 7-10.  The appellant appealed and the respondent conceded that certain grounds in that notice of appeal had been established and that there must be a retrial of counts 2-6 and 11: R v BDF [2019] QCA 14.  Prior to the commencement of the second trial, the appellant’s plea of guilty to count 1 was set aside in a pre-trial ruling, as it was due to incorrect legal advice given to the appellant by her lawyers and would give rise to a miscarriage of justice, if the plea were not set aside: R v BDF [2019] QDCPR 44.  The prosecution entered a nolle prosequi in respect of count 1 on the first day of the second trial.  In the same pre-trial ruling, a no jury order was made, as for the appellant to receive a fair trial, it was essential that evidence of the counts on which the appellant was acquitted in the first trial was also placed before the tribunal of fact, so that the tribunal might properly assess the credit and reliability of the complainant and a judge was far better placed to analyse the effects of the acquittals on counts 7-10 on a consideration of the complainant’s evidence.
  4. [53]
    The reference to “prior acquittals” is therefore a reference to the verdicts of not guilty for counts 7-10 in the first trial.

Summary of the relevant evidence

  1. [54]
    The prosecution and the appellant admitted at the trial enrolment dates for the complainant at various schools.  On 28 January 2014 the complainant commenced at a primary school which she continued to attend for most of the time her father was in prison until she changed to another primary school on 29 April 2015.
  2. [55]
    Preliminary complaint evidence was given by psychologist Ms Fleming who provided counselling to the complainant in five sessions between May and December 2016.  On the second occasion on 25 July 2016, the complainant struggled to articulate verbally experiences whilst residing with her mother and instead wrote down on a piece of paper:

“When I was in bed Mum used to come in with her friends and try to touch me inaproperly (sic).”

  1. [56]
    That note was tendered in the trial as exhibit 6.
  2. [57]
    In cross-examination, Ms Fleming recalled that at some point the complainant identified that she would like safe contact with her mother.
  3. [58]
    The complainant’s first s 93A interview took place on 5 August 2016.  She was interviewed by a male police officer and it was apparent that she was uncomfortable talking to him as she said that she wanted “to speak to a girl”.  What she did say in that interview was as follows.  When her father was away, the appellant “liked to have people over all the time”.  Her sisters were not usually there.  The appellant used to come in with people and wake the complainant up “and do naughty things”.  The last time that it happened was a few days before her father got back.  The appellant came into her room with somebody and it was always someone different.  The appellant took off the complainant’s clothes and she was “naughty”.  The appellant dressed her up in weird clothes.  Her mother told her if anyone asked if anything happened, to say “no”.
  4. [59]
    A second s 93A interview took place on 10 August 2016 with a female police officer.  The complainant’s evidence from this interview included the following.  At night her mother used to come into her room with one person and she used to dress the complainant up “in weird clothes” and she used to hold her down and then the other person would rape her.  One night her mother was in the garage with two men, one of whom was tall and had brown hair and a scar on his right arm and the other of whom was shorter, skinny and had brown hair and she thought was called Colin and they looked like they were drunk.  It was after her father went to prison.  The complainant asked what they were doing, and her mother said “don’t worry”.  The complainant said that she should not be doing that “because it looked rude” and her mother told her to go to her room.  Her mother was against the table with her elbows on the bench and the first man was having sex with her from behind and the second man was on the other side of the table kissing her.  The complainant was in the garage for “only like five minutes”, before she went back to her room.  It was maybe 11.30 pm.
  5. [60]
    After going to sleep, the complainant woke up and her mother had the back of her hands (which she demonstrated to the police officer) and the first man was on top of her.  The complainant was not wearing anything, but when she had gone to sleep she had been wearing pyjamas.  Her mother was not wearing anything.  The complainant said to “stop it” and they said “drink this” which she did and she went back to sleep.  It was her mother who gave her the glass.  It was the front private part of her body that was being used for sex with the man’s private part.  While he was going in and out of her, her mother was holding her back.  He mother lifted up her head so that she could have the drink.  (This first time was the subject of count 2.)  When she woke up in the morning, she was back in her pyjamas and at first she thought that nothing happened, but the next night it happened again (or maybe it was the night after).  When she woke up, her body hurt.
  6. [61]
    The second time (which was the subject of count 3) was exactly the same as the first except the complainant was not given anything to drink.  Every time it was someone different.  When she woke up the second time, she was not wearing any clothes.  On the second time, the different man did the same thing to her as happened the first time.  It was “maybe like a week after” where she was wearing “weird clothes” like “a playboy outfit” with bunny ears.  It looked like a suit with frills on it.  It was black and white.  They had things like whips.  It was a different man each time, but her mother was there every time.  The complainant woke up with those clothes on lying in the middle of her bed.  The man had his private part in her mouth (which was the subject of count 4) and her mother was down the other end and licking the complainant’s private part (which was the subject of count 5).  She closed her eyes and eventually it stopped.  The complainant felt like she was choking.  The complainant was tied up by rope to each corner of the bed and was still like that when she woke up the next day and her mother refused to untie her until that night when they had dinner (which was the subject of count 6).  The incidents never happened when her sister B was home.
  7. [62]
    In this second s 93A interview, the complainant gave evidence of the incidents that were the subject of counts 7-10 (which were the subject of acquittals at the first trial) as follows.  Her mother had a suitcase full of pornography DVDs and one time she made the complainant watch a DVD of girls doing weird things like her mother had done to her.  The complainant was asked whether anyone else was in the room when she watched the DVD and she said “No” and the police officer then said “Just you and mum?” and the complainant said “Yeah”.  The last time things happened was a couple of days before her father returned from prison.  It was basically the same except there were three men, but they did all the same things.  The complainant had gone to bed and when she woke up she was on her knees and arms like a baby crawling and she was in the garage.  She did not know how she got into the garage.  She was in the corner near the washing machine.  It was pitch dark, she could hear talking and they were touching her.  There were eight hands.  She tried to get away a couple of times but they said “stay where you are otherwise I’ll shoot you”, but she did not know if they had a gun.  Her mother was licking the same part of her body as she had previously and the other people were doing the same thing they did last time, using their private part to go inside the complainant’s private part (which were the subjects of counts 8 and 9).  The complainant woke up in the garage, the floor had paper over it, there was no one there and her hands were tied together (which was the subject of count 10).  She stayed there all night until dinner.  Her mother always got money from the people who did it, as the complainant heard her mother say “where’s my money?”.  When asked about any other times that it happened, the complainant responded “it was just them times”, but also said it was every second or third night when her father was in prison.  When some people moved into the house, the incidents that the complainant had described did not happen.
  8. [63]
    The complainant’s evidence commenced to be pre-recorded on 9 October 2017.  Her evidence during cross-examination on that day included the following.  When her father went to prison, she did not live mostly with her mother’s uncle (the uncle) and his wife.  She then said she could not remember, but she was pretty sure she lived more with her mother, but a bit with the uncle and his wife, because her mother did not like her seeing them.  The uncle and his wife would normally pick the complainant up from school and she stayed overnight at their place sometimes.  They took her to school most days and took her to Nippers on the weekend.  When the complainant was asked whether she saw whips in the wardrobe of her parent’s room, she responded that she remembered seeing DVDs.  The complainant found a suitcase of pornography DVDs in the cupboard.  The covers of the DVDs showed naked people having sex.  The complainant only looked at one, as she wanted to see what it was and then she put it back.  (It was not clear from this evidence whether the complainant watched the DVD or merely looked at the cover.)  The complainant was asked about telling the police that she was tied up in the garage and she said that she was tied up to a coffee table.  In further cross-examination after a break, the complainant was asked about the garage incident.  She was asked what her mother and the two men were doing and said “Well, she was on top of one of them, and the other one was just sitting next to them.”.  She was also asked how long she looked at her mother and the two men and she answered “[f]ive, 10 seconds, approximately”.  When questioned then on what happened in her bedroom after she had gone to sleep, the complainant said that she woke up and her mother and the tall man were there and she had a costume on that was black and she could feel lace all over it.  She had not put those clothes on.  She had pyjamas on when she went to bed.  The witness became upset and the cross-examination was adjourned.
  9. [64]
    The pre-recording of the complainant’s cross-examination resumed on 12 October 2017.  Her evidence on that day included the following.  When she woke up in the night after the garage incident, she was in her bed, her mother was in her bedroom and the man was on top of her and hurting her.  When she was asked by the appellant’s counsel to describe everything that happened at that time, the complainant responded that she could not remember everything that happened and it was “a really long time ago”.  She resumed describing the incident that when she woke up, she was in her bedroom and there was someone on top of her and “they were having sex” with her for a long time, because she “must have passed out or something” and then woke up the next day.  When she first woke up (when her mother and the man were in the bedroom), it was night and dark, but she could feel lace all over her.  When she woke up in the morning, she was in her pyjamas.  She did not change herself.  Nothing happened when C (who was a friend of her sister B) and C’s family were living in the house.  The second time it happened it was “basically the same”.  She had gone to sleep and when she woke up, someone was on top of her.  This second incident occurred in the complainant’s bedroom.  Before she had gone into her bedroom that night, she went to say goodnight to her mother and she was with someone in her room and the complainant just went to bed.  The third time was “also the same, like, basically every time”.  There was nothing really different.  On each occasion the man’s penis went into her vagina.  She could feel it.  When asked whether she was saying that every time it happened to her, it was exactly the same, the complainant responded “Well, not every detail was the same, but it was basically the same thing, yes”.  The complainant could not remember the exact spot where the DVD that she saw in the suitcase was.  She then stated “I don’t remember some things and I remember others.”.
  10. [65]
    It was put to the complainant that everything that she was saying that her mother did “apart from having sex in the garage that one time with one man” was not true.  The complainant disagreed with that proposition.  The complainant disagreed with the proposition that she had been told to tell these things about which she told the police and that they did not happen to her.
  11. [66]
    The complainant’s father gave evidence.  The youngest daughter of the marriage, K, was born in September 2012.  He confirmed that when he was living with the appellant, she had a couple of items of lingerie in the walk-in robe and a set of bunny ears that were also in the walk-in robe.  There were pornographic DVDs kept in a suitcase in the walk-in-robe.  In October 2011 DOCS placed the children in the care of the appellant’s parents and that continued until June or July 2013 when they were returned to the care of the appellant and him.  Not long after the complainant’s father was released from prison, he relocated with the complainant and the other daughters who came to live with him to a different region than where the family had been living whilst he was in prison.  (This had occurred by 13 July 2015, as the complainant’s enrolment at a school in the region to which they relocated commenced on that date.)  In June 2016 the appellant obtained an order allowing her to have access to K and the complainant’s father applied immediately to have that amended.  The complainant may have become aware of the order that allowed the appellant to access K.  The appellant’s husband did not telephone the appellant and say “You think you’ve won.  Look what we pull now.”.  He denied the proposition that he suggested to the complainant that it might help him to keep custody, if she alleged her mother had behaved inappropriately towards her.
  12. [67]
    The appellant’s mother’s evidence included the following.  She and her husband had the guardianship of three of the appellant’s children for about 19 months.  When the guardianship period ended, the children returned to their mother.  She thought the complainant’s father went to prison about 2013.  Whilst he was in custody, she saw the children frequently, because she usually picked them up most days to take them to school and picked them up after school.  They would do their homework and have something to eat at her place before she dropped them home.  On the weekends the complainant slept most times at the house of the uncle and his wife.  She could not recall whether the complainant spent more time at the appellant’s house than hers, and she did not think the complainant spent any more time at the appellant’s house than her sisters did.  In cross-examination, the appellant’s mother said she did not see any change in the complainant as “a bubbly little girl” after she changed schools on 29 April 2015.  In re-examination, the appellant’s mother accepted that, after the complainant changed schools, the appellant’s mother did not pick her up from school to take her to her home as regularly as she had done previously.
  13. [68]
    The uncle’s evidence included the following.  The complainant had commenced living with the uncle and his wife part time for most of the time when she was around five years old.  At the start when the complainant’s father went to prison in 2014, the complainant was living full time with the uncle and his wife, and then DOCS placed her back with the appellant after about eight months.  Prior to that she was off and on going back to the appellant, but then DOCS returned the custody of the appellant’s children to her.  The complainant still came back to the uncle’s house whenever the appellant allowed her to come back which was quite often.  The uncle and his wife took her to school, made her lunches, took her to Nippers and did the normal stuff.  Most of the nights after school she stayed with the uncle and his wife.  Her sisters were staying at the same time with the appellant’s parents who lived in the same complex as the uncle and his wife.  During the first eight months of the complainant’s father’s incarceration, the complainant did not stay very often at the appellant’s house.  It was whenever her mother decided she wanted the complainant back for a weekend and they would come back to the uncle’s house to go to school the next week.  When the uncle took the complainant back to her mother’s house on occasions, the complainant often did not want to go back and would cry.  The uncle’s evidence in cross-examination included that the complainant’s reluctance to return home was evident before her father went to prison, but it was not as much.
  14. [69]
    The complainant’s sister S participated in a s 93A interview on 1 September 2016.  At that stage she had not seen the complainant for about a year, because the complainant had moved to live with their father.  When S moved out of the house in 2015 where she had resided with the family, she was 13 years old.  When their father went to prison, S lived in the house with the appellant, the complainant and another two sisters.  Her younger sister B had her friend C and C’s parents and her two siblings stay in the garage for about two weeks.  A bed was set up in the garage.  (There was a joint admission at the trial that C’s mother stated that her family resided at the appellant’s residence for two periods which were between June and July 2014 and between September and December 2014.)  There were not any other adults who came to visit.  Her mother had a male friend T who lived around the corner.  Her mother used to go over to T’s house.  The complainant would have only been left at home by herself with their mother and K, if S and B were both at their friends.  She and B did not usually visit friends at the same time, so there was always one of them at home.  The complainant stayed with the uncle and his wife for most of the time, as she lived with them while their father was in prison.  The complainant would only come home once every week and not even every week.
  15. [70]
    S’s evidence was pre-recorded on 9 October 2017 when she was 15 years old.  Her cross-examination included the following.  After her father got out of prison, S had a party at the house which wrecked the house.  Her father came and took the house back over and took the complainant, B and K and moved away.  While her father was in prison, S stayed living at home except for a couple of nights when she stayed with friends or a couple of nights with her grandmother.  S was present holding her mother’s phone which was on speaker when her mother got a call from S’s father.  S heard him say “You think you’ve got this.  Well, watch what I pull now.”  S said that her father started going on about the complainant, but her mother grabbed the phone and hung up.
  16. [71]
    The complainant’s sister B participated in a s 93A interview on 19 September 2016.  After her father went to prison and they had some people come and live with them, her mother changed, she would go out at night, she would return home in the early hours of the morning and sometimes bring her friends.  A lot of the time she went to T’s and D’s.  They were two male friends.  There was one guy K who was “scary” who B did not like.  B was staying with her grandmother a lot on Monday, Wednesday and Friday and sometimes on Saturday.  Her grandmother would drive her to school.  When B stayed with her grandmother, the complainant stayed with the uncle and his wife or she was at home.  S stayed at home or at a friend’s place and sometimes was at their grandparents.  There were “a lot of people, just comin’ and going” who would turn up at any time at home.  Her mother was getting Xanax and Valium off D.  C and her family stayed with them in the home for a couple of months after B’s father went to prison.  They left for a month and then came back and lived for a few months until a couple of months before her father returned home.  Before her father went to prison, her parents were good for a long time until her mother “went crazy on her Xanax” and that’s when they went to live with her grandmother.  When they returned home, the appellant was good until their father went to prison.
  17. [72]
    B’s evidence was pre-recorded on 9 October 2017.  By then she was 14 years old.  She could not remember sending the messages that became exhibit 26 in the trial.
  18. [73]
    C participated in a s 93A interview.  When her family stayed at the appellant’s home, she slept in B’s room.  The complainant used to go to her grandmother’s home a lot of the time, but when the complainant came to the appellant’s home, the appellant would always yell at her.  The appellant used to have a lot of guys over and some nights she would have two or three guys over.  When the guys came over, the appellant would get dressed up in a short black skirt.  The second time C’s family stayed at the appellant’s home, a double bed was set up in the garage and C’s parents slept there.  The complainant would come back every second week for about five days or something and then go back to her grandmother’s place.  The complainant would sleep in her mother’s room.  C’s family left 11 days before Christmas after the appellant told them they had to go.  When the guys came over to see the appellant, they would be in her room for ages and then they would just leave and then other men would come through the house and into the appellant’s room.  Guys would come around the house every second or third night.  C’s cross-examination which was very short was pre-recorded on 9 October 2017 when she was 15 years old.
  19. [74]
    A transcript of the evidence given by the paediatrician at the first trial was tendered by agreement at the second trial.  The paediatrician had examined the complainant on 5 September 2016 and the effect of her evidence was that the damage to the complainant’s hymen was equivocal as to the question of blunt force trauma.
  20. [75]
    The respondent at the trial tendered bank statements from two accounts belonging to the appellant.  The statements for one account between 1 May 2014 and 31 May 2015 (exhibit 22) showed regular Australian Government Families and pension payments and a pattern of the moneys being withdrawn from the account upon receipt.  The other statements (exhibit 23) were for a credit card account that remained overdrawn at around $4,000 for the entire period the appellant’s husband was in prison.  (These exhibits had, in fact, little or no evidentiary value.)
  21. [76]
    The appellant did not give evidence at the trial, but did call two witnesses.  One witness was a school friend of S.  At one stage the witness received messages on Facebook Messenger that appeared to be from B.  The messages were sent after a wild party at the appellant’s home in June 2015 which was attended by the witness.  The screenshot of the messages were tendered as exhibit 26.  There were messages to the effect that B’s father had gone to court and the appellant was legally allowed to see B’s youngest sister and B asked the witness whether she had any photos or evidence of the appellant “smoking” with S or anyone, because “we really wanna set her up”.  The witness took “smoking” to be a reference to drugs.
  22. [77]
    The other witness called by the appellant was a Child Safety officer who interviewed the complainant for 30 minutes on 11 May 2015 and the complainant made no complaint to him about her mother.

Grounds 1, 4 and 6

  1. [78]
    The primary issue for the trial judge was whether the complainant’s evidence was credible and reliable and proved each of the offences beyond reasonable doubt.  The appellant’s contention at the trial in respect of the complainant’s credit (set out at [73] of the reasons) was that it was undermined by inherent improbabilities and the circumstances suggested a false complaint.  The appellant’s counsel at trial conceded that the complainant’s complaint was not part of a conspiracy involving the complainant’s father, as the message sent by B after the wild party at the family home could not be linked to the complainant’s father.  There was no challenge on behalf of the appellant at the trial to the complainant’s evidence (if accepted) being sufficient to establish the habituality of unlawful sexual acts to support count 11.  The question of the unreasonableness of the verdicts which is the subject of ground 1 is therefore primarily determined by whether the trial judge was justified in acting on the complainant’s evidence.  Grounds 4 and 6 are relevant to whether the trial judge should have acted on the complainant’s evidence.  It is therefore appropriate to address those grounds at the same time as addressing the unreasonable verdicts ground.
  2. [79]
    Pursuant to s 615C(2) of the Code, the provisions of chapter 67 of the Code concerning the determination of an appeal are applied to a trial by judge alone in the same way as they apply to a person tried by a judge sitting with a jury.  The approach of this Court on appeal to determining whether the trial judge’s verdicts of guilty were unreasonable is the approach reflected in authorities such as SKA v The Queen (2011) 243 CLR 400 at [11]-[14].  See also R v Miller [2021] QCA 126 at [11]-[18].
  3. [80]
    During oral submissions on the hearing of the appeal, the appellant asserted that the charges arose from her former husband’s desire for revenge as a result of her being unfaithful whilst he was in prison.  That theory had been explored in the cross-examination of witnesses at trial, but on the basis of minimal evidence in that regard (such as the text message from B to S’s friend that could not be connected to the appellant’s husband), the appellant’s trial counsel properly did not pursue that theory.  There is no evidentiary basis for pursuing it on the appeal.
  4. [81]
    The appellant also submitted that the complainant’s evidence was influenced by her former husband when there was the break between the commencement of the pre-recording of her cross-examination on 9 October 2017 and the resumption of the cross-examination on 12 October 2017.  On 12 October 2017, the complainant was specifically asked whether she had spoken to her father about her evidence either during the breaks that she had on 9 October 2017 or before she resumed giving evidence on 12 October 2017.  The complainant stated that she did not speak to her father (or B) about her evidence.  There is no evidentiary basis for the appellant to pursue her allegation on the appeal of her former husband’s influence on the appellant’s cross-examination.
  5. [82]
    The inconsistencies in the complainant’s evidence and the bizarre aspects of some of her evidence were the focus of the appellant’s trial counsel’s submissions to the trial judge.
  6. [83]
    One significant inconsistency was that in the second s 93A interview, the complainant said in respect of the first incident that when she woke during the night she was naked, having worn pyjamas to bed, but in the pre-recording of her cross-examination she said she woke up wearing a black lacy costume.  Her evidence on both occasions was when she woke up the next morning she was back in her pyjamas.  Her evidence of having the man on top of her having sexual intercourse with her and that her mother was present remained consistent.  That discrepancy about whether she was naked or wearing something with lace is a matter that required careful consideration.  Another inconsistency in relation to the first incident was that the complainant had recalled in the second s 93A interview that after the sexual intercourse her mother had given her something to drink and she went to sleep.  The complainant was not cross-examined on the fact that she had mentioned being given something to drink.  She never mentioned the drink when describing this incident in cross-examination, but did mention that she “must have passed out or something”, as the man was having sex with her for a long time, but she did not know what happened after that.  Although she did not recall the drink that she had mentioned in the s 93A interview, she did recall that something made her go to sleep.  This discrepancy is therefore not as significant as the other discrepancy in relation to the first incident.
  7. [84]
    That first incident was identified by the complainant as taking place after she had observed her mother having sexual intercourse in the garage with two men.  It was apparent from the cross-examination of the complainant that the appellant did not dispute that the complainant on one occasion had entered the garage when the appellant was having sexual intercourse with one man.  One of the areas of the complainant’s evidence where there were discrepancies was her description of what she saw in the garage incident and the length of time that she was in the garage before leaving.  In her second s 93A interview, the complainant described her mother as being against the table with her elbows on the bench and the first man having sex with her from behind and the second man on the other side of the table kissing her and that she was in the garage for “only like five minutes”.  Her description of the positions of her mother relative to the two men differed in her cross-examination, as she described her mother being on top of one of them and the other one sitting next to them and that she looked at them for five or 10 seconds approximately.  In both the s 93A interview and the cross-examination, the complainant also gave evidence of the conversation she had with her mother in the garage incident.  To view the scene, then comment to her mother and have her mother respond must have taken more than five or 10 seconds.  The trial judge dealt with this inconsistency in the positioning of the appellant and the men at [81] of the reasons, noting “this may be a stark inconsistency”, but “might also be an example of people changing positions during the sexual act which the complainant could have observed during the five minutes she says, on the first occasion, that she observed the scene”.  The trial judge has implicitly preferred the complainant’s original estimate that she was in the garage for “like five minutes” (and this finding is the subject of ground 6).  It was not unreasonable for the primary judge to proceed on the basis that the complainant’s observations occupied greater than five or 10 seconds and was more likely to be closer to five minutes, in view of the consistent content of the complainant’s evidence as to what occurred in her conversation with her mother during the garage incident.  The significance of the differences in the complainant’s evidence about the position of the mother and the two men is diminished in the circumstances where there was no challenge to that part of the complainant’s evidence that she entered the garage when the appellant was having sexual intercourse, even though it was in issue whether it was with one or two men.
  8. [85]
    The complainant did not mention the licking of her vagina by her mother that was the subject of count 5 or being tied by rope to each corner of the bed (which was the subject of count 6) during cross-examination, but she was not specifically asked about those aspects of the third incident.  The complainant also in her cross-examination did not expressly repeat her description of the incident that gave rise to count 4 where the rape was committed by the man putting his penis in her mouth.  She was also not cross-examined on that discrepancy.
  9. [86]
    The differences in the accounts given by the complainant of the incidents that resulted in counts 2-6 between the second s 93A interview and the cross-examination can be partly attributed to the age of the complainant at the time the incidents occurred and the delay of between two years five months and three years five months before the cross-examination took place.
  10. [87]
    Apart from the cross-examination of the complainant about the suitcases in her parents’ wardrobe and seeing DVDs, and being able to describe seeing naked people having sex on covers of the DVDs, her cross-examination did not otherwise cover the incident that was the subject of count 7 of watching a pornographic DVD.  There was also only the briefest cross-examination in respect of the incident that was the subject of counts 8-10.
  11. [88]
    There were many inconsistencies within the complainant’s evidence that were apparent at the trial and, less significantly, discrepancies between the complainant’s evidence and that of other witnesses (such as the extent to which she stayed overnight with the uncle and his wife whilst her father was in prison).  Many of these were referred to in the reasons, particularly in the trial judge’s summary of the appellant’s trial counsel’s address (at [73]-[84]) of the reasons).
  12. [89]
    Against the discrepancies and the inconsistencies that were identifiable in the complainant’s evidence, evidence from other witnesses provided support for the complainant’s description of the activities or things in the appellant’s home that provided the background for the offending described by the complainant.  This is particularly found in the evidence of B about the activities of the appellant while the appellant’s husband was in prison and the visits to the house of the appellant’s male friends and similar evidence from C.  The complainant’s father confirmed the presence of bunny ears in the house.  The complainant did not depart from the fundamental aspect of being raped during the three incidents in the presence of her mother that resulted in counts 2-4.  It is a compelling aspect of the complainant’s evidence that she was quite precise about seeing two men in the garage incident, but only one of those men was involved in the rape of her that followed the garage incident.  It was also a frank concession by the complainant during her second s 93A interview that when she woke up after the first incident, she at first thought nothing happened, but then it happened again the next night (or maybe the night after the next night).  In cross-examination, the complainant accepted that when she woke up after the first incident, she thought she had imagined it.
  13. [90]
    There was some exaggeration by the complainant in her evidence.  The prosecutor at the trial had properly conceded that the complainant’s assertion that she was raped by a different man every second or third night may possibly be an exaggeration.  As noted (at [85] of the reasons) by the trial judge, that was certainly an exaggeration in the context that the complainant did not live full time at the appellant’s house.  In addition, the complainant conceded that incidents of that type did not occur whilst C and her family lived in the appellant’s house (which was over months) or when B was at home.  It is also likely there was some exaggeration in the complainant’s evidence relating to count 6 that she was tied up for a whole day without any food.  For whatever length of time the complainant was tied up, it no doubt seemed to her at her age to be a long time.  It was not necessary for the trial judge to be satisfied that count 6 had been proved beyond reasonable doubt for him to accept her evidence that she was tied up for the whole day, as long as the trial judge was satisfied that she was restrained against her will for some period of time.  It was consistent with how the complainant described the third incident in her second s 93A interview that she was tied up.  As she described her mother licking her vagina (count 5) whilst the man inserted his penis into the complainant’s mouth (count 4), her mother was therefore not holding her hands, as she had done in the other two incidents that resulted in counts 2 and 3.  Count 7 was charged on the basis that the appellant wilfully exposed the complainant to an indecent film.
  14. [91]
    The acquittal on count 7 was explicable by the uncertainty in the evidence of the complainant as to whether she watched the pornographic DVD by herself or with her mother or even watched it at all.
  15. [92]
    The extent of the evidence in relation to the incident that was the subject of counts 8-10 was far less than for the other counts.  The acquittals on counts 8-10 can be rationalised with an acceptance of the complainant’s evidence relevant to counts 2-6 and 11 on the basis that the complainant was not as clear about her mother’s presence for these counts, she appeared less sure of some of the details that she provided of this incident, and the extreme exaggeration of this incident (reflected in recounting the presence of three men, the reference to a gun and that she was crawling like a baby).
  16. [93]
    Allowing for the trial judge’s advantage in viewing the s 93A interviews and the pre-recorded evidence of the complainant and the trial judge’s positive view about the complainant’s demeanour, the many inconsistencies within the complainant’s evidence (including the significant inconsistencies described above in respect of the complainant’s evidence about the first and third incidents), the much less significant discrepancies between the complainant’s evidence and the evidence of other witnesses on peripheral matters and the acquittals on counts 7-10 did not preclude the trial judge being satisfied beyond reasonable doubt of proof of each of the elements of counts 2-6 and 11.
  17. [94]
    On the basis of our assessment of the evidence before the trial judge (and particularly the clarity of the complainant’s account in the second s 93A interview), it was not unreasonable for the trial judge to reach verdicts of guilty in respect of counts 2-6 and 11.  There is not a significant possibility that an innocent person has been convicted of these counts.  Grounds 4 and 6 have been addressed in substance in dealing with ground 1.  The appellant does not succeed on any of these grounds.

Ground 2

  1. [95]
    The tribunal of fact in the first trial was a jury and the tribunal of fact in the second trial was the trial judge.  The appeal against the guilty verdicts in the second trial is not resolved merely by comparing the outcomes in the two trials for different counts.  The trial judge expressly acknowledged (at [91] of the reasons) that he had taken into account the fact the appellant was previously acquitted at the first trial of a number of the counts on the same indictment and in relation to which evidence was led by consent at the trial and in this context noted it was important “to give full weight to the fact of the acquittals”.  The trial judge noted that he was referred to R v FAR [2018] QCA 317 and particularly at [140].  The trial judge then stated (at [92] of the reasons):

“In this case, as in FAR, the evidence was placed before me without objection and for a tactical forensic benefit of the defendant. In the circumstances it is necessary to direct myself that I am bound to accept the verdict on acquittal as the only possible view of the evidence in relation to those charges. It is not open to me to accept a view of the facts inconsistent with that acquittal, and of course I was not urged to do so. As observed in FAR, the fact of the acquittals is an initial matter which may reasonably cause me to afford the defendant the benefit of the doubt in respect of the remaining counts, I take this into account and give the defendant the full benefit of those acquittals, and in no way do I proceed to reconsider the guilt of the defendant in relation to those earlier offences.”

  1. [96]
    The trial judge set out in the appendix to the reasons the direction that he gave himself modelled on the standard direction for separate consideration of the charges.  In that direction, the trial judge acknowledged again that he had given the appellant “the full benefit of previous acquittals on some other counts”.  The manner in which the trial judge gave the appellant the full benefit of the acquittals of counts 7-10 was to treat those acquittals as a matter which may reasonably cause the appellant to be given the benefit of the doubt in respect of the remaining counts.  This accorded with the suggested approach of Boddice J (with whom Philippides JA and Bond J agreed) in FAR at [144].  Giving that benefit of the doubt to the appellant in respect of the counts the subject of the second trial as a result of the acquittals in the first trial did not preclude the trial judge from being satisfied of the guilt of counts 2-6 and 11 in the second trial.  The reasonableness of that conclusion has been addressed in dealing with grounds 1, 4 and 6.  The appellant therefore cannot succeed on ground 2.

Ground 3

  1. [97]
    Ground 3 is based on the references made by the trial judge to the majority judgment in the Court of Appeal in Pell v The Queen [2019] VSCA 186 when that decision was overturned by the High Court in Pell v The Queen (2020) 268 CLR 123 which was published after the trial judge had reached his verdicts against the appellant.  This ground is particularly directed at the reliance by the trial judge on the majority judgment of the Court of Appeal in Pell in the fact-finding exercise involved in the trial judge’s assessment of the credit of the complainant.
  2. [98]
    The Court of Appeal judgment in Pell was referred to in [101]-[106] and [108]-[114] of the reasons.  The reference in [101] of the reasons is to the majority judgment’s adoption of the statement made by McHugh J in M v The Queen (1994) 181 CLR 487 at 534 where McHugh J observed, based on the everyday experience of the courts, that honest witnesses are frequently in error about the details of events.  McHugh J then referred to the type of case where accuracy of recollection was vital such as the account of a conversation in a fraud case or the description of a person where identity is the issue where “discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be”.  The trial judge then emphasised the conclusion of the quoted statement from McHugh J:

“But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”

  1. [99]
    The statement by McHugh J quoted at [101] of the reasons is orthodox and unexceptional and the fact that it was relied on by the trial judge (at [102] of the reasons) as relevant to, and supportive of, the view the trial judge had formed of the complainant’s overall credit worthiness is not diminished in any way by the fact that it was also relied on by the majority judgment in the Court of Appeal in Pell which was overturned by the decision of the High Court in Pell.
  2. [100]
    The victims of the alleged offending in Pell were two choir boys referred to as A and B.  As B had died before A made his first complaint, it was only A who gave evidence at the trial.  The majority in the Court of Appeal assessed A as a compellingly credible witness and despite evidence from witnesses described as “the opportunity witnesses” who gave largely unchallenged evidence of the applicant’s movements and the movements of other persons when the alleged offending was to have occurred, the majority concluded that the jury had not been compelled to entertain a doubt as to the applicant’s guilt.  The High Court in a unanimous judgment in Pell found (at [46]) that the majority judgment’s subjective assessment that A was a compellingly truthful witness drove their analysis of the consistency and cogency of his evidence and the capacity of the evidence of the opportunity witnesses to engender a reasonable doubt as to his allegations and that their analysis “failed to engage with whether, against this body of evidence, it was reasonably possible that A’s account was not correct, such that there was a reasonable doubt as to the applicant’s guilt”.  The High Court held (at [119]) in relation to four counts that the evidence of the opportunity witnesses required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt, even on the assumption that the jury assessed A’s evidence as credible and reliable.  The High Court held (at [127]) in relation to the fifth count that the unchallenged evidence of the applicant’s invariable practice of greeting congregants and the requirement that he always be accompanied when in the Cathedral were inconsistent with A’s evidence relevant to the fifth count and the jury, acting rationally, ought to have entertained a doubt as to the applicant’s guilt of the fifth count.  The reasons of the High Court for overturning the majority judgment of the Court of Appeal in Pell do not undermine the authority of the statement of McHugh J referred to at [101] of the reasons which is directed at the effect of discrepancies and inconsistencies in a witness’ evidence depending on the nature of the case.
  3. [101]
    The trial judge referred (at [103] of the reasons) to a passage in the majority judgment of the Court of Appeal in Pell that was quoting the primary judge’s direction to the jury that they needed to decide for themselves whether the inconsistencies in the complainant’s evidence relied on in the defence argument as undermining the complainant’s credibility were important to their assessment of the complainant’s credibility and the primary judge gave the jury a direction that was mandated by the relevant Victorian legislation.  As the trial judge observed (at [104] of the reasons), he was in no way bound by the relevant Victorian legislation, but the observations made in the relevant direction were consistent with the experience of the court and the observations in some authorities and they reflected “a somewhat common sense approach to the question of assessing evidence of this kind” which the trial judge recorded as being of some assistance, although not “binding or determinative of, the fact finding process” in the case against the appellant.  The direction was to the effect that when assessing the evidence, experience showed that people may not remember all the details of a sexual offence and may not describe a sexual offence in the same way each time and trauma may affect different people differently, including by affecting how they recall events.  The direction continued that it was common for there to be differences in accounts of a sexual offence in that people may describe a sexual offence differently at different times to different people or in different contexts and both truthful and untruthful accounts of a sexual offence may contain differences.
  4. [102]
    As the trial judge observed (at [104] of the reasons), the Victorian direction set out a common sense approach to assessing the evidence of a complainant in respect of sexual offences.  The fact that the direction was referred to in the majority judgment of the Court of Appeal in Pell did not preclude the trial judge from relying on it for the assistance the observations within the direction could provide to a fact-finding tribunal in assessing the reliability and credibility of the complainant who alleged sexual offending.
  5. [103]
    The passage that is quoted by the trial judge (at [105] of the reasons) from the majority judgment of the Court of Appeal in Pell quoted R v BJB [2005] NSWCCA 441 at [37] for the proposition that delay in complaint is not uncommon in cases where children are the alleged victims of sexually inappropriate conduct.  This is another instance of the trial judge’s reference to the majority judgment in the Court of Appeal in Pell for a proposition that is orthodox and unexceptional and not undermined by the overturning of that judgment by the High Court in Pell.
  6. [104]
    The trial judge then addressed, commencing at [107] of the reasons, the challenge to the complainant’s credit by reference to the topic of improbability of the appellant’s behaviour as a mother.  The trial judge again resorted (at [108]-[111] of the reasons) to observations that were made by the majority judgment in the Court of Appeal in Pell (at [99]-[102]) on the topic of improbability by reference to other authorities that were to the effect that sexual offending does sometimes take place in circumstances carrying a high risk of detection.  The trial judge set out (at [111] of the reasons) the passage at [102] of the majority judgment in the Court of Appeal in Pell that concluded from the authorities relied on that “the existence of a high level of risk did not, in and of itself, oblige the jury to have a reasonable doubt that the alleged offending too place”.  That proposition itself is supported by the authorities cited in the preceding [99]-[101] and as a general statement is unremarkable.  It was the application by the majority judgment in the Court of Appeal in Pell of that proposition to the evidence of the opportunity witnesses that resulted in the overturning of the decision by the High Court.  The trial judge considered the proposition in the circumstances of the case against the appellant and not the manner in which it was applied by the majority judgment in the Court of Appeal in Pell.  This is apparent from the features identified by the trial judge (at [113] of the reasons) for why the impact of the submissions of improbability were diluted in the appellant’s case.
  7. [105]
    The appellant fails on ground 3.

Ground 5

  1. [106]
    The trial judge summarised the evidence of the complainant at [2]-[29] of the reasons.  The trial judge also summarised the evidence of other witnesses, particularly where it was relevant to matters that were covered in the complainant’s evidence.  In summarising the address of the appellant’s counsel at the trial, the trial judge highlighted (at [73] of the reasons) that the focus of the appellant’s counsel’s address was whether the complainant was describing an actual event or an invention and that the circumstances suggested a false complaint and her account was “inherently improbable”, as the idea that a mother would do such things was improbable.  The trial judge recorded the inconsistencies in the complainant’s evidence relied on by the appellant at the trial and summarised the appellant’s trial counsel’s address (at [73]-[84] of the reasons).
  2. [107]
    The trial judge set out his primary conclusions in relation to the complainant’s evidence at [96]-[98] of the reasons.  The trial judge found (at [96]) that the complainant’s demeanour was compelling and that “[s]he seemed to be a young girl who … had been exposed to serious sexual offending which she did not fully understand at the time, but knew that it was wrong”.  The trial judge did not accept (at [97]) that there was any motive for the complainant to lie or any conspiracy by the complainant’s father or anyone else to set the appellant up.  The trial judge accepted (at [98]) the prosecutor’s submissions that there was “no sensible possibility of either a fantasy on behalf of the complainant or a deliberate lie”, and noted that he had taken into account the following factors:

“(a) her demeanour, which I have outlined;

  1. (b)
    the complainant did not impress as someone who was giving evidence in accordance with a rehearsed script;
  1. (c)
    the account given by the complainant of the offences was quite bizarre and unusual, such that it was not likely to be a lie fabricated by a young female. It was elaborate in nature;
  1. (d)
    some inconsistencies, which I have mentioned above, were to be expected, particularly with the degree of delay involved;
  1. (e)
    her demeanour was that she was reluctant to complain at first;
  1. (f)
    it is significant that she absolved the second man in the garage of any wrongdoing. This is unlikely to be consistent with a fabrication in order to get her mother or other people in trouble;
  1. (g)
    the complainant told the psychologist, Ms Fleming, that she was interested in having some form of safe access or contact with her mother. Again, this is inconsistent with a vindictive liar;
  1. (h)
    the complainant made the concession in cross-examination that she woke up the next morning after the first offence thinking that she had imagined it. This is an honest concession, in my view, and again not one consistent with a vindictive liar;
  1. (i)
    the evidence of both B and C paint a picture of the house, and the goings on there and the activities of the defendant during the relevant period, although not at the exact time of the offences, which was consistent with the complainant’s evidence as to those matters. This provides a buttress to the complainant’s credit worthiness, although it is not evidence of what would be legally regarded as a corroborative nature, in that it does not tend to implicate the defendant in any offence. Nevertheless it is support for the complainant’s version.”
  1. [108]
    Apart from the factors which the trial judge set out at [98], the trial judge took into account (at [100] of the reasons) that the complainant’s credit was not damaged by any established motive to lie and the approaches to fact-finding in cases of sexual offending against children set out at [101]-[114] of the reasons (which have been referred to above in dealing with ground 3).
  2. [109]
    Assessing whether reasons for a decision are adequate depends on the facts and circumstances of the particular case: R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522 at [34].
  3. [110]
    The trial judge’s consideration of the approach relevant to fact-finding in a case of sexual offending against a child and the specific factors which the trial judge outlined for the acceptance of the complainant’s evidence as proving the elements of the offences beyond reasonable doubt addressed thoroughly the issues raised at the trial as to the complainant’s credibility (and reliability).  The trial judge’s reasons did not need to explain the analysis he had undertaken in respect of each inconsistency or discrepancy in respect of the complainant’s evidence, as the reasons explained that the inconsistencies and discrepancies were identified and the factors that the trial judge applied to resolve them.  The reasons for the trial judge’s conclusion for finding the complainant credible, despite the inconsistencies and discrepancies in her evidence, in the circumstances disclosed by all the evidence adduced before the trial judge are more than adequate.
  4. [111]
    The appellant also fails on ground 5.

Orders

  1. [112]
    We therefore propose the following orders:
  1. Application for leave to amend the notice of appeal refused.
  2. Appeal dismissed.

Footnotes

[1] R v BDF [2020] QDC 37 at [115].

[2]  Ibid.

[3]  Ibid.

[4]  [1997] HCA 54; (1997) 191 CLR 417.

[5]  Brennan CJ, Toohey, Gaudron and Gummow JJ.

[6]  [1997] HCA 54; (1997) 191 CLR 417 at 422.

[7]  [1998] QCA 71; [1999] 2 Qd R 89.

[8]  Pincus and McPherson JJA and Muir J.

[9]  [1998] QCA 71; [1999] 2 Qd R 89 at 94.

[10]  Which was numbered s 229B(1A) when it was considered in KBT.

[11]  At pages 13 and 14.

[12]  [2011] QCA 231 at [45]; [2012] 1 Qd R 440 at 457.

[13]  [2009] QCA 181.

[14]  [2011] QCA 231; [2012] 1 Qd R 440.

[15]  [2014] QCA 48.

[16]  [2011] QCA 231 at [46]; [2012] 1 Qd R 440 at 457.

[17]  [2020] HCA 20; (2020) 94 ALJR 629.

[18]  s 8 being in the same terms as s 8 of the Queensland Code.

[19]  [2020] HCA 20 at [40]; (2020) 94 ALJR 629 at 638.

[20]  Ibid.

[21]  [1997] HCA 19; (1997) 188 CLR 1.

[22]  [2020] HCA 20 at [66]; (2020) 94 ALJR 629 at 643.

[23]  s 229B(4).

Close

Editorial Notes

  • Published Case Name:

    R v BDF

  • Shortened Case Name:

    R v BDF

  • MNC:

    [2022] QCA 61

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Mullins JA, Mazza AJA

  • Date:

    29 Apr 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

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