R v NF[2023] QCA 208

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I agree with Burns J that each application should be refused.
2. [2]
   The comprehensive summary of the relevant evidence and legal principles undertaken by Burns J, which I gratefully adopt, allows me to briefly state my reasons.
3. [3]
   First, an independent assessment of the record as a whole reveals that it was open to the trial judge to reject the applicant’s evidence as implausible.  The DNA evidence as to the likelihood of the applicant being the father of the complainant’s first two children was particularly compelling, and the applicant’s explanation for that evidence was devoid of any credibility.
4. [4]
   Second, once having done so, an independent assessment of the other evidence advanced at trial amply supports a conclusion that it was open to the trial judge to find the complainant credible and reliable, and to be satisfied beyond reasonable doubt of the applicant’s guilt of counts 1 – 10, 14 and 15.  The complainant’s evidence was consistent as to the applicant’s offending conduct and was supported by other evidence, including expert evidence of the real likelihood of the applicant being the father of the child conceived in the maintaining period.
5. [5]
   Third, whilst the evidence did not allow satisfaction of proof beyond reasonable doubt of counts 11, 12 and 13, that was not because of a lack of credibility on the complainant’s part.  It was the inability to exclude, beyond reasonable doubt, an honest, but mistaken belief as to consent, in respect of each of those acts.
6. [6]
   Accordingly, the verdicts of guilty were not unreasonable.  There is no reasonable possibility that an innocent person has been convicted of those offences.
7. [7]
   I agree with Burns J that no other aspect of the applicant’s complaints support a conclusion that the verdicts ought to be set aside.
8. [8]
   Finally, the applicant engaged in prolonged and depraved sexual abuse of a young girl in his care, including raping that child.  Not only did he maintain an unlawful sexual relationship with that child for four years, he committed a further act of rape subsequently.  The impact on the complainant was profound.  There was no remorse.
9. [9]
   Against that background, the sentences imposed were well within a sound exercise of the sentencing discretion.  There was no misapplication of principle and no other error is shown.
10. [10]
    I would order:

1. The application for an extension of time within which to appeal against conviction be refused.
2. The application for leave to appeal against sentence be refused.

11. [11]
    BURNS J:  The applicant seeks an extension of time within which to appeal against his conviction on 30 July 2020 for maintaining a sexual relationship with a child with a circumstance of aggravation, as well as his convictions for a range of associated sexual and other offending against the same child. He also seeks leave to appeal against sentence.
12. [12]
    The accepted circumstances are such that an extension of time should be granted if there is any substance in the applicant’s complaints about the convictions or the sentence but, for the reasons that follow, there is none. His application, in both respects, ought be dismissed.

The trial

13. [13]
    The indictment charged 15 counts, as follows:

Count 1 – maintaining an unlawful sexual relationship with the child under the age of 16 together with a circumstance of aggravation, it being alleged that the applicant raped the child during the course of the relationship;

Counts 2 and 4 – indecent treatment of a child, each with a different circumstance of aggravation; for count 2, it was alleged that the child was younger than 12 years and, for count 4, it was alleged that the child was under the applicant’s care;

Counts 3, 6, 7, 8, 9, 11, 12 and 13 – rape;

Counts 5, 14 and 15 – common assault;

Count 10 – assault occasioning bodily harm.

14. [14]
    After successfully applying for a no jury order, the applicant proceeded to trial before his Honour Chief Judge O'Brien over four days commencing on 15 June 2020. Final addresses of counsel took place on 24 June 2020. On 30 July 2020, the verdict was handed down and comprehensive reasons published: R v NF [2020] QDC 206. His Honour found the applicant not guilty of counts 11, 12 and 13 but guilty of all other counts. The applicant was sentenced on 5 August 2020. On count 1, he was imprisoned for 15 years. Lesser concurrent terms of imprisonment were imposed for the other convictions and pre-sentence custody (835 days) was declared. No other order was made but the combined effect of s 161A of the Penalties and Sentences Act 1992 (Qld) and s 182 of the Corrective Services Act 2006 (Qld) meant that the applicant was convicted of a serious violent offence and will not therefore be eligible to apply for release on parole until he has served 12 years imprisonment (23 April 2030).
15. [15]
    The applicant was represented by solicitors and counsel at trial and sentence but he was not legally represented on this application.

The convictions

16. [16]
    In a Notice of Appeal completed by the applicant over three years ago, he asserted that he had not received a fair trial because of “incompetence” on the part of his legal representatives. Included also was a vaguely expressed concern about publicity when he was charged by police.
17. [17]
    At the hearing, the applicant proclaimed his innocence, advancing a stream of grievances anchored in one way or another to that general proposition. He alleged that his lawyers “did nothing for” him and “asked the wrong questions” when he came to give evidence. He accused the complainant of lying throughout her evidence and being otherwise unworthy of credit because, he said, she had engaged in a range of unlawful activities including assaults on him. He contended that evidence of paternity led by the Crown at his trial must be unreliable because, he declared, he had not engaged in sexual intercourse with the complainant until after she reached her majority. Otherwise, and despite the passage of over three years, the applicant bemoaned an inability to gather “evidence against” the complainant (that was not led at trial) in time for the hearing of his application.
18. [18]
    The concern expressed by the applicant about publicity accompanying the charges could not support any attack on his convictions; he was tried without a jury. Otherwise, the applicant’s complaints when taken together fell into three broad categories: first, that the convictions were unreasonable or could not be supported having regard to the evidence; second, that he did not receive a fair trial because he had not been competently represented; and, third, that there existed fresh evidence that might have resulted in an acquittal had it been led at his trial.

An unreasonable verdict?

19. [19]
    When faced with a ground of appeal to the effect that convictions were unreasonable or could not be supported having regard to the evidence, the Court is obliged to conduct an independent review of the record to determine whether the evidence was such that it was open to the trial judge to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged: SKA v The Queen (2011) 243 CLR 400, [21]. This requires the Court in a case such as this to examine the record to see whether, notwithstanding the judge’s acceptance of the complainant as both credible and reliable, there exists inconsistencies, discrepancies or other inadequacy or whether, in light of other evidence in the case, the Court is satisfied that the judge ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell v The Queen (2020) 268 CLR 123, [39]. If an examination of the record reveals that there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence: M v The Queen (1994) 181 CLR 487, 494.
20. [20]
    Here, the primary source of evidence to support the convictions came from the pre-recorded evidence of the complainant. She was born in 1983 and was one of five children. She first met the applicant when she was 11 years of age and lived with her mother and four siblings in Townsville. The applicant, who was born in 1951 and therefore 32 years her senior, lived with his four sons in a nearby suburb. A relationship developed between the applicant and the complainant’s mother after which the two families began living together at an address in Rasmussen in May of the following year. The blended families moved house twice thereafter before the relationship between the applicant and the complainant’s mother broke down when they were living in Greenvale in 1996. The complainant’s mother re-partnered and moved to Ingham with all her children except the complainant; she was left behind with the applicant and his sons in Greenvale where they remained until returning to Townsville in 1998. The complainant turned 16 years of age in 1999 – the end of the maintaining period charged in count 1 – and remained with the applicant until she obtained a domestic violence order against him in 2011. She was then around 28 years of age.
21. [21]
    According to the complainant, the applicant began to sexually abuse when the families were living together in Rasmussen. She was 11 years old. This abuse, including offences of rape, continued at the subsequent addresses. During that time the complainant gave birth to five children. On the complainant’s clear account, and supported by a series of formal admissions as well as DNA evidence led by the Crown at the trial, the applicant was the father of each child. The children were born in 1999, 2001, 2004, 2006 and 2007. Count 1 – constituted by the maintenance of an unlawful sexual relationship with the complainant between 1995 and 1999 – was marked by regular acts of vile sexual abuse including the acts constituting counts 2, 3, 4, 6, 7 and 8 (indecent treatment of a child under 12 years, indecent treatment of a child under 16 years and four counts of rape) and ended when she reached the age of consent, a date coinciding with the birth of her first child. There was a further offence of rape in the middle of 2000 (count 9) as well as assaults of varying severity in 2001 (count 10) and 2011 (counts 14 and 15). The complainant also gave evidence of not having consented to intercourse when each of her last three children were conceived – in 2003, 2005 and 2006 (counts 11, 12 and 13) – but, as I will explain, the applicant was acquitted of those counts.
22. [22]
    A forensic scientist gave expert evidence as to the paternity of the complainant’s children based on DNA profiles extracted from the applicant, the complainant, three of the applicant’s sons and each of the complainant’s surviving children. Her unchallenged opinion was that the complainant’s first child (born in 1999) was 2.5 billion times more likely to be the biological offspring of the complainant and the applicant rather than the offspring of the complainant and another man and that her second child (born in 2001) was 14 billion times more likely to have been the offspring of the complainant and the applicant rather than the offspring of the complainant and another man. In the case of each of those children, the scientist was able to exclude the applicant’s sons as possible biological fathers.
23. [23]
    The complainant’s mother and partner (with whom she moved to Ingham in 1996) gave evidence, as did several of the complainant’s brothers. Each supported different peripheral aspects of the complainant’s account. There was also preliminary complaint evidence from a lay witness and a police officer.
24. [24]
    The applicant participated in a record of interview with police on 23 April 2018 and it was put into evidence at the trial. In it, he denied any sexual or physical offending against the complainant. He rejected any notion to the effect that he was the father of the two first-born children and suggested that their fathers must be two of his sons. The applicant stated that he did not commence a relationship with the complainant until two or three months after the birth of her second child in 2001. When giving evidence at the trial, the applicant mostly repeated his denials. He said that the complainant “actually begged” him to commence a relationship after her second child was born and said that he gave in “because the kids needed a father”. Otherwise, he took the opportunity when giving evidence to attempt to disparage the complainant with a string of improbable claims, most of which he repeated in this Court in support of his application. When cross-examined, the applicant conceded that he must be the father of the complainant’s first two children but said that he had no memory of any acts of sexual intercourse leading to those pregnancies and theorised that he must have been “drugged and raped” by the complainant. The trial judge later found this claim to be “completely implausible and probably represents a desperate attempt to explain the parenting of (the first two children) in the face of the overwhelming DNA evidence”, and I can only agree.
25. [25]
    In the trial judge’s assessment, the complainant was “a compelling and convincing witness” who “delivered her evidence with a level of conviction difficult to feign”. She “provided a highly detailed account of the offending without any attempt at embellishment”. The scientific evidence was also “compelling” and supported the complainant’s account that the applicant was the father of her first two children. The other lay evidence (including the preliminary complaint evidence) supported several aspects of the wider offending. In the end, his Honour was satisfied of the truthfulness and reliability of the complainant’s evidence in relation to all material issues. On the other hand, the trial judge found the applicant to be “an unimpressive witness”. His account was in “many parts inconsistent and inherently implausible”. The trial judge singled out the applicant’s claim that he had “finally given in” to the insistence of the complainant, 32 years his junior, who had “begged” him to establish a sexual relationship as lacking credibility. His Honour also referred to the implausibility of the applicant’s evidence that he had “somehow been drugged and raped by the complainant”. The trial judge accordingly rejected the applicant’s evidence but, consistently with principle, put that evidence to one side and to determine whether, on the basis of such evidence as he did accept, the applicant’s guilt had been established to the requisite standard. The trial judge was so satisfied in relation to all counts except for counts 11, 12 and 13. In the case of those counts, while his Honour had little difficulty in accepting the proposition that the complainant was someone “who was, effectively, trapped in a controlling and demeaning relationship”, the evidence in relation to those counts was to the effect that she submitted to the relevant acts of intercourse because there was no longer any point resisting. As she said, “I just shut down and just let him do whatever he had to do so that I could get away again”. The trial judge correctly found that “submission to an act of intercourse does not equate to consent” but, just as correctly, his Honour was unable to be satisfied beyond reasonable doubt that the applicant did not have an honest and reasonable but mistaken belief that the applicant was consenting: Criminal Code 1889 (Qld), s 24.
26. [26]
    After a review of the record in this case, not only was it open to the trial judge to reach the conclusions which his Honour did regarding the credit of the various witnesses in the case and then, on the whole of the evidence which his Honour did accept, to be satisfied beyond reasonable doubt that the applicant was guilty of all but counts 11, 12 and 13, in my view the evidence was such as to permit no other conclusion. Nothing was revealed in the evidence, whether by way of inconsistency, discrepancy, inadequacy or otherwise, to suggest that the trial judge ought to have entertained a reasonable doubt as to proof of guilt and the applicant’s account was rightly put to one side as undeserving of any reliance. In the end, not only did the complainant provide a coherent and consistent account of all of the offending against her, her account was amply supported in different aspects by a significant body of other evidence in the case including scientific testimony that, as it emerged, provided incontrovertible evidence to the effect that the applicant fathered her first two children (conceived when the complainant was aged 15 and 16 years respectively), something even the applicant was forced to concede when cross-examined. There is no merit in any complaint to the effect that the convictions were unreasonable or could not be supported having regard to the evidence.

Incompetent representation?

27. [27]
    Nor is there any substance in the applicant’s complaints about his trial lawyers. Relying again on my review of the record, nothing was revealed in the conduct of the trial on the applicant’s behalf that could be said to have in any way been productive of injustice, and that is the test: Nudd v The Queen (2006) 80 ALJR 614, [8]-[9]. To the contrary, and without of course knowing what was in his counsel’s brief, what can be discerned from the record was a capably conducted defence in the face of what proved to be an overwhelming Crown case. The applicant’s allegations to the contrary are as ill-informed and baseless as they are wrong.

New evidence?

28. [28]
    The applicant’s claim regarding the sourcing of new “evidence against” the complainant was bereft of detail but, even if it was properly particularised, the applicant would still face a considerable hurdle because he would first have to establish that the evidence in question was not available at his trial and could not, with reasonable diligence, have been discovered: R v Spina [2012] QCA 179, [32]-[34]. He made no attempt to do so. Furthermore, an appellant seeking to rely on such evidence would need to establish that there was a significant possibility that, in light of all the admissible evidence, the judge acting reasonably would have acquitted him: Mickelberg v The Queen (1989) 167 CLR 259, 273, 292, 301-302. However, evidence apparently to be deployed in a further attempt to besmirch the complainant could hardly be sufficient to raise such a possibility given the strength of the case against the applicant. Like his other attempts to impugn the convictions, this attempt must also be rejected.

The sentence

29. [29]
    The only place where complaint was made about the sentence imposed was in the Notice of Appeal prepared by the applicant. He did not repeat that complaint at the hearing. In any event, it cannot be said that the sentences imposed by his Honour were, either when taken together or considered individually, manifestly excessive. They were in line with sentences imposed in the past for similar levels of offending: R v SAG (2004) 147 A Crim R 301; R v Robinson [2007] QCA 99; R v TS [2009] 2 Qd R 276; R v HBT (2018) 274 A Crim R 569.
30. [30]
    Leave to appeal against sentence should be refused.
31. [31]
    RYAN J:  I agree.