DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant was arraigned on and pleaded not guilty to the following offences:

• 1 count of maintaining a sexual relationship with a child under 18 years;
• In the alternative, 1 count of maintaining a relationship with a child under 16 years;
• 9 counts of indecent treatment of a child under 16;
• 119 counts of rape;
• 4 counts of recording in breach of privacy; and
• 60 counts of sexual assault.

2. [2]
   After the close of the prosecution case, I ruled there was no case to answer on count 6, Rape.

3. [3]
   The charges cover a period from March 2006 to November 2011, during which time the complainant was aged 13 to 19 years.

Onus of proof

4. [4]
   Before reaching a verdict of guilty on any count I must be satisfied the prosecution has established guilt of that charge beyond reasonable doubt. In this case, where the element of consent is in issue, the prosecution must prove that element and also negative honest and reasonable but mistaken belief in consent.

5. [5]
   As will, I trust, become evident, my verdicts are based on the evidence, and only on the evidence. In this case, apart from what the witnesses said from the witness box, I have admitted various documents, including photos, video recordings, the defendant’s interview with police, and an index particularising each count contained in the DVD recordings as exhibits and there are admissions which I will refer to below, when dealing with the evidence.

The defendant has not given or called evidence

6. [6]
   A defendant is entitled to insist that the prosecution prove the case against him, if it can. The absence of defence evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. I do not assume that because he did not give evidence that adds in some way to the case against him.

The prosecution case

7. [7]
   Broadly put, the complainant says the defendant first indecently dealt with her when she was 14 years old. He had sexual intercourse with her, without her consent, from the same age. Sexual activity, including various forms of penetration, continued until about her 19th birthday.

8. [8]
   Much of the sexual activity was video recorded by the defendant. I have not watched all of the video recordings. Counsel both submitted that was not necessary. I have been greatly assisted by the efficient manner in which the trial was conducted, including written particulars of each charge with, where appropriate, indications as to where to find the relevant acts on video recordings. I have watched any part of the recordings referred to by Counsel and more.

9. [9]
   The issues include whether certain acts occurred at all; when the acts occurred – this is particularly relevant to the counts of indecent dealing and would be relevant to statutory alternative charges of incest, unlawful carnal knowledge and indecent dealing; whether the complainant did not consent; whether the prosecution can exclude mistake of fact (Codes.24^[1]); whether the defendant and the complainant’s mother were, at relevant times, in a de facto relationship – this would be relevant to the alternative verdict of incest.

The elements of the offences charged and their alternatives.

Count 1 - Maintaining a Sexual Relationship with a Child under 18 years

10. [10]
    The prosecution must prove that the defendant, an adult, maintained an unlawful relationship of a sexual nature with a child under 18 years old.

11. [11]
    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.

12. [12]
    ‘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.

13. [13]
    The prosecution must prove that the complainant was at the time a child under 18 years and that the relationship “involves an act that constitutes, or would constitute (if it were sufficiently particularised), an offence defined in section 208” of the Code.^[2].

14. [14]
    The prosecution relies upon sexual acts particularised in other counts on the indictment as well as others.

15. [15]
    It is not in issue that the defendant was an adult who carried on a sexual relationship with the complainant. The issues are (i) whether any sexual acts were unlawful and (ii) whether the incident giving rise to the charge of rape that is particularised as sodomy (Count 24) occurred at all. Behind the first issue are questions whether the prosecution has proved the acts occurred when the complainant was under the age of 16 years, and/or without the complainant’s consent or under s. 24 mistake.

Count 2 - Maintaining a Sexual Relationship with a Child under 16

16. [16]
    This is charged in the alternative to count 1. Obviously the elements are the same but that it is unnecessary to prove the sodomy and the charge only catches unlawful sexual acts committed before the complainant turned 16.

17. [17]
    The issues include whether certain acts occurred at all and whether acts occurred before the complainant’s 16th birthday.

Counts 3, 4, 7, 9, 12, 14, 17, 19, 20 – 9 counts of Indecent treatment

18. [18]
    All counts are charged under Codes. 210(1)(a). The prosecution must prove that (i) the defendant dealt with the complainant; (ii) the dealing was indecent and (iii) unlawful; and (iv) the complainant was under 16 years.

19. [19]
    The term “deals with” includes a touching of the child.

20. [20]
    The word “indecent” bears its ordinary meaning, that is, what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency is to be judged in the light of time, place and circumstances.

21. [21]
    Unlawful means not justified, authorised or excused by law.

22. [22]
    As to particulars, in Counts 3 and 4 it is alleged the defendant came to the complainant’s bed and rubbed his penis against the back of her legs. The remaining counts all allege the defendant put his mouth on the complainant’s genital area.

23. [23]
    The issues are whether certain acts occurred and whether any were committed while the complainant was under the age of 16 years.

Counts 5, 8, 11, 13, 15, 21, 23, 24, 25-31, 33-38, 40-44, 46-48, 50, 52, 53, 57-59, 61-65, 68, 69, 72, 74, 76, 78, 79, 81-87, 89, 94, 96, 98, 101, 104, 106, 108, 110, 113, 114, 115, 119, 121-124, 126, 128, 130, 132, 134, 136, 140, 142, 144, 146, 147, 148, 151-153, 155, 157, 159-161, 164-171, 174, 176-180, 182, 184, 186, 188, 189, 191, 192, 196, 198-202  - 118 Counts of Rape

24. [24]
    Rape includes various forms of sexual penetration of another person without the other person’s consent – the particulars in this case include penetration of the vagina with the penis; penetration of the vagina with an object (Count 57) or with a finger (Counts 146 and 174); penetration of the mouth with the penis; penetration of the anus with the penis (Count 24).^[3]So, in each case the prosecution must prove (the relevant) penetration to any extent without the complainant’s consent.

25. [25]
    Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. (Codes. 348(1)).

26. [26]
    Subsection 348(2) provides:

(2)Without limiting subsection (1), a person’s consent to an act is

not freely and voluntarily given if it is obtained—

(a)by force; or

(b)by threat or intimidation; or

(c)by fear of bodily harm; or

(d)by exercise of authority; or

(e)by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner

27. [27]
    The prosecution relies, primarily, on subparagraphs (a), (b) and (d) to prove that the complainant did not give her consent to the various acts of penetration. So understood, the prosecution case is that the complainant’s “consent” – her agreement to or acquiescence in what the defendant proposed or desired; her compliance, concurrence, permission^[4]- was not freely and voluntarily given because it was obtained by various combinations of (a), (b) and (d).

28. [28]
    An assessment of whether consent is freely and voluntarily given in a particular case requires consideration of all of the circumstances.

‘… the notion of acting “freely and voluntarily” is one which has a relationship implicit in it. One acts “freely and voluntarily” when one acts free from circumstances constraining one’s actions.’^[5]

29. [29]
    The issues include whether certain alleged acts of rape occurred but the vast majority of the penetrative acts are captured on video. In all cases the issue is whether the prosecution has proved that the complainant did not give consent and/or the defendant was not acting under s. 24 mistake. That section relevantly provides:

Mistake of fact

(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

30. [30]
    An honest belief is one which is genuinely held by the defendant. To be reasonable, the belief must be one held by the defendant, in his particular circumstances, on reasonable grounds.^[6]

31. [31]
    Upon the issue being fairly raised, it is not for the defendant to prove that he made a mistake of fact, but for the prosecution to prove beyond reasonable doubt that he did not do so. To exclude s. 24 mistake, the prosecution must prove that (i) the defendant did not honestly hold the relevant mistaken belief about the giving of consent or (ii) that belief was not reasonable in the defendant’s circumstances.

Counts 54, 55, 70 and 138 – 4 counts of Recording in breach of privacy

32. [32]
    Section 227A of the Code provides:

227A Observations or recordings in breach of privacy

(1)A person who observes or visually records another person, incircumstances where a reasonable adult would expect to be

afforded privacy—

(a)without the other person’s consent; and

(b)when the other person—

(i)is in a private place; or

(ii)is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;

commits a misdemeanour.

33. [33]
    These charges concern video of the complainant in the bathroom, where the defendant had installed a camera. Defence counsel, Mr Davies, made no submissions with respect to these counts, conceding that there was no apparent defence to the charges.

Counts 32, 45, 51, 56, 60, 71, 73, 75, 77, 80, 88, 90-93, 95, 97, 99, 100, 102, 103, 105, 107, 109, 111, 112, 116-118, 120, 125, 127, 129, 131, 133, 135, 137, 139, 141, 143, 145, 149, 150, 154, 156, 158, 162, 163, 172, 173, 175, 181, 183, 185, 187, 190, 193-195, 197 - 60 counts of sexual assault

34. [34]
    Codes. 352 relevantly provides,

Sexual assaults

(1)Any person who—

(a)unlawfully and indecently assaults another person; or

(b)procures another person, without the person’s consent—

(i)to commit an act of gross indecency; or

(ii)to witness an act of gross indecency by the person or any other person;

is guilty of a crime.

35. [35]
    It is not clear from the indictment whether these charges are brought under s. 352 (1)(a) or (b). These charges all allege the defendant touched the complainant’s genitalia/groin with his mouth except count 95 (Procuring the complainant to touched his penis in the absence of her consent), count 118 (Defendant touched the complainant’s breasts and groin with his hand/s) and count 175 (Defendant touched the complainant’s breast/s with his hand/s).

36. [36]
    There is authority for the proposition that the definition of consent in Codes. 348 is not incorporated into s. 352(1)(a)^[7], despite that section falling within Chapter 32 of the Code. That would result in different meanings for the term ‘consent’ in subparagraphs (a) and (b). Absence of consent is an element of the offences created under both. In any case, applying the natural definition of consent in the assessment of the evidence relating to the charges of sexual assault brought under s. 352(1)(a) produces the same practical result. As I have already mentioned, the primary meaning of ‘consent’ is the ‘voluntary agreement to or acquiescence in what another proposes or desires; compliance, concurrence, permission.’ The issue with respect to these charges is whether it is proved that the complainant did not give voluntary agreement to or acquiescence in the acts which constitute each charge.

37. [37]
    Code s. 578 provides that a person charged with rape may be convicted, if it is established on the evidence, of alternative offences. The relevant alternatives in this case are sodomy (s. 208), unlawful carnal knowledge (s. 215) or incest (s. 222). Also, indecent dealing is available as an alternative verdict to a charge of sexual assault.

Other legal matters

38. [38]
    There are 193 charges for decision.^[8]Each charge is to be considered separately, evaluating the evidence relating to it. Because different charges have different elements and evidence, the verdicts need not be the same.

39. [39]
    It has been submitted, and I accept, that my general assessment of the complainant as a witness will be relevant to all counts, but I must consider her evidence in respect of each count when considering that count. And a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts must be taken into account in assessing the truthfulness or reliability of her evidence generally.

40. [40]
    The prosecution relies on evidence given by the complainant as to sexual conduct of the defendant which is not the subject of a specific charge, although, of course, depending on when it is said the conduct occurred, the evidence might be directly relevant to proof of count one or count two. Examples of this evidence include conduct by the defendant during a journey he and the complainant made to New South Wales, when the child was about 9 years old; sexual activity the complainant alleges took place at a property, which I will refer to as the block, when she and the defendant went to care for the dogs kept there and an incident in the complainant’s bedroom between the incidents giving rise to Count 3 and Count 4.

41. [41]
    It is proper that I take this type of evidence into account, if I accept it beyond reasonable doubt, for the limited purposes for which it is adduced. The first purpose, and this applies more particularly to evidence of acts committed early in the relationship, is to prove the defendant had a sexual interest in the complainant and that the defendant had been willing to give effect to that interest by doing the acts described.

42. [42]
    It is not sought to prove the defendant is someone who has a tendency to commit the type of offences with which he is charged. And, of course, I may not reason that the defendant had done things equivalent to the offences charged on the other occasions and so should be convicted of the offences charged without specific proof beyond reasonable doubt.

43. [43]
    As I apprehend the prosecution case, all evidence of sexual conduct, and evidence of the relationship generally between the defendant and the complainant, as well as evidence of the characteristics of the defendant and the complainant, are adduced in proof of the issue of lack of consent and the exclusion of s. 24 mistake. I consider the evidence is so admissible.

44. [44]
    Also, the evidence is admissible because it provides a context within which the complainant is able to tell her story.

Family history and the complainant’s development

45. [45]
    The complainant was born in September 1992.^[9]She has a half-sister, who I will refer to as Ms T, who was born in 1981. Their mother, who I will refer to as Ms M, met the defendant about 14 years ago, in 1998 or 1999. The complainant was then about five or six years old. They lived together at a remote place in New South Wales. The defendant was injured in a work accident in 2000. He was not able to work after that but later was, apparently, awarded compensation. The group came to live in Queensland in about 2003.

46. [46]
    The complainant had no contact with her biological father.

47. [47]
    In Queensland, the family lived in a converted bus in the bush near a small rural town. There was no electricity. The family’s possessions were moved from New South Wales over several trips in the defendant’s vehicles. On one of these trips the defendant took only the complainant with him.

48. [48]
    From an early age the defendant appeared to consider himself the complainant’s stepfather. As Ms M said, “he took her places, he taught her to ride bikes, and it was just general father things, I suppose, just part of the family.”^[10]The defendant also washed the complainant’s clothes when she was younger.^[11]

49. [49]
    The complainant had her tenth birthday at this location.^[12]After about 12 months living in the converted bus, the family group moved to the block, which was located ‘right up the back of a valley’.^[13]The defendant purchased this property and took possession of it on 29 August 2002.^[14]The defendant and the complainant’s mother slept in a caravan while the complainant slept in a tent. Eventually they moved a cabin onto the property where they all slept. There was no power to the property. A solar panel charged batteries, providing some light and the radio.^[15]

50. [50]
    The complainant’s schooling was interrupted by the move to Queensland. Having started school in New South Wales, she was older than classmates when she attended Grade four at the local town state school, which I will refer to as town A and school A, in 2003. She moved from year four to year six in 2004. As she turned 12 in September of that year, she was then and thereafter generally a year older than others in her grade. The complainant then progressed to year 10 at the same school in 2008. She attended a larger regional town high school (town B) for grades 11 and 12 in the years 2009 and 2010 respectively.

51. [51]
    To get to school from the block, either the defendant drove the complainant to the local shop where she caught a bus into town A or she rode a bicycle on the 6 kilometre dirt road from the property to the shop. When it rained heavily the property was flooded in.

52. [52]
    It seems that around this time Ms M sold her car. It was not a four-wheel drive and she did not have the experience to drive through creek beds.^[16]The only vehicle in the family was the defendant’s four-wheel drive. During the time on the block the family developed difficulties with some neighbours. There was no evidence about the particulars of this dispute but it clearly had long-term effects on the family. The complainant was sent to New South Wales to live with her sister for about six months,^[17]causing an interruption to her schooling in year six.^[18]The dispute caused Ms M a great deal of stress. She described her health deteriorating, weight loss, being sick in the morning and resorting to marijuana use.^[19]Ms M continued to use cannabis on and off from then on.

53. [53]
    Sometime after the complainant returned from New South Wales the family group moved into a rented home in the same area (house 1). This was probably in about May 2005. Ms M gave notice to the school in July 2005 that the family had moved.^[20]This was a three-bedroom home. There was power but no television reception. At first Ms M and the defendant occupied a bedroom and the complainant slept in another room. After some time the defendant moved into a spare room. Ms M explained that with her sickness came a loss of libido and while going through menopause she lost interest in sexual activity. Also the defendant liked to watched television (movies) at times when she wanted to sleep. As explained by Ms M, apart from signalling the end of the sexual relationship, the separation of rooms did not spell the end of the family unit or their relationship in particular. She became more isolated. She had no vehicle but would be taken by the defendant fortnightly for shopping. Otherwise she rarely left the property. She would “only go to the very, very special things like the school presentations”.^[21]

54. [54]
    The defendant and the complainant’s mother kept separate bank accounts. She received a single parent pension.

55. [55]
    The defendant owned several dogs. After the family moved from the block he left some of the dogs there. He would regularly take the complainant with him to feed the dogs and do other work on the block.

56. [56]
    Witness Ms W, who, with her husband, owned a camping ground nearby, employed the complainant occasionally from 2006 onwards. In July and at Christmas time the complainant was employed to help in the kitchen. The defendant would drop the complainant off and pick her up, usually going to the block in the interim. He would return and wait for the complainant, sometimes prepare food for himself and help with the dishes (which was the complainant’s job at the time). At other times, the complainant worked in the office for Ms W.

57. [57]
    The complainant underwent a pregnancy termination on 10 January 2008. She was then 15 years old and about to enter year 10. The family still lived at house 1.^[22]Ms M gave evidence that she alerted the complainant to the possibility that she was pregnant because she, Ms M, found she was not having to provide her daughter with sanitary protection. This led to a pregnancy test and the termination. Ms M’s evidence was that the complainant refused to tell her who was the father of the child.^[23]The three travelled to the defendant’s parents’ place, where they stayed the night before the termination. Count 6, upon which I ruled there was no case to answer, alleged rape at that house on the evening before the pregnancy termination. It was common ground the family group, and particularly the defendant and complainant, regularly visited and stayed with his parents.

58. [58]
    Witness Ms C, who operated a caravan and camping business nearby the family’s residence, came to know the complainant well, having first met her as a 10 year old. Ms C, who was active in a community club at town B, said the complainant was helpful in the community. In 2009, she successfully nominated the complainant for a bursary awarded by the club. She collected the complainant and the defendant and took them to town B for the presentation dinner. The complainant’s mother, who would normally have been expected to attend the function, did not attend. In 2010, the complainant was awarded another bursary. Ms C gave evidence that the complainant was also an ambassador in some respect for town B. When it was put to Ms C that the complainant was highly socially functional, she replied, ‘highly socially? She was certainly very good at school, yep.’^[24]When it was put to her that she nominated the complainant for the bursaries because of ‘her social function and her intellect’, the witness replied, ‘It was her intellect’.^[25]

59. [59]
    After living at house 1 for about four years, the family moved to a rented home in town A for about three or four months before moving to a rented house in town B (house 2).

60. [60]
    House 2 had two bedrooms upstairs and two bedrooms downstairs. Ms M slept in one of the upstairs rooms. The defendant and the complainant slept in downstairs rooms. Ms M continued her isolated existence, staying often in her room.

61. [61]
    The family were living at house 2 when the complainant completed Year 12. She achieved an OP score of 10. The complainant said she enjoyed school - ‘I kind of liked it, to sort of be out of home, if that makes sense. But, yeah, I had all my friends there and it was just a place I liked to be.’^[26]

62. [62]
    After the complainant finished school, the defendant bought her a car. He had also earlier bought Ms T a car. He offered to purchase Ms M a car but she declined.^[27]The defendant did pay for her dental work.

63. [63]
    The complainant started working at a nearby restaurant and function centre while living at house 2.

64. [64]
    The defendant purchased a house in the same town (house 3) on 7 February 2011. The title to the home is held in the name of the complainant and the defendant.^[28]

65. [65]
    Ms M’s discovery of a sexual relationship between the defendant and complainant came when the group was living at house 3. She gave evidence that she walked into the complainant’s room to find the defendant having sex with her. After this she spoke to the complainant and among other things asked her whether the defendant had fathered the aborted child. She agreed, in cross-examination, that the complainant told her she had become pregnant on a school trip to get awards for speech night.^[29]The complainant told her the sexual relationship ‘had only been going on since they had a big fight at [the previous house] and she was just, like, trying to keep us all together and she felt pressured’.^[30]She told the complainant that if she did not want the sexual activity to happen she should go to the police. She had little other time to talk to the complainant because the defendant would usually be present. Ms M agreed in cross-examination that she discovered the sexual activity in May 2011. She agreed she told the complainant that if the complainant did not want the activity and the defendant made her do it, that would be rape.^[31]

66. [66]
    On a later occasion Ms M saw the defendant and the complainant going to the shed at the back of the home at house 3. What she saw made her suspicious that the sexual conduct was continuing. She said again to her daughter that if the daughter did not want it to be happening that would be rape.^[32]

67. [67]
    As the complainant grew older and, for example, started playing netball when in grade nine, it was the defendant who took her to her activities. Ms M, though asked to go with them, gave evidence that she could not bring herself to go out. She did attend a dinner of the community club that I have already referred to when her daughter was to receive an award. Other witnesses also gave evidence confirming Ms M’s isolation and lack of involvement in the family.^[33]

68. [68]
    The complainant’s account of her relationship with the defendant is consistent with Ms M’s description of it. The complainant met the defendant when she was about five years old. After living opposite her mother and her, the defendant moved in with them. She had no relationship with her biological father. She considered the defendant her stepfather. She always called him by his first name. They did many things together. She helped him out with jobs around the home as well as when he worked on neighbouring properties. She sometimes went shopping with him and to social outings. Her mother always cooked the family dinner but she usually went to the defendant for help with homework, particularly maths homework. When the family lived at the block and house 1 she had chores to do – chop wood, feed the dogs or horses or cows and go to help the defendant with farm work. She was expected to do her chores and so she did them. The complainant’s mother stopped driving while the family lived at the block so it was the defendant who drove her anywhere she needed to go. The complainant made some friends locally, particularly one family she met waiting for the bus for school but given the remoteness of their block, it seems there was little activity away from home. The nearest neighbour would have been the shop, about six kilometres away. Occasionally, a friend came to play.

69. [69]
    House 1 was closer to town than the block. The complainant and defendant became friends with local farmers and would help them out. She continued to have chores to do around the house as well as going with the defendant to the block to feed the dogs and water them. This they would do very regularly in the afternoon. Mainly self-sufficient with her homework, if the complainant had a question the defendant would be happy to help. When not at school the complainant’s time was largely taken up with chores and homework – “we were still quite the country people”. In grade 9 (2007), she started playing netball. It was always the defendant who took her to netball. Indeed, the complainant said the defendant was always offering and willing to take her places. Her relationship with her mother had deteriorated somewhat. She would chat back at her mother if asked to wash the dishes. The complainant agreed with the proposition that she resented her mother’s lack of interest in her life.^[34]Her mother was “very apprehensive about even going to my speech nights where I’d get awards because she’d be too nervous”.^[35]The complainant was able to invite a couple of friends over to house 1.

70. [70]
    The complainant gave evidence of a history of overbearing or controlling conduct by the defendant. She gave an account of an incident when the family lived in New South Wales when she was, she said, wrongly accused of feeding the cat food to the dogs. She said she was locked in her room until she admitted what she had done. That is, she eventually admitted doing something which she had not done so that she would not be in trouble anymore.^[36]

71. [71]
    The complainant gave an example from the family’s time at house 1. If, for example, she did not want to go to feed the dogs or if she wanted to do homework rather than work on the irrigation pipes, she would get into trouble. That seems to mean that an argument would start. Rather than “going through the hassle, you just sort of went and did them”.^[37]

72. [72]
    Although when she was younger she might be smacked for not doing a chore or some other wrong, the complainant said that at house 1 any dispute would lead to an argument which would “only be resolved with me going to do whatever I was asked to do”.^[38]She said she was never grounded “because there wasn’t anywhere that I could go anyway, or I didn’t have anything that could be taken off me, so it was basically all that I got to do was be berated or argued with.”^[39]

73. [73]
    Even as the complainant grew older, the defendant displayed unusually strict and controlling behaviour. At the age of about 17 or 18 years, when the complainant went out with her friend, Ms L, to eat or see a film, the defendant would go with them.^[40]

74. [74]
    The complainant was permitted to attend her senior formal in 2010. She was not allowed to go to the formal with a boy. When she and her friend, Ms K, arrived at the formal the defendant was there and put himself in front of a teacher who was present to open car doors as the guests arrived. The defendant opened the car door to let the complainant and her friend out. There was an after formal party which, at first, the complainant was not allowed to attend. Eventually the defendant said she could attend because he had been approached and asked by the person hosting the party to be a security guard. In fact, the defendant was not invited to do so but had told the host that he would be attending the after formal party to help.^[41]

75. [75]
    After the complainant commenced employment at the nearby restaurant, the defendant would regularly attend, alone, the dining area she worked in. Ms L, who also worked there, would sometimes drive the complainant home. If they were late, she said, the defendant would yell at the complainant ‘for slutting around, waiting back to see other boys when we’d been working”.^[42]

76. [76]
    On an occasion in 2011, the defendant and his brother followed the complainant and Ms L to a party, at the home of young men who also worked at the restaurant. Ms L and the complainant gave evidence that the defendant kicked the fence and pushed the complainant to the ground. Ms L agreed with the proposition, put in cross-examination, that the defendant ‘had an issue with the fact that there was alcohol and boys there.”^[43]

77. [77]
    Ms M gave evidence that the defendant placed a desk in a doorway between her room and the complainant’s bedroom at house 3, with the effect of preventing easy access between the two rooms.^[44]

78. [78]
    Witness Ms B also worked at the restaurant with the complainant. She and the complainant came to Brisbane for a weekend around the time of the complainant’s 19^th birthday. The plans included the complainant getting a tattoo. Ms B gave evidence of the defendant’s insistence on the place they were to go to for the tattoo. Also, the defendant told her, “she’s the sunshine of his life and if anything is to happen to her, he would cut my fucking throat’.^[45]The complainant did, nonetheless, get a tattoo of her choosing, the choice being influenced by the defendant’s insistence that it be tasteful.

79. [79]
    Witness Mr H met the complainant in September 2011, on Facebook. They kept the relationship secret. He drove from another town, where he lived, to see the complainant at town B. One day, they were sitting in his car at a carpark. When the complainant saw the defendant drive past she ducked underneath the seat. She seemed shaken and scared.

80. [80]
    In summary, this evidence shows that from a young age the defendant was the complainant’s most active parent. Her mother was isolated and, while loved and respected, much less engaged. The family lived in isolated circumstances. The defendant exercised authority, perhaps complete authority, over the complainant. She learned from an early age she would not win an argument. Even if he was, in her view, mistaken on a matter, he was unmoveable. The defendant displayed overbearing, controlling behaviour. The complainant, perhaps differently from her older half-sister, learnt to become submissive to the defendant, even while she was successful at school and otherwise outside the home.

The Complainant’s account of the events giving rise to the charges

81. [81]
    The complainant describes the first sexual encounter with the defendant as occurring on a school night when she was about 14 years old. She wore shorts and a singlet to bed. She lay on her side facing the wall pretending to be asleep during the entire episode. The defendant came in and lay behind her in the bed. He was naked on top and had a towel wrapped around him. He pulled the back part of her pants down so they were just above her knees. He rubbed himself against the back of her legs. She pretended to be asleep and stiffened up. This went on for about five minutes until he ejaculated on the inside of her legs. He then kissed her on the forehead or on the cheek and walked out closing the door quietly. She said she did not move a muscle for a while. She could remember the smell of the semen. It made her feel sick. Finally she got out of bed and “just wiped everything away”^[46]and went outside the house to be sick in the garden. This occurred after her parents had stopped sharing a bedroom. The prosecution relies on this evidence in proof of count 3, indecent dealing.

82. [82]
    The complainant gave evidence of an earlier occasion when she and the defendant returned from Queensland to New South Wales to collect more of their belongings. During that journey, the defendant told the complainant to wear no clothes to bed in order to be warmer. The suggestion seems to be that they slept together naked in a caravan.^[47]

83. [83]
    The complainant said the defendant came into her room a second time and she again pretended to be asleep. He did the same thing. On the third occasion, and this was all within a week of the first occasion, she started to cry. He was doing the same thing to her. He stopped when she cried and asked why she was crying, telling her she shouldn’t be crying. He said “you know you don’t want mum to find out about this. You know, you don’t want mum and I to break up”.^[48]This incident is relied on in proof of count 4 on the indictment. The complainant asked the defendant why he was doing what he did. The response was along similar lines, that she did not want him to break up with her mother so her mother was not to find out.

84. [84]
    The complainant recalls another occasion when the defendant came into her bedroom. She said he was being “really nice”. She was awake and spoke to him. She said he was trying to get her to allow him to put his penis in her vagina but she would not let him, “because I didn’t want to and it hurt” and it wasn’t right. There was no sexual penetration that night.

85. [85]
    The next night the defendant came to her room again and, she said, “he basically just turned different and sort of just shoved it in there because I wasn’t – you know wasn’t – he was trying to do the soft approach first and then it didn’t work so then he just went ahead and did it”.^[49]She cried and he stopped when she did. This incident is relied on in support of count 5, rape. The complainant said she kept very quiet during the incident, holding her body rigid and stiff. She did not otherwise physically resist but her evidence was, “I’d say no, I don’t want to – I don’t want you to do this. I don’t want it, you know, and then he’s just sort of got cranky about it and just made himself do it”.^[50]

86. [86]
    Thereafter, the defendant would come into the complainant’s room “maybe once every three days, maybe once a week”.^[51]

87. [87]
    The complainant recalls that it was the defendant who drew her attention to her pregnancy. He told her he thought she had missed a period and bought a pregnancy test. She said she made up a story to tell her mother – that she became pregnant on a leadership camp in Grade 9.^[52]The family stayed at the defendant’s parent’s home the night before the termination. After the termination a form of contraception was inserted into the complainant’s arm. It was to last for three years.

88. [88]
    The acts giving rise to almost all of the remaining charges were video recorded secretly by the defendant. The recordings have been placed in evidence. At house 1, where there was no television reception, the defendant had a television set and DVD player in his room. The complainant enjoyed watching movies. It was the only form of TV available to her. Much of the sexual activity recorded and giving rise to charges occurred in that room. Other sexual activity, not the subject of charges, occurred, the complainant said, when she and the defendant went up to the block to care for the dogs.^[53]The sexual activity within the defendant’s bedroom and at the cabin at the block occurred before and after the abortion procedure in 2008. As to the frequency of sexual activity in the defendant’s bedroom at house 1, the complainant said “there was a time when it was every second day, but it usually became every single day. It was usually some time after I finished school… or mum would go to bed, or something like that”.^[54]The complainant recalled a discussion in the car with the defendant about when the sexual activity was going to stop. Her evidence was, “I kind of brought it to him when was this all going to stop. Was it when I turned 18 and I could be my own person and be – and like a proper adult and I can leave and go and – but he sort of didn’t really answer me there and he was like, we’ll see what happens…”^[55]

89. [89]
    The complainant’s evidence was that the sexual activity would occur while they were watching movies at the defendant’s instigation. The complainant said she did not refuse “to save the fights or the arguments, it was just easier to do that”.^[56]

90. [90]
    About one year after the commencement of sexual activity, the defendant showed the complainant a recording of her in the shower and of them having sexual intercourse in his bedroom. She became upset about this and wanted the recordings destroyed. He said he would keep them for safekeeping and he would not do it again. He told the complainant the recording was a one-off and he wouldn’t do it again. She was cautious about this but – until much later when living at house 3 – she did not see any more cameras so did not think he was continuing to record them.^[57]The complainant pestered the defendant to allow her to destroy the recordings. Eventually he let her destroy a disk, she said, as a reward.^[58]

91. [91]
    As to count 24, the complainant gave evidence the defendant “would always ask” whether he could penetrate her anus. She refused, that saying it hurt. Her evidence continued, “and he would say how would you know that it hurts? Have you done it before? Who have you done it with? and I’d say no, I haven’t done it. I just know it’s hurting now and I don’t want you to go any further. And he said; let me try a little bit further. I’ll go slower. But that was – and he just continued to do it and I ended up – I think I started crying because it just hurt too much, so he stopped”.^[59]Her evidence was he penetrated her more than an inch inside her body. It was put to her in cross-examination that there was never an occasion of anal sex. She rejected the proposition. The complainant gave evidence in chief that she was 14 or 15 years old at the time of the sodomy.^[60]She gave evidence of another occasion of sodomy at house 3 when she was 18 or 19 years old. That occasion does not comprise one of the charges and is outside the period of count 1. Under cross-examination the complainant agreed that she told police in a statement made 6 December 2012 that the first time the defendant tried to have anal sex with her was after he had been having sex with her for about two years. That would, of course, have placed that incident at a time when she was at least 16 years old. Accepting she said that to the police, the complainant explained that she did not then know what sodomy meant.^[61]

92. [92]
    Count 23 was particularised as penile penetration of the vagina on the same occasion as the anal penetration. Although it is highly likely such an act occurred, the complainant did not describe it in evidence. The prosecution does not seek to support the charge by inference and, in effect, concedes Count 23 must fail.

93. [93]
    The last three counts – counts 200, 201 and 202, three counts of rape – occurred, the complainant said, on one day. She was to go to a three day workshop. The complainant said that she was one of the leaders of the organisation and so it was an accepted thing for her to go to. She continued, however, “I did know that I was going away for three days and it would – that’s quite a long time from the time that I would be seeing [the defendant] and the three days was long in a sense where I’d been banned from going to certain other things that would take too long. So basically, the last sexual encounter that happened was the day before I left and it was three times is what I remember as. It was more so like a collateral sexual encounter so that everything would be ok; that I – and I’d still be allowed to go to this camp”.^[62]

Evidence of Absence of Consent

94. [94]
    Generally speaking, the complainant gave evidence that she did not consent to the sexual activity between the defendant and her. Her compliance with the defendant’s sexual wishes must be viewed in the context of the whole relationship, which includes the earlier acts of indecent dealing and a forceful act of penetration when the complainant was 14 years old. I refer below to some of the complainant’s evidence on the question of lack of consent, but do not purport to recount all evidence relevant to the issue.

95. [95]
    During examination-in-chief, while the complainant was shown an Exhibit, DVD No. 45, which captures the acts relied on in proof of counts 11-15, there was the following exchange:

“when the defendant would ask you to touch him or do things, were there ever occasions when you said no?… Yes

“And what would happen if you said no? … He would then make it into something that I had done. Like, oh, why don’t you ever come to me. Why don’t you ever touch me. You know, do you want people to find out about this?  It would always be turned back on to me as to why I wasn’t being forward with the touching and stuff.”^[63]

96. [96]
    The complainant said she did not consent to sexual activity occurring in her room at house 1.^[64]She said, “it was just something that I had to do because it was held over me. … That’s the best way I can explain it”.

97. [97]
    When asked to explain what that meant she continued,

“ .. basically, if I weren’t to go to him or if I weren’t to do what he wanted me to do there was always consequences for that. There was always something, like a threat, to say well, I will tell your mum, or later on in the piece it was I will tell your friends at school or show them what you’ve been doing. So it was always something of a fear that I had to always be and do what he wanted for me to do. Otherwise, there would be … consequences, yeah.”^[65]

98. [98]
    The complainant can often be seen, in the recordings, keeping her attention obviously on the television set. When asked about one occasion when she was looking at a video cassette case the complainant said, “I was trying to find ways of distracting myself which would sometimes get me in trouble because I wasn’t acting interested or into what was happening.”^[66]

99. [99]
    The complainant gave evidence that she did not give consent to any of the acts committed at house 1. Similarly she was asked generally about sexual activity at the house 2 and before that at a house the family rented at town A. In each case she said the activity was without her consent. “At no time throughout this whole entire period …. have I wanted this or I have consented without being, you know, had consequences to it. It’s not something I wanted at all.”^[67]

100. [100]
     The continuing fear the complainant held of the defendant was demonstrated in her evidence of the discovery of a secret camera under her bed. Although the discovery angered her to the point of taking a pair of scissors and cutting the wires the complainant then, fearing she would get in trouble for doing that, “started to chew the ends off because we had little kittens at that stage, we had three little kittens, and it just looked like they had chewed the wires away.”^[68]

101. [101]
     The complainant gave evidence that she was allowed to destroy one of the DVD’s only a very long time – “months and months” – after she was told about its existence. This, she said, the defendant kept as a hold over her.^[69]She was not aware of any recording after that. The defendant gave her a guarantee that there was no other recording.

102. [102]
     The complainant accepted, during cross-examination, the proposition that her personality is such that she would avoid conflict. In this way she was different from her half sister, Ms T. She accepted that leaving aside the sexual activity, she and the defendant had “a normal stepfather/stepdaughter relationship”. He was very good to her. He took a genuine interest in her. He taught her to ride horses and motorbikes; got her involved in work he was doing; helped her with homework and would drive her anywhere. Given his close involvement in her life, it was unsurprising that it was he who would go to the community club awards night. These propositions, the complainant said, continued “until the last day”.^[70]She accepted propositions that he would support her in fights with her mother; that he ‘was the cooler one’.^[71]Accepting all of these propositions the complainant insisted her mother also had a role – helping with homework, giving discipline and advice and generally having a parental influence.

103. [103]
     The complainant accepted that she went into the defendant’s room expecting there would be sexual activity. It was put to her she made a choice knowing that would be the result. She replied, “if you’re going to say that, then I say I didn’t have a choice, but yes, I had to make that choice”.^[72]

104. [104]
     The prosecutor followed this up in re-examination. The complainant explained:

‘Why is it that you say you didn't have a choice?‑‑‑Because I was already succumbed to the fact that he knew he could get his way if it was to start an argument. So there was either the choice of having an argument, or the choice of having a sexual act happen, and I just always chose what was easier, without the argument.

…………..

Okay?‑‑‑It was an argument, or it was the sexual act.

Okay?‑‑‑Which the argument would end in a sexual act anyway, so it was not really a choice.’^[73]

105. [105]
     The complainant also conceded in cross-examination that while sexual activity was taking place in the home, she could have alerted her sister or mother to it. She, with the defendant, hid what was going on between them. She could have brought the activity to the attention of her mother and sister. The complainant accepted these propositions but said, “it was never an option for me to do that. I was told that if I was to tell anyone he would break up with my mum, he would leave her, and that was very upsetting for me”.^[74]

106. [106]
     The complainant was cross-examined about the duration of any threat from the defendant to expose the sexual conduct by showing others a DVD. She accepted propositions that the filming was done when she was about 14 years old; about six months lapsed from the time she became aware of the recording to the time it was destroyed later. While accepting these propositions the complainant said that she would continue to ask questions about whether the defendant was recording. Also, certain remarks of his caused her to think there was more recorded material still in existence. This, she said, she always had in the back of her mind.^[75]

107. [107]
     The complainant agreed that had she alerted people such as Ms C and Ms W that she was being raped, they would have supported her. She replied, “It was none of their business”.^[76]

108. [108]
     The complainant was cross-examined about the duration of the threat from the defendant to leave her mother. She agreed it was made early in the relationship but said it continued onwards. She did not agree the threat became irrelevant after a few months - “I wouldn’t say that. Mum always depended upon him for a lot of things and it was never – it was not my position to take that away from her in any stage”.^[77]The complainant did concede nonetheless that after some time the threat had little effect. She agreed that she told the prosecutor at a conference on 17 April 2014 (shortly before trial) that the threat about leaving her mother was less effective. Notes from the conference read, “so you were at the point of, could, leave mum”. “So he threatened the tape”.^[78]

109. [109]
     The complainant gave evidence that at one stage the defendant took her car keys from her and threatened not to return them unless she was sexually compliant with him. This, necessarily, must have occurred late in the relevant period. The allegation arose in the context of the complainant driving herself to work at the restaurant. She commenced work there in October 2010. In an extract from a statement she made to police on 28 November 2011 she said, “I usually drive myself to work, but sometimes [the defendant] takes my car keys off me after we have had a fight. This is to teach me a lesson that he can take things away from me if I don’t do what he wants.”^[79]

110. [110]
     The complainant rejected suggestions put in cross-examination that the defendant never threatened to leave her mother so that she would comply with sexual requests. She also rejected the suggestion that he never threatened to show the DVD of their sexual activity to other people.

111. [111]
     The complainant gave evidence of the defendant’s increasing physical aggression. This included pushing or shoving her in and out of doors and knocking her into a wall. This evidence arose in cross-examination and there is not clear evidence about when these things occurred.^[80]

112. [112]
     The complainant agreed that she had told inaccurate things about the sexual activity to other witnesses. For example witness Ms A gave evidence that in October 2012 the complainant told her among other things the defendant threatened to leave her mother and bash her mother and bash her. The complainant agreed with other aspects of the conversation put to her but said she did not remember “the bashing part”. Indeed she said, “[he] was never violent in the sense that he would be physically bashing anybody, so no, I wouldn’t have said that.”^[81]The complainant did concede she might have exaggerated. In what is perhaps an example of making a reasonable concession as a witness, when asked whether she accepted that she said those words to Ms A, the complainant said, “well I can’t dispute that because I can’t remember so I’ll say yes to that.”^[82]

113. [113]
     Counsel put to the complainant that she was compliant with the defendant without him needing to use physical force to have his way with her. She responded, “Not physical force, no”.^[83]There are several things to say about this evidence. First, despite the concession, the complainant gave evidence elsewhere of physical violence by the defendant. One matter put to him in a police interview was that he threw knives at a wall to scare her when she was reluctant to have sex because she was too tired. This allegation was not contained in the complainant’s police statement. When defence counsel put it to the complainant, as if a prior inconsistent statement, she confirmed the event had occurred.^[84]Second, despite the concession, one can see on many occasions in the recorded sexual activity the defendant physically manipulating the complainant. This might be in his way of holding her head when pushing his penis into her mouth or having her position herself on all fours on two chairs set up in the shed at the back of the house 3 house. Third, this evidence of violence and physical manipulation sits comfortably with other evidence that supports the inference that the defendant always exercised parental authority over the complainant, who was by nature a compliant or submissive person. Fourth, the evidence confirms the complainant’s reasonableness as a witness, in turn suggesting reliability. Counsel next asked:

‘So when you said to [Ms A], “[The defendant] would come into her room and force himself on her”, that’s not right, is it?’ The complainant responded ‘Not in the sense that you’re making it, no that’s … I accept that.’^[85]

114. [114]
     The complainant was cross-examined about the meaning of certain text messages she sent to her sister, Ms T, shortly before attending a police station on 28 November 2011 to make her complaint against the defendant. The text messages were tendered as preliminary complaint evidence. That is, they were admissible, under s. 4A of the Criminal Law (Sexual Offences) Act 1978. Such evidence does not constitute proof of the commission of the offences in question but may assist in the assessment of the complainant’s credibility.^[86]So, consistency between the complaints repeated by the witnesses who heard them and the complaint given in evidence by the complainant may enhance her credibility. And the converse. The text of the messages was tendered in a schedule which included the time and date of the messages and other information.^[87]

115. [115]
     In the months leading up to her disclosure to police the complainant developed the secret relationship with Mr H. At that point, the complainant agreed, she wanted to get out of the home. She was very upset upon finding the camera under her bed. She took photographs of the camera, discs and other things in the house before leaving for a leadership camp, intending to leave the home upon her return. At the camp she sent the photographs to her sister. While at the camp, on 25 November 2011, she had long text message exchanges with her sister.

116. [116]
     Defence Counsel cross-examined the complainant about several messages, the following four in particular:

117. [117]
     As to the last of these four messages, the complainant explained her meaning: ‘He’s unwell. That’s all I can say. I’ve looked past all of this and understand that he – he’s a person who’s always right. He cannot see past that he is wrong.’^[88]

118. [118]
     The complainant agreed she was considering the defendant’s feelings even as she was planning to complain to police.^[89]

119. [119]
     With reference particularly to message 322 counsel put and the complainant accepted that she intended to leave the defendant with the impression that she loved him.^[90]She went on, ‘I was never wanting this to happen. It was pretending to keep the peace.’^[91]

120. [120]
     In re-examination, the complainant was asked to explain what she meant when she said, ‘pretending to keep the peace’.

‘So what do you mean "pretending to keep the peace", what's that all about?‑‑‑Well, if I was to not pretend, it would have come out in a different way. I would have been ‑ I didn't want to be there. I treated it like it was a chore, but I had to pretend that I was enjoying it, and I was asked by him numerous times to enjoy;  look interested;  don't be a starfish. You know, please engage. All this kind of stuff. So it was a big act of pretending to try and make his needs happy.

All right. And what would happen if you didn't pretend?‑‑‑There would be an argument, or he'd say, oh, you never come to me. You never look interested. So it would start an argument straight‑up, so I just gave that up and just‑‑‑

Okay?‑‑‑Yeah. Avoided the argument altogether.’^[92]

121. [121]
     After the complainant’s mother came into her room, discovering the defendant and her, the complainant agreed that she continued to engage in sexual activity with the defendant, ‘albeit reluctantly’.^[93]She treated it like a chore. She took part, it was put to her, out of a sense of obligation, but freely and voluntarily. The complainant’s qualified response was, ‘With consequences’.^[94]Nonetheless, she accepted propositions that, at that time, the threats, ‘about the showing of the tape and your mum’ were long gone.^[95]So, the complainant accepted, there was ‘just a sense that you should – you felt you really had to do it?’

122. [122]
     Counsel referred to part of message 346 – ‘it was rape for like the first two years- after that I just gave up the fight - would I be shamed? And what about [Mr H]? This is the shit that eats me inside - because I gave up the fight- he has a chance of getting off?’ – and put to the complainant that she ultimately went along with what was happening, like doing a chore. She replied, ‘If you read it in that context, yes. I went along with what was happening. I gave up the fight.’^[96]

The defendant’s interview

123. [123]
     The defendant was interviewed by police on 28 November 2011, the same day the complainant went to the police. Before the interview, police had executed the search warrant at house 3. Mr Davies submitted the defence case was primarily, in effect, what the defendant told the police - that sexual intercourse occurred by consent and only after the complainant turned sixteen years old.

124. [124]
     The defendant admitted having a sexual relationship with the complainant for about three years, since 2009. Such account as he gave of the circumstances leading to the relationship and the activity it involved was improbable and unpersuasive and, most relevantly, displayed a distorted logic that, I consider, underpinned his conduct of the whole relationship. His opening explanation as to how the relationship came about was that it developed quietly, ‘[She] had quite a few issues, she was very sexually active when she was younger. Started about me tryin’ to stop her from being sexually active I think.’ Later, he wondered whether she wanted to spite her mother.

125. [125]
     He told police he heard about her sexual promiscuity from her school when she was fourteen or fifteen years old. She was ‘tampering with boys in the classroom and out of the classroom’ and was promiscuous at parties. She was easily led into trouble. The defendant said the complainant returned from Sydney, having stayed with her sister for six or eight months, a changed person. That is, she was ‘very forward, very promiscuous I suppose’. Although he tried to talk to her about it, ‘she denied that something had happened in Sydney.’ Later in the interview, when pressed for his sources, the defendant said, ‘no-one specifically came to me and said, you know, your daughter’s doing this.’ He said he saw it in the way she conducted herself at parties. In this regard, he referred to Mr H, who was not involved with the complainant until 2011, probably around the time she was nineteen years old.

126. [126]
     The defendant told police that sexual intercourse first occurred when the complainant was sixteen years old, just prior to coming town B. As to activity before intercourse took place, he said, ‘it sort of took me quite a while …. to have intercourse with her’. He knew it was wrong but she was very persistent, becoming more demanding of him after the abortion. That is, the defendant admitted there had been touching before the complainant was sixteen.

127. [127]
     The defendant told police he put a camera in the bathroom just for ‘clandestine viewing’. The camera in the complainant’s bedroom was placed there so he could monitor her internet use.

Defence counsel’s submissions.

128. [128]
     Mr Davies made, with respect, many reasonable and some persuasive submissions, which I have attempted to encapsulate in the following paragraphs.

129. [129]
     He submitted that the complexity of the relationship is at the heart of the case. The complainant has complied with the defendant, even if it was an unhappy compliance. The complainant’s evidence about what occurred and how she felt about what occurred is reconstructed through “shaded lenses”, in her present state of awareness that the actions should not have happened. It is conceded that the defendant was also “looking through a prism” when he spoke to police.

130. [130]
     The tattoo the complainant had drawn on her body at about the time of her 19^thbirthday highlights the complexity of the relationship between her and the defendant and goes to the question, at least, of mistake. The tattoo “I live for my family” must be understood in its context. The complainant’s mother was effectively isolated from other members of the family. Her half sister was there and not there. The dominant family person was the defendant. Part of the complainant was in a positive relationship with him.

131. [131]
     The evidence of the complainant’s mother was that she was told the activity between the defendant and complainant started in house 2. The complainant told her mother it was a one off event. Crucially, after the mother walked in and saw the two of them in the defendant’s room, she told the complainant that if she did not want this to happen, it was rape. The complainant’s mother said this to the complainant two more times. After this time the crown case could not succeed, at least because mistake could not be excluded. The complainant’s evidence was that nothing really changed between her and the defendant after the mother saw them. If this is so, it demonstrates there was no lack of consent after, as well as before, the occasion on which the mother saw them.

132. [132]
     The primary defence case is as the defendant told the police during the police interview. Alternatively, it was submitted that, even accepting the complainant’s evidence, there eventually came a point where there was no lack of consent and/or it is impossible to exclude mistake on behalf of the defendant as to consent.

133. [133]
     The complainant’s sister, was a very different personality from the complainant. She was not so reasonable. Her evidence is largely irrelevant. What was relevant was the text exchange between them, particularly as it incorporates the complainant’s unreconstructed and unguarded assessment of her own presentation to the defendant. Detailed reference was made to text messages numbers 266, 322, 237 and 346. The text messages contain statements that are inconsistent with the complainant’s evidence – “threats to her (mum) and me”; and proclaim the complainant’s own view that “it was rape for the first two years” and after that she “gave up the fight”.

134. [134]
     The complexity of the relationship is highlighted again during the video in which one can see the complainant take her Year 9 textbook into the defendant’s room. Their interaction includes his helping her with homework and serious sexual conduct.

135. [135]
     As to the question of consent, a proper understanding of the evidence would lead to the conclusion that the complainant consented to the sexual activity, even if reluctantly. Choosing to live without conflict, even if that required a bit of sacrifice, which was the effect of the complainant’s evidence, did not amount to proof of absence of consent to the sexual conduct.

136. [136]
     The defendant accepted that he was a controlling person. But the evidence was not that his attempts to control the complainant were always successful. She was able to use Facebook, despite her evidence that he told her not to. She was able to go out with friends and drink alcohol. She was filmed by the defendant when she was drunk. She filmed a friend who was drunk at their home. She was able to hector or annoy the defendant on the question of allowing her to destroy the disk. The complainant is an intelligent and aware person. She was not susceptible to such control as the prosecution seeks to prove the defendant had on her. She clearly wanted the house 3 and it was bought with her on the title. The defendant brought her coffee in the morning and bought significant things for her, including a car. The relationship was complex and it is insufficient to simply describe it as one where he had control.

137. [137]
     Although an honest witness, the complainant is not a reliable one. The clearest example was her unreliability on the incident leading to a charge of rape at the defendant’s parents’ house. She proceeded on a wrong assumption concluding that, because intercourse was regularly had at the defendant’s parents’ home, it must have occurred on the evening before she underwent the termination of pregnancy. Once her inconsistent statement was pointed out to her – made in April to the prosecution – she had to concede the possibility that there was no intercourse on the night before her termination.

138. [138]
     Wherever there is doubt about whether she was under 16 years at the time of an incident, it must be given to the benefit of the defendant.

139. [139]
     More than once the complainant went to the defendant’s room surely knowing that there will be sexual activity there when she does. No force was used to have her engage in sexual conduct. She lived in a rural community where others supported her – women of substance who nominated her for awards and would surely have supported her upon any complaint – but she did not make any complaint. Not only did she not complain, but she did nothing which would allow the sexual activity to be discovered. This submission has more weight as time goes by. Apart from the occasion on which the mother walked in and which led to her advice to the complainant, the mother can be seen walking in on an earlier occasion. Yet there was no complaint.

140. [140]
     The complainant goes to the police at the age of 19, at a time when she has commenced a relationship with Mr H, after she has communicated with her sister and, crucially, after she has found the hidden cameras and has had enough of the defendant. She chose when to stop the relationship and go to the police. She was able, had she wished to, to choose to stop the relationship earlier.

141. [141]
     The crown’s reliance on threats has a short life span. The complainant said as much to the prosecutor during the conference on 17 April 2014, there being a note to the effect that the threat concerning the mother was getting old. The threat of the defendant exposing their conduct by revealing the recording would have evaporated around six months after revelation of the recording. This was likely to be about six months after sexual intercourse commenced. Her evidence was that she accepted the defendant’s undertaking that he would not record any more sexual activity. In that case there was no continuous threat to expose a recording.

142. [142]
     The complainant’s own statements in the text messages confirm that she was acting in front of the defendant to make him think that she was happy in the relationship. On top of that she regularly wrote notes to him demonstrating her affection for him. As well, the tattoo she had placed on her body was consistent with her overall presentation as being happily engaged in their relationship. She feared that he would consider her a backstabber for complaining to police when she had, for so long, presented herself as willing in the relationship. In all the circumstances the prosecution cannot exclude that the defendant honestly and reasonably, if mistakenly believed, probably from the time the complainant was 16 years old, that she was consenting to the sexual activity.

143. [143]
     Many of these points are dealt with in the body of these reasons. I am alive to the possibility that the complainant, now a more mature woman, is looking back in anger and, as Mr Davies submits, through shaded lenses. I am nonetheless entirely satisfied of the reliability and truthfulness of her evidence for reasons set out below.

144. [144]
     The relationship between the complainant and defendant is indeed central to the resolution of the key issues in the case.

Conclusions on the evidence

145. [145]
     I accept the complainant's evidence. I found her a compelling witness. I have already given examples of her preparedness to make reasonable concessions. The evidence concerning count 6 is another example. It is clear the complainant believes - and it is quite possible she is right - that on the evening before she underwent an abortion, staying at the defendant's parents' home, aged 15 and pregnant to the defendant, the defendant had sexual intercourse with her. Her evidence in chief was not that it happened but that, in effect, it must have happened:

‘And when you stayed at his parents' house… did anything happen between you and the defendant on that night?‑‑‑There was a lot of times that we did stay up at his mum and dad's house, that he would come into my room and have sexual intercourse with me, even though I tried ‑I thought it was so disrespectful and I hated it and I didn't want him to do it, but he was very adamant about it, but ‑and I would say it would happen ‑it would have happened on that night, even though he was in the same room as mum.’^[97]

146. [146]
     She accepted that during the conference with the Crown prosecutor a few days before the trial she was ‘not entirely sure if the sex had taken place on that night’.^[98]But she had considered the matter between then and trial and ‘on further recollection’ felt it had happened.^[99]Yet under cross-examination she agreed she had no actual memory of the event but had effectively inferred that it must have occurred. So, she accepted the proposition put by counsel:

MR DAVIES:   Okay. Let me put this to you:  you cannot say ‑ but you have no memory of having sex on that night before the termination, do you?‑‑‑No, I cannot recall it, no.

No. So because you have no memory of it, you cannot say with certainty that, in fact, it took place?‑‑‑Yes.

And you would agree that it's a reasonable possibility that, in fact, on that particular night it didn't happen?‑‑‑Yes.^[100]

147. [147]
     The complainant gave cogent and careful evidence. Her position, that she did not give free and voluntary consent to the sexual activity the subject of the charges, was amply supported by the recorded material.

148. [148]
     I reject the defendant’s account of the relationship as having been voluntary on the part of the complainant and having involved sexual intercourse only after she reached the age of sixteen. As I will discuss below, the school photographs and various physical features the complainant pointed out as obvious in the recordings make it plain beyond reasonable doubt that she was younger than sixteen when the defendant had sexual intercourse with her.

149. [149]
     I have set out the meaning of 'consent' as it is defined for the purposes of deciding whether the complainant did not freely and voluntarily give consent and whether the defendant was acting under s. 24 mistake. I think it highly likely that the complainant did not consent to any of the sexual conduct. Judged in the context of the whole relationship - in effect, a father/daughter relationship of long standing; the sexual relationship - commencing as it did with force when the complainant was young; the relatively weak position of the complainant's mother emphasising the strength of the defendant's parental position, even if the explicit threats to leave the mother and to expose the conduct to the complainant's friends eventually abated, I am satisfied beyond reasonable doubt the complainant did not consent, as the term is defined, to the sexual penetration and sexual assaults at least until some time well after the complainant's 18th birthday. I find it hard to define the time, but it falls somewhere after the complainant had finished school, was working at the restaurant and driving her own car. It is likely this time arrived after the family moved to house 3 but there is not clear evidence as to when the defendant gave the complainant the car. She turned 18 years old in September 2010, before finishing school, while still living at house 2. She soon started work at the restaurant, but there is clear evidence of the defendant's continued strict supervision of the complainant well into 2011. Watching the recordings of sexual activity in the backyard shed and her own room at house 3 one is struck by the sense of mechanical submission in the complainant's behaviour and the control over and manipulation of the complainant the defendant exercises for his sexual satisfaction.

150. [150]
     I tend to think the complainant never gave consent. She always acted under, at least, the compulsion of the defendant's distorted form of parental authority. But I have already qualified that view. Mr Needham, the prosecutor, concedes the reasonable possibility that after Ms M discovered the sexual relationship, at house 3, and told the complainant the conduct need not continue against her will, the defendant was left with the honest and reasonable but mistaken belief the complainant was giving consent to the sexual activity. There is, with respect, some force in the concession. Moreover, given my earlier remarks and to give the defendant the benefit of any lingering doubt about when such a belief might have been reasonable, I am satisfied beyond reasonable doubt that the complainant did not consent and the defendant did not have an honest and reasonable mistaken belief that she was consenting to any sexual acts before her 18th birthday. Any belief asserted before that time, if honest, which I doubt, was not held on reasonable grounds. A claim to believe on reasonable grounds that the complainant was giving free and voluntary consent is unrealistic, ignoring the circumstances of the relationship, the manner in which the sexual activity commenced and, among other things revealed in the evidence, the manner of complainant's participation.

151. [151]
     I am not satisfied beyond reasonable doubt the evidence excludes s. 24 mistake once the complainant turned 18 years old. I have already outlined some of the reasons for that: the complainant would have finished school shortly after turning 18; she soon worked at the restaurant; at some point which is undefined by evidence, she was given her own car; she had earlier expressed the notion that upon reaching 18 years she would enjoy a more independent status. Although I accept the evidence of the defendant’s controlling and manipulative conduct even after the complainant turned 18, I conclude that it is reasonable to allow him the benefit of the doubt from then.

152. [152]
     On this basis, the counts which arise out of acts at house 3 fail. Counts 170 – 172 and count 175 occurred at house 2. It is impossible to tell when they occurred. The evidence does not exclude the possibility they occurred after the complainant’s 18^th birthday. She gave evidence the family arrived at house 2 ‘mid to late’ in the year she was in Grade 11.^[101]She was probably still 16 years old then but would have been 18 years and about 5 months when the family moved to house 3.

Time

153. [153]
     Much time was spent taking the complainant through excerpts of the recordings in an attempt to date the events recorded. The complainant was able to comment usefully on the approximate time of most recorded incidents. It is highly probable a great many of the offences occurred before the complainant turned 16.

154. [154]
     A certain use of bobby pins confined count 28 to grade 8 or 9. The length of hair reliably limits counts 37, 38, 43, 46, 47 to as early as when the complainant was in grade 8. The presence of a brown school bag used only in year 8 and the length of hair effectively limit counts 48, 50,100-105 to that year. The presence of a black alarm clock in her room, which was replaced by an ipod dock in year 9, indicates count 56 occurred up to when the complainant was in year 9. In the recording relevant to count 73 and 74, the complainant noticed the top she wore at netball in grade 9 only. The recording relevant to counts 79 – 84 shows the complainant’s hair length as at mid-year to end of year 9. A certain hair style worn in grade 8 and 9, perhaps early grade 10 indicates the period during which count 95 occurred. A drawing on one hand at the junction of the thumb and forefinger, like a tattoo of a little star, confined Counts 114-117 to grade 8 or 9. The recordings relevant to Counts 122 and 163 show the complainant wearing the netball shirt she wore in grade 10 (in all likelihood the season finished before her 16^th birthday). The complainant is seen with her year 9 maths book in the recording relevant to counts 125-126. Hair in plaits indicates Count 134 occurred when the complainant was in grade 8 or 9.

155. [155]
     This evidence, which would permit the finding that the offences mentioned occurred when the complainant was as young as 14, suggests that she was fully sexually corrupted by the defendant by the time she was 16 years old. I have taken this evidence into account when considering the issues of proof of lack of consent and exclusion of s. 24 mistake, particularly the latter.

156. [156]
     Given my findings with respect to absence of consent and s. 24 mistake, I need only make findings about the timing of the events concerning the counts of indecent dealing.

Counts 1 and 2 – maintaining an unlawful sexual relationship

157. [157]
     It is not necessary that I traverse the history of s. 229B to say that the essence of the charge is the quality of the relationship. After all, the primary finding a jury must make before a conviction is open is that an unlawful sexual relationship existed. The prescribed age is 18 years if the relationship involves an act of sodomy. Otherwise the prescribed age is 16 years.

158. [158]
     The effect of the complainant’s evidence is that the act of sodomy occurred after she turned 16 years.^[102]I have referred above to some of the complainant’s evidence supporting Count 24. Unsurprisingly, given my findings with respect to lack of consent and absence of s. 24 mistake concerning the sexual activity up to the complainant’s 18^th birthday, I am satisfied beyond reasonable the defendant maintained an unlawful sexual relationship with the complainant and that the relationship involved an act of sodomy. I so conclude not simply because I find an act of sodomy occurred but because it seems to me to be a proper assessment of the quality of the relationship to say that it involved the act of sodomy. According to the Shorter Oxford Dictionary, ‘Involve’ means, among other things, to include; to contain, imply. Another more dramatic meaning is to roll or enwrap in anything; to enfold. Obviously the act of anal intercourse was not the only unlawful sexual act I find occurred between the defendant and complainant. I do not think, that to prove the unlawful sexual relationship ‘involved’ sodomy, such act need be the only kind of sexual act, or the most frequent or regular act or even a substantial part of the relationship. The evidence would not support such a finding.

159. [159]
     In the circumstances, it is unnecessary to return a verdict on count 2.

Indecent dealing charges

160. [160]
     I am satisfied beyond reasonable doubt – because I accept the complainant’s relevant evidence - that the acts alleged in counts 3 and 4 occurred, that the acts were indecent and that the incidents occurred when the complainant was under 16 years old.

161. [161]
     The acts alleged in the balance of the indecent dealing charges are recorded. I have watched the relevant parts of the recordings. It is admitted the acts occurred. I am satisfied, by the complainant’s evidence about her age^[103]when incidents occurred and from my viewing of the recordings and the school photographs, that the events occurred when the complainant was under 16 years old.

Rape charges

162. [162]
     It is not conceded by the defence that the recordings relied on to support counts 58 and 63 show an act of penetration. I think the point is well taken. It is impossible to be satisfied, in each case, that the defendant has penetrated the complainant’s vagina with his penis, as particularised. It is highly likely that the complainant is under the age of 16 years at the time of the incidents depicted, given her evidence about the sunburn evident in these pictures^[104]and the photograph of her holding her niece.^[105]It is unnecessary to decide that because I am satisfied that the depicted acts relevant to count 58 amount to a sexual assault. That is, I am satisfied the complainant did not consent to the application of force implicit in the defendant’s manner of handling the complainant shown in the pictures and given her age and all of the matters I have referred to above there is no room for doubt on the basis of s. 24 mistake. I am not satisfied any conviction should arise from the acts depicted in support of count 63. Perhaps that is only because of the strength of the other material, but it is sufficient to say that, taken in isolation, the acts shown do not satisfy me beyond reasonable doubt the defendant is guilty of sexual assault or indecent dealing.

163. [163]
     I have referred above to the evidence led in support of count 5. I am satisfied beyond reasonable doubt the incident of penetration occurred as described by the complainant and she did not consent to it. No question of s 24 mistake arises on the evidence.

164. [164]
     As to the balance of the rape charges, I have examined the recordings and considered the complainant’s evidence. But for count 23, I am satisfied the acts relied on to support the charges occurred. The defendant will be convicted of counts arising before the complainant reached 18 years. This includes count 24.

165. [165]
     I am satisfied beyond reasonable doubt of guilt of the 4 counts of recording in breach of privacy.

166. [166]
     I am satisfied all of the acts relied on in proof of the counts of sexual assault occurred. I intend to convict the defendant of this offence in lieu of the charge of rape in count 58. In accordance with my findings on the issue of s. 24 mistake, counts of sexual assault arising after the complainant’s 18^th birthday will fail.

167. [167]
     In view of the above it is unnecessary, at this stage, to consider the alternative verdicts.

168. [168]
     I find the defendant guilty of:

Count 1 – maintaining a sexual relationship with a child under 18 years

Counts 3, 4, 7, 9, 12, 14, 17, 19 and 20 – 9 counts of indecent treatment of a child under 16 years

Counts 5, 8, 11, 13, 15, 21, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 46, 47, 48, 50, 52, 53, 57, 59, 61, 62, 64, 65, 68, 69, 72, 74, 76, 78, 79, 81, 82, 83, 84, 85, 86, 87, 89, 94, 96, 98, 101, 104, 106, 108, 110, 113, 114, 115, 119, 121, 122, 123, 124, 126, 128, 130, 132, 134, 136, 140, 142, 144, 146, 147, 148, 151, 152, 153, 155, 157, 159, 160, 161, 164, 165, 166, 167, 168, 169, 174 – 95 counts of rape

Counts 54, 55, 70 and 138 – 4 counts of Recording in breach of privacy

Counts 32, 45, 51, 56, 58, 60, 71, 73, 75, 77, 80, 88, 90, 91, 92, 93, 95, 97, 99, 100, 102, 103, 105, 107, 109, 111, 112, 116, 117, 118, 120, 125, 127, 129, 131, 133, 135, 137, 139, 141, 143, 145, 149, 150, 154, 156, 158, 162, 163, 173 – 50 counts of sexual assault.