R v BNC[2018] QDC 79

DISTRICT COURT OF QUEENSLAND

Proceedings

1. [1]
   BNC is charged on indictment number 249 of 2015 before the District Court at Ipswich with the following offences:

Count 1

That between the thirty-first day of March 1992 and the thirty-first day of December 1994 at Mount Tarampa in the State of Queensland, BNC being an adult maintained a relationship of a sexual nature with ML a child under 16 years.

And in the course of the relationship BNC raped ML.

And in the course of the relationship BNC unlawfully procured ML a child under 16 years to commit an indecent act.

Count 2

That on a date unknown between the thirty-first day of March 1992 and the thirty-first day of June 1992 at Mount Tarampa in the State of Queensland BNC wilfully and unlawfully exposed ML a child under 16 years to an indecent act by RG.

And ML was under 12 years.

And ML was to the knowledge of BNC his lineal descendant.

And BNC was the guardian of ML.

Count 3

That on a date unknown between the thirty-first day of March 1992 and the thirty-first day of June 1992 at Mount Tarampa in the State of Queensland BNC wilfully and unlawfully procured ML a child under 16 years to commit an indecent act.

And ML was under 12 years.

And ML was to the knowledge of BNC his lineal descendant.

And BNC was the guardian of ML.

Count 4

That on a date unknown between the first day of January 1993 and the thirty-first day of December 1993 at Mount Tarampa in the State of Queensland BNC raped ML.

Count 6

That on a date unknown between the first day of January 1993 and the thirty-first day of December 1994 at Mount Tarampa in the State of Queensland BNC raped ML.

2. [2]
   The defendant has pleaded not guilty to those charges. As a result of the no jury order I made on 8 June 2017,^[1]the defendant’s trial on these charges was to proceed before a judge sitting without a jury. The trial proceeded before me on 3 and 4 April 2018. Before the close of the prosecution case, a nolle prosequi was entered in respect of count 5 on the indictment and the defendant was formally discharged in respect of that count.

3. [3]
   I have reached the conclusion that the defendant should be found not guilty of all of the remaining charges. These are my reasons.

Prosecution case/particulars

4. [4]
   The complainant, ML, was born on 26 February 1985.^[2]ML is the natural daughter of the defendant. Her mother is FP, and her sister is RG (DOB 13 May 1988).^[3]The charges reflect allegations that the defendant sexually abused his daughter, ML, during a period when she was aged between 7 and 9 years, and on occasions he also involved his daughter, RG, in this conduct.

5. [5]
   Counts 2 and 3 were particularised as an occasion the defendant had each of his daughters straddle his face and attempt to urinate in his mouth. Count 4 was said to be an occasion the defendant had sexual intercourse with ML on his bed. Count 6 is said to be another occasion the defendant had sexual intercourse with ML. Count 1 is said to reflect each of the other counts and other uncharged sexual activity committed against ML.

6. [6]
   It is necessary to set out the evidence in some detail.

Evidence

ML

7. [7]
   ML said she lived at Mount Tarampa from when she was aged about 4 years until she was about 14 years. She lived there with her father, mother and sister.^[4]

8. [8]
   ML said her father sexually abused her between ages 7 and 9.^[5]She said this included him having her masturbate him, his having sexual intercourse with her at least twice and possibly on more occasions, his having ML and RG remove their pants and play a chasing game on the bed, and on one occasion having ML and RG both straddle his face and attempt to urinate in his mouth.

9. [9]
   ML described the event relied upon as count 4. She said this involved sexual intercourse. She said she was aged 8 and it occurred in her parents’ bedroom. She said she was lying on her back with her father on top of her. She said he was inside her and thrusting in and out which caused her pain, and he withdrew and “came” on the bedspread.^[6]She said on this occasion her sister was in the bedroom but “managed to run out just before it happened”.^[7]She said she was in grade 3 at this time.^[8]She said she did not tell anyone what had actually happened but did complain to her mother a couple of days later that she had a sore private part. She said her mother took her to the doctor as a result.^[9]

10. [10]
    ML described another similar occasion which is relied upon as count 6. She said this event occurred just before she turned 9, also in her parents’ bedroom. She said on this occasion she recalled later going to the toilet and seeing “white stuff” in her pants.^[10]

11. [11]
    ML also described an occasion when her father had both ML and RG straddle his face and attempt to urinate in his mouth. This incident is relied upon as counts 2 and 3. She said she was aged 7 and in grade 3 when this occurred. She said her father was lying on his bed on his back. She said her sister RG, who had clothing on her top but no pants on, first straddled his face. ML said RG was facing towards her father’s feet and ML was then standing next to the bed. She said RG was unable to urinate, so her father asked her to try. ML said she then straddled her father’s face in the same position but was also unable to urinate.^[11]She said this was the only occasion her father asked her to urinate on him.^[12]

12. [12]
    ML also described other sexual activity. This activity, together with the specific allegations set out above, are the basis of count 1. ML said there were some incidents where her father would lie on the bed with his legs over the side and have her masturbate him to ejaculation. She said this occurred roughly once per month between ages 7 and 9.^[13]She said she believed there were more than two acts of sexual intercourse but could not remember how many or any further detail of them.^[14]ML said the activity first started when her father asked her and RG if they wanted to play a game and took them into his bedroom and removed their pants. She said this led to a “chasey” game on the bed. She said the activity eventually led to sexual things like “rubbing him until he ejaculated”. She said sometimes things happened with both her and her sister present and other times just with ML on her own.^[15]She said the activity commenced when she was aged 7 and stopped when she was aged 9.^[16]

13. [13]
    ML said she first told her mother and sister about what had happened about two months before providing a statement to police in May of 2014.^[17]She said she first told her mother alone but could not recall the detail of what she had told her.^[18]She said her sister arrived a short time later and she also told her, in the presence of her mother, what happened. She said she described having to urinate in her father’s mouth, masturbating him and his raping her. ML said her sister replied she remembered the urination and masturbation happening.^[19]

14. [14]
    In the course of ML’s evidence in chief, the following exchange occurred:

Right. Okay. So you’ve told us about that episode of attempting to urinate on him. You’ve told us about two episodes of penile vaginal intercourse, and you’ve told us about a number of episodes of masturbating him?‑‑‑Yes.

All right. Apart from those things, did any other sexual or indecent behaviour occur between the two of you?‑‑‑No.^[20]

15. [15]
    In cross-examination, ML accepted that her parents had separated in 1999 and her father moved from Mount Tarampa to a house at Brassall. She acknowledged she moved with him of her own choice.^[21]ML said while living at that address she made a complaint to her father that she had been sexually interfered with by an Aboriginal person. She acknowledged her father had then taken her to the police station and she had reported that to police, not in the presence of her father. She acknowledged she did not then complain about her father’s abuse of her.^[22]It was suggested to ML that was because she did not then have any memory of her father’s abuse. ML denied that was true and said in effect the reason she had not done so was that she had spent years trying to pretend it did not happen.^[23]

16. [16]
    ML also accepted in 2000, she was aware her sister RG complained about sexual abuse perpetrated upon RG by her father. ML admitted she had been asked at that time whether her father had ever sexually abused her, and she denied he had. In cross-examination the following exchange occurred:

All right. And you – your mother asked you if there was anything that had ever happened to you between you and your dad in a sexual way, didn’t she?‑‑‑Yes, she did.

And you said no?‑‑‑Mmm.

And that was the truth, wasn’t it?‑‑‑Yes.

All right. And your mum asked you that in – it must’ve been around about July of 2000; correct?‑‑‑Yes. It was the same night that RG came forward.

Right?‑‑‑I remember because I had gone to bed early, not feeling well, and the next thing I remember is my mother coming up the stairs and asking me if anything had happened.

And you told her no?‑‑‑That’s correct.

And you’ve told us today that was in fact the truth, no?‑‑‑Yes.^[24]

17. [17]
    Further, ML acknowledged that her father went to prison on 15 October 2001, as a result of his abuse of RG, and was released in about July 2002.^[25]She said she then returned to live with her father by her own choice.^[26]ML acknowledged that in July 2002, after concerns were raised about her living with the defendant, she was interviewed by a school guidance officer and said her father had not committed any sexual abuse upon her.^[27]She also admitted telling the guidance officer she felt safe living with her father.^[28]ML denied she told the truth to the guidance officer and maintained she then recalled these events but was trying to push those memories away and was ashamed and confused.^[29]

18. [18]
    ML also acknowledged that around the same time she was interviewed by an officer from the Department of Communities during a home visit and told them she had not been sexually abused by her father and had made her own decision to live with him.^[30]ML accepted she had ongoing contact with her father in the following years including her being a bridesmaid at his wedding in 2003, introducing her boyfriend to him in 2004, visiting him from time to time, and seeking his assistance with issues she had with Centrelink in 2005.^[31]

19. [19]
    ML also accepted that in 2008 she had surgery, under general anaesthetic, to rupture her hymen. She accepted that this was because her hymen was then still intact which made it impossible for her to have sexual intercourse and caused pain upon attempts at penetration.^[32]

20. [20]
    ML acknowledged she first approached police on 24 March 2014, and spoke to a police officer McWha. She said she then had counselling sessions at the Centre Against Sexual Violence on 9, 14, 23, and 30 April 2014; and 9, 14, and 18 May 2014. She then gave a statement to police on 21 May 2014.^[33]ML acknowledged that when speaking to a counsellor, she described her memories of her father’s abuse as “feeling unreal”, and “vague”, and was asking herself whether they really happened.^[34]On one occasion she described to the counsellor that she had blacked out and realised her father was on top of her.^[35]

21. [21]
    ML said it was while watching a news broadcast on TV about the Daniel Morcombe case that she first had the “revelation” of her father’s sexual abuse and she experienced panic attacks and flashbacks which “brought the memories suddenly forth”.^[36]ML agreed that she had no memory of the sexual abuse until seeing the Daniel Morcombe story when she began to have flashbacks and visions of her father engaging in sexual intercourse with her. She then suffered a panic attack.^[37]She acknowledged her police statement read “In the middle of March 2014, I came to realise that I had been abused”.^[38]ML denied that she had not had any memory of these things before then but said she had tried to suppress them. She said the memories became more vivid after seeing the TV story.^[39]She admitted she previously described these memories as dreams and did not know if they were real but said she now understood as a result of her counselling that it was possible she dissociated due to the distressing and traumatic nature of the events.^[40]ML acknowledged that the therapy she had received had taken her from a state of uncertainty about whether these were dreams, to an acceptance that they were real.^[41]ML also acknowledged that she had dreams of being attacked and raped by strangers prior to remembering being raped by her father.^[42]

22. [22]
    ML admitted speaking to police officer McWha on 24 March 2014. ML admitted telling officer McWha that she had complained to her mother on 16 March 2014 and told her mother “I couldn’t remember if he did touch me, but I think he did.” ML was asked whether that was a truthful statement and replied “It’s half the truth and half not. … I wasn’t sure if I would be believed. That’s why I worded it that way.”^[43]

23. [23]
    In relation to her account of the events relied upon as counts 2 and 3, ML acknowledged that although she had given evidence of what her sister was wearing, she had not included that detail in her police statement. She said that was because she was not asked to describe that clothing before.^[44]Also, in respect of this same incident, ML acknowledged she had not described in her police statement that she was standing to the side of the bed.^[45]ML also accepted she did not describe in her police statement, or to the prosecutor prior to giving evidence, that on the occasion relied upon as count 4, her sister had been in the room but left just before the act of intercourse.^[46]

24. [24]
    It was suggested to ML that the defendant had not sexually interfered with her at any time. ML denied those suggestions.^[47]

RG

25. [25]
    RG is the younger sister of ML. RG said on 16 March 2014, her sister ML complained to her about being sexually abused by their father. This complaint was made at her mother’s place. RG said ML told her:

… she remembered him molesting and raping her, and she also told me that I was present at the time, and asked me if I remembered, and I said that I did, because she went into specific detail about certain instances where he would have us stroke him, and where he would have us urinate in his mouth.^[48]

26. [26]
    RG went on to explain that she recalled an occasion, when she was aged 4, when her father asked she and ML to urinate in his mouth. She said this occurred at the house at Mount Tarampa. She said he asked them both to take off all of their clothes and play a game of “chasey” on the bed. She said her father then lay on the bed and she got on top of him and placed her vagina over his mouth. She said she was facing towards her father’s head, was unable to urinate and so got off. She said ML then positioned herself the same way but also did not urinate and then got off.^[49]RG also said she could recall her and ML together stroking her father’s penis whilst at the Mount Tarampa address. She could not recall how old she was at that time.^[50]

27. [27]
    In cross-examination, RG acknowledged that in 2000, she complained to police about being sexually abused by her father. RG agreed she then “gave a completely detailed account of all of the things” that she could remember.^[51]RG acknowledged she did not complain about the event where she and ML were asked to urinate in their father’s mouth, or of any sexual activity involving ML being present.^[52]RG said she did not remember these things when she complained to police about her own abuse. She said however, her memory was instantly jogged in 2014 by ML recounting those things.^[53]RG said she was aged 4 at the time of the events involving ML and thought she was aged 5 at the time of the offending against herself.^[54]The explanation given by RG as to why she did not complain in 2000 of the events involving ML was that she was “terrified”.^[55]RG also acknowledged that she was present when her mother asked ML in 2000 whether their father had abused ML and ML said he had not done so. RG said she did not then volunteer anything about the events involving ML.^[56]

28. [28]
    RG acknowledged that she and ML were very close and had regular contact between 2000 and 2014.^[57]RG accepted that her police statement recording the conversation with ML, when the disclosure was made, included ML asking her “Will you help me? Because you were there”, and her replying “I’ll help you with anything you need”.^[58]RG denied the suggestion that she was prepared to tell lies about witnessing sexual offences involving ML because her father had also sexually abused her.^[59]RG also denied that her allegations were untrue.^[60]It was suggested to RG that she had not included in her police statement witnessing ML stroking her father’s penis, but RG denied that was true.^[61]RG also claimed she told the prosecutor, in conference prior to giving evidence, she had witnessed ML masturbating their father.^[62]An admission was made by the prosecution that RG had not disclosed that fact in the only conference held on 28 March 2018.^[63]

FP

29. [29]
    FP is the mother of ML, born on 26 February 1985; and RG, born on 13 May 1988. FP was married to the defendant who is the father of both.^[64]FP said that her marriage to the defendant ended in about 1999 or 2000, and up until that time they lived with their daughters at Mount Tarampa.^[65]FP said that when ML was in grades 1 to 4, she worked at different times to her husband and the children were frequently left in the care of the defendant.^[66]FP said that when ML was aged 7 or 8 she took ML to a doctor regarding her having “a sore groin or genitalia or that part of her body” but that ML did not give her any explanation why.^[67]

30. [30]
    FP said that on 14 March 2014, ML complained to her that, when she was young, her father had molested and raped her. FP said ML complained that the defendant made her rub his penis and wanted her to “wee” in his mouth. FP also said ML told her the defendant had them play games naked and run around the bedroom. FP said she called RG who then came over.^[68]

CS

31. [31]
    CS is a social worker employed at the Centre Against Sexual Violence. She conducted a number of counselling sessions with ML. In particular, on 9 April 2014, she saw ML who complained of her father raping her, her urinating in his mouth, and being forced to masturbate him.

Admissions – Exhibit 2

32. [32]
    Admission no.1 details a complaint made by ML to police officer McWha on 24 March 2014, at Springwood Police Station. Relevantly, ML told officer McWha she wanted to report sexual abuse and rape between 1992 and 1994, when she was aged from 7 years until about 9. She said the offending occurred at their residence at Mount Tarampa. She reported the offending “probably happened monthly” and approximately half of the conduct was her being raped. ML described the conduct occurring in her parents’ bedroom when her mother was not home, and that it sometimes involved just her, and sometimes both her and her sister. ML described her father saying, “Do you want to play a game?” ML described three main activities: the defendant asking the girls to squat over his face and urinate in his mouth; the defendant asking ML to rub his penis “until stuff came out”; and the defendant raping ML. In relation to attempting to urinate in her father’s mouth, ML said she “did try but I never could”. ML said she could not recall the frequency of having to masturbate her father but that it was more than once. In relation to the rapes, ML described: “I’d be laying on the bed and he’d hold me down. He would be inside me and thrusting. It hurt but it just caused me to feel frozen and scared. Just before he came he would pull out and ejaculate on the bed spread.” ML was asked about what happened to her sister and replied “The same stuff as me. She reported it to the police and he was charged. I think that all finished in 2001. I couldn’t remember if he touched me. I think he did but I must have blocked it all out.”

33. [33]
    Admission no.2 is to the effect that RG did not disclose on 28 March 2018, in the only conference held with her prior to trial, that she had witnessed ML masturbating the defendant.

34. [34]
    Admission no.3 refers to a document which forms part of the admissions. That document is a file note made by a guidance officer of a conversation with ML on 23 July 2002. The file note reads:

ML’s friend PB concerned ML’s safety re move back with father. On interview with ML maintains was interviewed by police re RG’s incident – no such occur. for her (ML) – ML feels very safe live with father.^[69]

Nolle prosequi – count 5

35. [35]
    At the conclusion of the evidence, the prosecution entered a nolle prosequi in relation to count 5. The prosecution advised this was because no evidence had been given in support of that charge.^[70]

Defence case

36. [36]
    The defendant did not give or call evidence.

Elements of offences

37. [37]
    Count 1 is charged pursuant to s 229B of the Code, as it was first enacted.^[71]Over the time period relevant to this case, i.e. between 1992 and 1994, that section required proof that the offender, during the period of the maintenance of the relationship alleged, did an act defined to constitute an offence of a sexual nature in relation to the child on 3 or more occasions. The section was held to require the jury be unanimously satisfied beyond reasonable doubt, not only of the maintenance of a sexual relationship, but also as to the commission of the same 3 sexual offences.^[72]Here, circumstances of aggravation are also charged. One of those alleges that during the course of the relationship, the defendant raped the child. The definition of rape in that context is as per counts 4 and 6 (see below).

38. [38]
    Upon preparing my reasons for decision in this case, it became apparent that the wording of count 1 in the indictment is deficient in that it does not include the allegation that the relationship was unlawful. Section 229B of the Code as first enacted, and as applies in this case, so far as is relevant, was as follows:

229B.(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of sixteen years is guilty of a crime and is liable to imprisonment for seven years.

39. [39]
    It is therefore necessary to prove, as an element of the charge, that any sexual relationship maintained by the defendant was unlawful. I assume this omission was an oversight. In this case there is no suggestion that, if such a relationship existed, it was other than unlawful. No application was made to quash the indictment on the grounds of a formal defect.^[73]Pursuant to s 572 of the Code, the Court has power to order the amendment of the indictment at any stage of the trial if satisfied no injustice will be done, if the omission is not material to the merits of the case, and the defendant will not be thereby prejudiced in his defence. I am satisfied the omission is not material in this case. Amendment in this way causes no prejudice to the defendant in the presentation of his defence, and would not have altered the conduct of the defence case. In the circumstances, it is necessary that count 1 be amended to include the words “an unlawful” after the word “maintained”. I am therefore satisfied the amendment causes no injustice and I order the indictment be amended accordingly.

40. [40]
    The elements of count 1 therefore are as follows:

• the defendant did an act defined as an offence of a sexual nature in relation to the child on three or more occasions;
• the defendant maintained an unlawful relationship of a sexual nature with the child;
• in the course of that relationship the defendant raped the child;
• in the course of that relationship the defendant procured the child to commit an indecent act.

41. [41]
    Count 2 is charged pursuant to s 210(1)(d) of the Code. The elements of count 2 are as follows:

• the defendant wilfully exposed the child to an indecent act (i.e. deliberately exposed the child to an act that offends against currently accepted standards of decency);
• that exposure was unlawful (i.e. not authorised, justified or excused by law);
• the child was under 12 years;
• the child was to the defendant’s knowledge his daughter;
• the defendant was the guardian of the child.

42. [42]
    Count 3 is charged pursuant to s 210(1)(b) of the Code. The elements of count 3 are as follows:

• the defendant procured the child to commit an indecent act (i.e. brought about a course of conduct that offends against currently accepted standards of decency);
• the procuring was unlawful (i.e. not authorised, justified or excused by law);
• the child was under 12 years;
• the child was to the defendant’s knowledge his daughter;
• the defendant was the guardian of the child.

43. [43]
    Counts 4 and 6 are charged pursuant to s 347(1) which has since been repealed.^[74]The provision as then applied established the elements of counts 4 and 6 as follows:

• the defendant had carnal knowledge of the child (i.e. his penis penetrated the child’s vagina to any extent);
• carnal knowledge occurred without the child’s consent.

44. [44]
    In the circumstances of this case, the real issue is whether the prosecution have proved beyond reasonable doubt that the acts relied upon as the basis of each charge actually occurred. That question is dealt with below. However, if the acts relied upon as the basis of each charge were proved beyond reasonable doubt, then it seems to me the other elements of each offence would also be proved. In relation to count 1, if those acts were proved, it would follow that activity also showed the commission of at least 3 separate sexual offences, the maintenance of an unlawful sexual relationship during the course of which the defendant raped ML, and procured ML a child under 12 years to commit an indecent act. In relation to count 2, if the acts relied upon were proved, that would show the defendant wilfully and unlawfully exposed ML to an indecent act by RG when ML was aged under 12, was to the defendant’s knowledge his daughter, and of whom he was the guardian. In relation to count 3, if the acts relied upon were proved, that would also show the defendant unlawfully procured ML to commit an indecent act, ML was then aged under 12 years, and was to the defendant’s knowledge his daughter of whom he was the guardian. In relation to counts 4 and 6, if the acts relied upon were proved, that would show the defendant had carnal knowledge of ML without her consent.

General principles

45. [45]
    The prosecution bears the onus of proving the elements of the offences beyond reasonable doubt. The elements of the offences are set out above. The defendant is presumed to be innocent and bears no onus of proof. The defendant did not give or call evidence, as is his right, and no inference is drawn against him because of that fact. I am required to give separate consideration to whether each alleged offence is proved beyond reasonable doubt. Any doubt I hold in relation to the credibility or reliability of the complainant in respect of one count, must be taken into consideration by me in considering whether the other counts are proved on the evidence. In this case there is evidence of preliminary complaint by ML to her mother, sister, a counsellor, and a police officer, all prior to providing her witness statement to police in May 2014. This complaint evidence may be used only as it might affect ML’s credibility or reliability.

46. [46]
    In this case the prosecution concedes that I should have regard to the significant delay between the commission of the alleged offences and the reporting of them to police, consistent with the decision in Longman v The Queen.^[75]That decision identifies the need to recognise the unfairness occasioned to the defendant by reason of his reduced opportunity to adequately test or meet the allegations because of the passage of time.^[76]In this case the offences are alleged to have been committed between 1992 and 1994, and the evidence shows the offences were reported to police in 2014. Hence the relevant delay is a period of twenty years.

Consideration

47. [47]
    The real issue in consideration of this case is whether the acts identified as being the basis of each of the charges has been proved beyond reasonable doubt to have occurred. The thrust of the defence submissions was to the effect that the evidence, viewed in total, exposed such unreliability in the accounts of ML and RG, that it was not open to conclude beyond reasonable doubt the defendant had committed any of the offences. It is not submitted by the prosecution that any evidence, independent of ML, is capable of proving any of counts 1, 4 or 6. The prosecution however argue that RG’s evidence is capable of proving counts 2 and 3, independent of ML’s evidence. The focus therefore is upon the credibility and reliability of the accounts of ML and RG.

48. [48]
    Fundamental to that assessment is the delay in reporting the allegations. I accept current experience identifies that delay in reporting of child sex offences is common place. However, in this case, a number of circumstances are relevant to this consideration. Firstly, it is accepted by ML she did not complain of this offending even though she knew her sister complained of her own sexual abuse by the defendant. ML accepted she was asked by her mother, at the time of her sister’s complaint in 2000, whether the defendant had abused her. She then said he had not. In the passage set out above at [16], ML twice said, in effect, this statement to her mother was the truth.

49. [49]
    In addition, ML continued to deny any offending against her when interviewed, even after her father had been imprisoned for offences against RG. She specifically denied her father had done anything to her when separately spoken to in 2002 by a guidance officer and an officer from the Department of Communities. She maintained she then felt safe and admitted it was her own choice to continue to live with the defendant. Also, in the period after her parents’ separation, but prior to RG’s complaint, ML did complain to her father of sexual abuse of her by someone else. She said her father reported that to police and she was interviewed, not in her father’s presence, but did not complain about sexual abuse by him.

50. [50]
    The circumstances of ML making her complaint are also relevant. The evidence shows ML complained to her mother and sister in 2014 after experiencing a panic attack when watching news of the verdict in the Daniel Morcombe case. Although ML maintained in evidence she has always remembered her father’s abuse of her, statements she made to counsellors and police suggest these “memories” only surfaced at the time she saw the television program. In particular, ML variously described her memories as “dreams”, said they were “unreal” or “vague”, said she had a “blackout” and then realised her father was on top of her, and said she had a “revelation” after seeing the television story. She admitted the therapy she had undergone had taken her from being uncertain whether these dreams were real to certainty they were genuine memories.

51. [51]
    The circumstances of the delay in this case, as well as those surrounding ML reporting these allegations, cause me to have serious doubt about her reliability. This is not a case of a young child, over a period of years, remaining in a position where it was impractical or difficult to make any complaint. In this case the circumstances were quite the opposite. Here, ML remained in contact, and on good terms, with her mother and sister and knew her sister’s complaint had resulted in her father’s imprisonment. She was not in any sense isolated or unsupported. Nor can it be said that she simply failed to complain. In this case, ML positively refuted numerous times, that any offending occurred. ML’s many descriptions of her memories suddenly occurring to her also cast doubt upon the reliability of them. Common experience suggests that rather than being recovered or re-surfacing, a genuine memory of a significant event will remain intact. ML’s admission that she was unsure whether the memories were real or true cause me to doubt that very issue. ML’s evidence as to this suggests she has only come to believe these memories are true because of the therapy she has undergone.

52. [52]
    Other features of ML’s evidence also cause me to doubt her reliability. ML said she underwent surgery in 2008 to correct her intact hymen in order to allow her to have sexual intercourse. It had been impossible prior to the surgery; she was then aged 23. Yet ML complains of the defendant having full penetrative sexual intercourse when she was aged 8. The submissions of the prosecution were to the effect that ML’s description of sexual intercourse occurring was consistent with partial penetration of her vagina. However, that was not the description of ML, as an adult, in explaining what occurred. Her description of count 4 included the defendant being “inside” her and “thrusting” before withdrawing to ejaculate. Her description of count 6 included ejaculation inside her vagina.

53. [53]
    In this case, although it might be said that some features of ML’s evidence are consistent with the versions admitted as preliminary complaints, there is also significant inconsistency. In the version given by ML to officer McWha, ML said that rape comprised about fifty percent of the activity her father engaged in. In evidence, ML described two such events and could not remember any others although she believed that probably occurred. In addition, in that account ML said in effect that she attempted to urinate in the defendant’s mouth multiple times. In evidence ML said that occurred only once. Also, as to how often she masturbated the defendant, ML said to officer McWha she “couldn’t say but more than once”. This contrasts with her evidence that this activity was the most prolific, occurring every month for two years. ML also told officer McWha, regarding her sister’s complaint, “I couldn’t remember if he touched me. I think he did but I must have blocked it out”. This is at odds with her claim to have always remembered these events.

54. [54]
    Other inconsistencies in ML’s account exist. In particular, ML gave evidence of some things she claimed to recall which were not in her police statement. These included clothing worn at the time of counts 2 and 3, where she was standing during the incident the subject of count 2, and her sister leaving the room before the event which is count 4.

55. [55]
    All of these features cause me to have real doubt as to the reliability of ML’s account when considered on its own. It is necessary to consider whether any other evidence, and in particular that of RG, is such that would allow acceptance of ML’s evidence or aspects of it.

56. [56]
    RG claimed to have recalled her father sexually abusing both she and ML upon hearing ML describe those things in March 2014. She said she did not remember this before. RG acknowledged she made a detailed complaint in 2000 about her father’s sexual abuse but did not describe any conduct which involved her sister. Her explanations for that included that she did not then remember it, and also that she was “terrified”. The last explanation suggests her non-disclosure was deliberate. RG also acknowledged she was present when ML denied any abuse to their mother but RG did not volunteer anything to the contrary. RG admitted she and ML had always remained close and that, when ML complained to police, RG promised ML she would help her. RG maintained in evidence that she described to the prosecutor in conference that she remembered she and ML masturbating their father, whereas the admissions make it plain that is not correct.

57. [57]
    I find it difficult to accept that RG’s claimed recollections are genuine. Having considered the apparent closeness of RG and ML’s relationship, the circumstances of RG not describing any of these events when making her own complaint, and that the detail of RG’s memory includes only the things ML complained of, I am not satisfied that any of the conduct described by RG occurred. It seems to me significant that in effect RG claims she was not simply withholding detail of conduct involving her sister, but conduct that involved her own sexual abuse. Yet she readily complained of other sexual abuse of herself. Further, in evidence, RG claimed she did inform the prosecutor of her and ML masturbating the defendant. That claim was proved incorrect. This further damages the credibility and/or reliability of RG’s evidence.

58. [58]
    In the end, I am not persuaded that RG’s account is credible when considered on its own, and I am not satisfied on the basis of her evidence that any of the acts necessary to prove counts 2 and 3 actually occurred. Also, I am not satisfied on the basis of RG’s evidence that any acts of masturbation of the defendant occurred. There is no evidence apart from that of ML which might support RG’s account. I am not satisfied, for the reasons explained above, that ML’s evidence provides any basis upon which I should accept the material evidence of RG.

59. [59]
    In addition, for the reasons explained above, I conclude that RG’s evidence does not provide a sound basis to accept ML’s evidence as to commission by the defendant of any of the acts relied upon as the basis of the charges.

60. [60]
    In coming to these conclusions, I have had regard to all of the evidence of ML and RG when considering each of the charges. I have also considered all of the other evidence in the case. The evidence of FP demonstrates the defendant had opportunity to commit the alleged offences but does not otherwise prove any offending occurred. FP did give evidence of having taken ML to a doctor, when aged “seven or eight” after a complaint by ML. FP acknowledged ML did not give any explanation why she was sore. This evidence is of little significance in assessing the reliability of ML’s account given the timing may actually contradict ML’s version and no sexual complaint was then made. The other evidence consisted of preliminary complaint by ML to FP, RG, counsellor CS, and police officer McWha. I have had regard to all of that evidence in assessing the reliability of ML’s account. In particular, as noted above, whilst some consistency of account is obvious, significant inconsistency also exists which tells against ML’s reliability.

61. [61]
    In assessing the evidence against the defendant, I have also had regard to the unfairness occasioned to the defendant by reason of the delay in the making of complaints to police by ML and RG. Here, the delay is at least twenty years. In this context, I note that the defence case focused largely upon the circumstances of the failures to complain, and the reasons given for the complaints ultimately being made. Obviously, it is now difficult for the defendant to adduce evidence of his whereabouts at any time in order to rebut the claims against him, or to otherwise prove the allegations untrue. In those circumstances, I recognise the danger in convicting upon the evidence of ML or RG alone, and the need to look for other evidence which might confirm their respective complaints in some material respect. For the reasons outlined above, I have concluded that neither complainant’s account is capable of confirming the account of the other.

62. [62]
    I am not satisfied beyond reasonable doubt, having regard to the whole of the evidence, that any of counts 1, 2, 3, 4, or 6 have been proved. It follows that BNC should be found not guilty of all counts.

Orders

63. [63]
    The orders of the court are:

1. The indictment be amended to include in count 1 the words “an unlawful” after the word “maintained”.

2. In relation to Count 1, the offence of maintaining an unlawful sexual relationship with a child with circumstances of aggravation, I find BNC not guilty.

3. In relation to Count 2, the offence of indecent treatment of a child under 16, under 12, who was a lineal descendant, and as a guardian, I find BNC not guilty.

4. In relation to Count 3, the offence of indecent treatment of a child under 16, under 12, who was a lineal descendant, and as a guardian, I find BNC not guilty.

5. In relation to count 4, the offence of rape, I find BNC not guilty.

6. In relation to count 6, the offence of rape, I find BNC not guilty.

7. BNC is formally discharged in respect of all counts.