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R v CR[2020] QDC 269

R v CR[2020] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CR [2020] QDC 269

PARTIES:

THE QUEEN

(Crown)

v

CR

(Defendant)

FILE NO:

Ind 318/20

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

23 October 2020

DELIVERED AT:

Beenleigh

HEARING DATE:

21 – 23 September 2020

JUDGE:

Chowdhury DCJ

ORDER:

Count 1 (Maintaining a sexual relationship with a  child): GUILTY

Count 2 (Indecent treatment of a child under 16):  GUILTY

Count 3 (Rape): GUILTY

Count 4 (Rape): GUILTY

Count 5 (Rape): NOT GUILTY

Alternatively

Count 5 (Carnal knowledge of a child under 16): GUILTY

Count 6 (Carnal knowledge of a child under 16, under care): GUILTY

Count 8 (Carnal knowledge of a child under 16, under care): NOT GUILTY

Count 9 (Carnal knowledge of a child under 16, under care): NOT GUILTY

Count 11 (Carnal knowledge of a child under 16): GUILTY

Count 12 (Rape): NOT GUILTY

Count 13 (Rape): NOT GUILTY

CATCHWORDS:

SEXUAL OFFENCES – TRIAL BY JUDGE ALONE

LEGISLATION:

Criminal Code 1899 (Qld)

CASES:

Longman v The Queen (1989) 168 CLR 79

R v Markuleski (2001) 52 NSWLR 82

R v Sunderland [2020] QCA 156

R v UC [2008] QCA 194

Robinson v The Queen (1999) 197 CLR 162

COUNSEL:

C. Birkett for the Crown 

M Bonasia for the defendant  

SOLICITORS:

Director of Public Prosecutions for the Crown

McMillan Criminal Law for the defendant

Introduction

  1. [1]
    The accused CR is charged with the following offences:

Count 1 – that between 12 August 2001 and 3 July 2005 at Jimboomba and elsewhere in the State of Queensland [the accused] being an adult, maintained an unlawful sexual relationship with [STC], a child under 16 years. 

Count 2 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] unlawfully and indecently dealt with [STC], a child under 16 years.

Count 3 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].

Count 4 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC]. 

Count 5 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].

Count 6 – That on a date unknown between 31 December 2002 and 3 July 2005 at Crestmead in the State of Queensland [the accused] had unlawful carnal knowledge of [STC], a child under 16 years, and [the accused] had [STC] under his care.

Count 7 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.

Count 8 – that on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba or elsewhere in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years, and [the accused] had [STC] under his care. 

Count 9 – That on a date unknown between 31 December 2002 and 3 July 2005 at Undullah or elsewhere in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years and [the accused] had [STC] under his care.

Count 10 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.

Count 11 – That on a date unknown between 31 December 2002 and 3 July 2005 at Calliope in the State of Queensland, [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.

Count 12 – That on a date unknown between 2 July 2005 and 3 July 2007 at Cedar Grove in the State of Queensland [the accused] raped [STC].

Count 13 – That on a date unknown between 2 July 2005 and 3 July 2007 at Cedar Grove in the State of Queensland [the accused] raped [STC].

  1. [2]
    The accused pleaded not-guilty to each of the 13 charges.  A trial proceeded before me as a trial by Judge alone. 

The particulars

  1. [3]
    The following particulars were provided in writing at the commencement of the trial, and were marked for identification “A”:

Count 1: The complainant describes sexual offending by the defendant from about the age of 13 until she turned 16.  [The accused] maintained a sexual relationship with [STC].  The relationship included the accused making contact with the complainant’s vagina and/or penetrating her vagina with his finger/s and/or penetrating her vagina with his penis. 

Count 2: The complainant describes this as being the first incident of sexual contact, she was sleeping over at the defendant’s house.  The accused’s hand made contact with the complainant’s vagina. 

Count 3: The complainant describes sleeping over in the front spare room at the defendant’s house when he came in and offended against her.  He penetrated her vagina with his finger/s. 

Count 4: The complainant describes a time when she was 13 sleeping in the dining room in Hill Street.  The accused penetrated the complainant’s vagina with his penis. 

Count 5: The complainant describes an occasion when the defendant raped her while she was menstruating.  He penetrated her vagina with his penis.

Count 6: The complainant describes an occasion where the accused drove her home after he refereed a soccer game.  He stopped at his work on the way home, and penetrated the complainant’s vagina with his penis. 

Count 7: The complainant describes this as being the last particular occasion she can remember in 2003.  She describes it being winter, she was in his spare room, he came in, and had intercourse with her. 

Count 8: The complainant describes an occasion where the defendant was driving her to work at McDonald’s and he had intercourse with her; he was wearing a fluorescent jacket.

Count 9: The complainant describes and occasion when the accused was driving her to her friend’s house.  He pulled over on the side of the road at a spot he didn’t usually stop at, and had intercourse with her. 

Count 10: The complainant describes an occasion the pair were having intercourse in the defendant’s house in the spare room.  They both heard a noise, paused, the defendant left, but returned a short time later and continued having intercourse.

Count 11: The complainant describes an occasion when she and her family went camping at a property in the Gladstone region.  She describes an incident where her and the defendant had intercourse in her tent. 

Count 12: The complainant describes an occasion where she was in a caravan, and she woke up to the defendant with his penis in her mouth, and he ejaculated inside her mouth. 

Count 13: The complainant describes an occasion the accused put his penis in her anus.  She initially allowed him to try, told him no, and that she didn’t want it anymore, but the defendant put his penis back in her anus. 

Evidence of the complainant

  1. [4]
    The complainant gave evidence that she met the accused through her mother.  Her mother met the accused online, and when she was about 10 or 11 years of age, her mother and the rest of her family went to the accused’s house in Jimboomba, in particular in Hill Street.  At that time she and her family were living in Murwillumbah in New South Wales. 
  1. [5]
    The complainant gave evidence of her mother’s name, and her three brothers.  Around this time the complainant’s parents separated, and her mother formed a relationship with the accused.  She couldn’t recall when her parents separated, she remembered it was about six months into Year 7 which was high school in New South Wales.
  2. [6]
    As a result of the separation the complainant, her mother and brothers moved to Queensland and stayed in Elimbah with a friend of the mother’s.  They eventually moved to an address in Samantha Street, Boronia Heights.  While living at that house she would regularly see the accused, a couple of times a week.  On occasions she and her family would go and stay at his house in Hill Street, Jimboomba.
  3. [7]
    The complainant said that when she and her family stayed at the defendant’s house in Hill Street, Jimboomba, she would sleep in a room in which there were bunk beds; she would sleep on the bottom bunk.  Her brother slept in a spare room at the end of the house, while her mother slept in the accused’s bed.  On occasions the accused’s children would come over to stay, every second weekend she believed.
  4. [8]
    The complainant described her relationship with the accused as:

“he was always nice to me, like, he was – he was nice.  Like, he sort of, I guess, treated us - yeah, he was nice, he – he wasn’t mean, he was polite and nice.”[1]

  1. [9]
    The complainant went on to describe that the accused would tickle her and always play practical jokes and play games with her. The complainant said that the tickling games changed as time went on.  She could not remember exactly how old she was, but it was not long after she had met him, “maybe a few months after we’d met him that the tickling began.  And then a few months after that, I would say, it – it changed.”[2]
  1. [10]
    She said that the tickling changed to “him putting his fingers inside me or on the outside, sort of, of my vagina.”[3]
  2. [11]
    The complainant remembered a specific occasion when she was sleeping on the bottom bunk in the front room, before the family moved from New South Wales.  For that reason she “often go back to 11 when it first started.”[4]  She said that she was asleep, she woke up, the accused told her to be quiet and not to call out, and then put his hand down her pants.  She gave the following evidence when asked about the first occasion the accused touched her vagina:

“I would have been wearing my boxer shorts and a sports bra and a shirt and he put his fingers sort of inside my vagina but on the outside.  And I – I remember sort of pulling away and moving and sort of saying ‘no’, ‘don’t’.  But then as – as he was putting his hands down but then, once was there, I sort of just froze throughout that.  And I remember it being sort of painful.  He had really rough hands with, like cracks in his fingers.”[5]

  1. [12]
    The complainant said that the accused on this occasion touched her vagina on the skin, but on the outside of her vagina.  When asked how old she was at this time, she gave this answer:

“Yeah, I would have been – I – I believe I was about 11.  I keep going back to 11, like, 12, but I don’t remember a time that he wasn’t doing it which is why I go back to that age.”[6]

The complainant said that she knew it was the defendant because there was light coming from a computer reflecting through the dining room and kitchen and she could clearly tell it was the accused.

  1. [13]
    The complainant then said that after that occasion the touching became

“sort of regular that he would come into my room and – and do that.  And during that time, I remember a conversation where he – he told me not to tell anyone and I don’t know that was before the next – so just became a regular thing where he would just put it inside – like, just on the outside, under my underwear”.[7]

She confirmed it became a regular occurrence that the accused would come into her room, put his hand inside her underpants and touch her on the outside of her vagina.

  1. [14]
    The complainant then said that this touching occurred “almost every time we stayed at [the accused’s] house.”  She then said after that touching occurred for a time, it changed to him actually inserting his finger inside her.  She said that that was a matter of months after the touching began.  I pause to observe that the incident she described on the bottom bunk before her family had moved from New South Wales to Queensland is the basis of Count 2.
  2. [15]
    The complainant said she could recall a specific occasion where the accused put his finger inside her vagina.  She was again on the bunk bed in the front room, and she was asleep.  The accused would stay up late on his computer, and then come into her room when she was asleep.  On this occasion he had put his hand down her pants as before, but he progressed and:

“…and he’d come in, and started to put his hands down my pants again. And I remember, sort of, pulling away a bit. I wasn’t consenting at that stage. I believe I said “No,” or “Don’t do that,” or something to that effect. But as he progressed, he actually put his fingers in – finger inside me, and I remember it being – I, sort of, just froze and I was really confused on what was happening on what he was doing and I believe it was then or around then that he actually said to me not to tell anyone, and that my Mum wouldn’t believe me anyway.”[8]

She believed it was the accused’s right hand which was put beneath her shorts, and he put one finger inside her vagina.  She described it as painful as “I was still a virgin at that point.  I had never been through anything like that.”[9]

  1. [16]
    The complainant said she did not say anything, she just remembered lying there and “freezing”.  She thought she may have whimpered, when the finger hurt her.  She recalled the defendant saying “Shh, it’s OK.”[10]  When asked what the accused was doing with his finger, she said that he was slowly putting it in and out.  This incident is the basis of Count 3.
  2. [17]
    The complainant said that after that incident in Count 3, the penetration of her vagina by the accused with a finger became regular, when she would stay over at his house.  She said that at that time she and her family were going to the accused’s house at Jimboomba multiple times a week, but that there might have been some weeks where they did not go until the weekend; and other weeks they would stay for four nights during the week.[11]
  3. [18]
    The complainant was asked whether she said anything to the accused when he would come into the bedroom and put a finger inside her vagina.  She said:

“I recall saying ‘no’ and ‘don’t’ or things to the effect of that.  Like, I didn’t want it to happen before, but it seemed that each time it did, I still froze – like I felt I couldn’t talk.”[12]

  1. [19]
    When asked if she said or did anything to try and stop it from happening, the complainant said:

“So I’d often say things to the effect of, like, ‘is that mum?’ or, ‘what’s that noise?’ and he would stop, and he would leave the room, and he would walk – then come back a little while later.  Sometimes, I guess, if Mum was awake, he wouldn’t come back, but most of the time he did come back a little while later.”[13]

  1. [20]
    She recalled that as time went on, the accused would insert two fingers into her vagina. 
  2. [21]
    She recalled a specific occasion when it was hot weather, and she was asleep on lounge cushions.  She could not recall if the accused’s children were there.  She woke up to the accused on top of her; she was sleeping on her stomach.  He pushed her underwear and boxers to the side, and from behind inserted his penis inside her.  She recalled him breathing heavily when he did that.  She recalled him putting one of his hands over her mouth.  This event relates to count 4 on the indictment.
  3. [22]
    The complainant said that after the accused finished, he got off and she remembered “feeling really wet, like gross, and I went to the bathroom, and when I wiped, there was bits of blood mixed in with other stuff, and at the time, I didn’t really know much about what the other stuff was.  But I’d gone to the toilet and wiped a few times, and there was sort of light spotting and – mixed in with blood – mixed in with fluid.  It was, like, slimy fluid.”[14]
  4. [23]
    The complainant was asked how old she was at the time of this incident.  She remembered it being well before her 14th birthday, when her family were living in Samantha Street in Boronia Heights.[15]
  5. [24]
    From that time on, whenever she and her family stayed over at the accused’s house he would have sexual intercourse with her.  She said that that occurred “right up until I was 17 or 18”.[16]
  6. [25]
    When asked where else sexual intercourse would occur, she said:

“So it – it occurred in his car at work where he worked on – when it was in the car, it was on the side of the road.  So he would drive me – when I was 14 and once I’d got my first job at McDonalds and often we would stay at his house on – on the weekends and he would be working early in the morning.  So instead of Mum getting up to take me, he would drive me to work at – sort of 5 or 6 o’clock in the morning on Saturday.”[17]

  1. [26]
    The complainant gave evidence of an occasion on her 14th birthday, when she and the family were at the accused’s house in Hill Street, Jimboomba.  She was in the shower, and when she was drying herself the accused came into the bathroom.  She rushed to put her clothes on, and the accused came in and had a can of whipped cream and sprayed whipped cream up the leg of her pants.  The accused made a big joke of it.[18]
  2. [27]
    In respect of each occasion of sexual intercourse, she said that he would always ejaculated inside of her.
  3. [28]
    She recalled a specific occasion when the accused was driving her to work.  He pulled off on a service road that ran beside the Mt Lindesay Highway at Jimboomba.  She believed the accused was driving the black Falcon.  She said that the accused pulled off onto the service road sometime around 4.15am or 4.30am; she was starting work at McDonalds at 5.00am.  She recalled this specific occasion because the accused was wearing a “high-vis” bright yellow jacket.  When asked how the sexual intercourse took place, the complainant said the following:

“Yeah, so he would just pull over and ask me to get in the backseat of the car, and then just pull my pants down a bit and have sex.  By this stage, although I wasn’t 100% consensual with it, it was normal to me, and this was just something that we done.  So I wasn’t fighting it each time by then”.[19]

  1. [29]
    The complainant said she recalled the specific occasion on the service road when the accused was wearing his “hi-vis” shirt, because when she got to work, there was “cum – all over my underwear, and I had to sort of wash it in the sink at work, and then I used a dryer to try and dry it so I could clean up before I started my shift.”[20]
  2. [30]
    The incident that the complainant just described is the basis of count 8 on the indictment.
  1. [31]
    In respect of count 6, the complainant recalled an occasion after the accused had refereed a soccer match.  Her mother and brothers had been at the soccer match, but left in a separate car.  At this time, the accused was working at a textile business called Logan Textiles, near Browns Plains.  She recalled driving with the accused in his black Falcon to the factory, and he went down a series of gates towards the back of the building.  They went inside and she could recall that there were machines working, and the accused turned the lights on.  She recalled that he had sexual intercourse with her on the floor of the factory; the accused was wearing black dress pants and as it was cold he had a black puffer jacket on.  She said that the accused pulled her to the floor and had sexual intercourse with her.  She recalled that he ejaculated inside her because on the drive home, she was really uncomfortable and her underwear was wet from semen.  When they got back to the accused’s house in Hill Street, Jimboomba, the accused asked the complainant for her clothes and said he would wash them with his referee gear.[21]
  2. [32]
    When asked when this occasion was, she believed it was sometime just before her 14th birthday or just afterwards. She did not believe she had started work by then, but she recalled that Logan Textiles had burned down. She recalled that this incident occurred before the business burned down.
  3. [33]
    When asked if she consented to having sexual intercourse with the accused on this occasion she said: “I – through – through this period, I – I wasn’t consenting and – and willing do it but I wasn’t fighting it either. It was – it was normal.”[22]
  4. [34]
    She recalled an occasion when her family went camping with the accused at his ex-wife’s parents place at Cedar Grove. She recalled that during a day while they were staying at Cedar Grove she couldn’t recall where anyone else was or what anyone was else doing. She recalled being in her mother’s tent that the accused was sharing with her, and had sexual intercourse with her. She recalled that during that Christmas period there was sexual intercourse on two or three occasions.
  5. [35]
    She recalled an occasion when the family went away for the weekend, or for Christmas or Easter and they stayed at the house of the brother of the accused ex-wife near Gladstone. She recalled staying in a tent, and she recalled having sexual intercourse with the accused. She recalled there was a conversation while she was there about how the accused was caught sleep walking with a pillow, and that made her remember that occasion. She recalled on that occasion they went to Rainbow Beach, and she recalled that the accused received a speeding ticket. She could not recall what year that was or how old she was.
  6. [36]
    The complainant was “pretty confident” that she was staying in a tent there, and that sexual intercourse took place. However she could recall what year that incident took place, or how old she was.[23]
  7. [37]
    The complaint gave evidence that she could recall the accused taking her on driving lessons, out the back of Jimboomba and Flagstone. In that area, one of her friends lived on acreage, and he would drop her to that house and pick her up. There are few occasions when he pulled over on the side of the road and he would have sexual intercourse in the car on the side of a dirt road. She said it was Undullah Road. She said that her friend’s house was in between Jimboomba and Flagstone.
  8. [38]
    The complaint recalled a specific occasion when the accused pulled off on the side of the road that looked like a driveway but wasn’t, before a bridge. She recalled this incident took place in the blue Falcon. She went on to say that that location was a regular location for intercourse, she would get in the back seat, pull her pants down and he would have sexual intercourse with her. She did not recall him taking his pants off, he would always just undo them and pull them down a little bit before inserting his penis into her vagina.[24]
  9. [39]
    The complainant said that sexual intercourse occurred more than once at this location. When asked if there was any discussion or conversation between her and the accused, she said: “he – not really. There had been, where he said not to tell people and he sort of reiterated that. But by this time – by the time it was getting on, it was just normal to me. Like it was – almost like it – it just happened, it was just something that happened, and he would joke and be smart about things, like buy me things and say ‘you can pay me in sexual favours’, like, when my mum wasn’t around.”[25]
  10. [40]
    When asked how old she was on these occasions visiting her friend Terry near Flagstone, she said she was “probably between about 15”. She said “I would have been in year 10, 11 or 12; because I went to Flagstone in 10, 11 and 12 and we went to and from that house a lot throughout those years.”[26]
  11. [41]
    One of the occasions at the side of the road on the way to Terry’s house at Flagstone is said to be the basis of Count 9.
  12. [42]
    She recalled an occasion between her 15th and 16th birthdays. On this occasion, the accused when driving the complainant to her friend Terry’s house, he pulled over close to Terry’s house, and got in the backseat with the complainant. She then gave the following evidence:

“It was the same, so he just – he pulled in, got in the backseat, didn’t take his clothes off, just pulled it down enough – and I used to remember, what stands a lot to me is, he would always pull the skin back, and I didn’t realise at the time that he wasn’t circumcised. And that – so before – before having sex, he would always have to pull skin back … On his penis, before putting it in.”[27]

  1. [43]
    The complainant was then asked whether she tried to locate the area where the accused pulled over on a dirt road were looked like a driveway. The complainant said that with the police officer they tried to find it on google maps. An aerial photograph from google maps was shown to the complainant, and she identified an area on the photograph where the accused pulled over his car to have sexual intercourse with her. That photograph became Exhibit 1.
  2. [44]
    The complainant recalled there was an occasion when the accused moved in with his ex-wife’s parents at their house at Cedar Grove, where they had camped.  The accused was living in a caravan on their property, and that the accused had sexual intercourse with her on a number of occasions in the caravan.  She could not recall how old she was on those occasions.[28]
  3. [45]
    In respect of Count 12, the complainant gave evidence of an occasion when she had driven herself to the Cedar Grove address.  There was one time she was sleeping beside the accused on the floor, and she woke up as the accused had put his penis inside her mouth, and ejaculated in her mouth.  She recalled spitting the semen into a pair of underwear that was under the bed.[29]  She said that that was not the first occasion that he had put his penis into her mouth, but it was the first time that he had ejaculated inside her mouth.  When asked to describe this occasion, she said the following:

“I would have woken up just before, but I had been to sleep before.  Then he just made out like it was nothing and he just rolled over and went back to sleep and I felt sick.  My Mum was in the bed with him, on the other side; and I just felt gross.”[30]

  1. [46]
    The complainant could not recall how old she was on this occasion; she thought maybe 16 years old.  The complainant said that this was the first and only occasion that the accused ejaculated inside her mouth.  This is the basis of Count 12.
  2. [47]
    The complainant was asked about any other specific occasions when the accused put his penis inside her mouth.  She recalled an occasion either just before her sixteenth birthday or after her sixteenth birthday, when her mother had gone to New South Wales.  The complainant had a boil on her back.  She was in a lot of pain with it and the accused took her to Beaudesert Hospital to get it checked and dressed.  When they went to the hospital, the accused told the staff that the complainant was his daughter.  She recalled an occasion during the day she was staying at his house that he put his penis inside her mouth.[31]
  3. [48]
    In respect of the visit to the Beaudesert Hospital, she recalled that they also had sexual intercourse, and she specifically recalled the accused commenting on her weight, and in particular about the front of her vagina.  The accused made some comment that she would look so much better if she could lose the weight from around her vagina.[32]
  4. [49]
    The complainant also said that during this occasion when she had to go to the Beaudesert Hospital she would have sexual intercourse with the accused in his bedroom.
  5. [50]
    The complainant said that while her mother was away in New South Wales, she would perform oral sex on the accused before having sexual intercourse.  She said that by that stage she was willing to perform oral sex on him.[33]
  6. [51]
    The complainant gave evidence of an occasion which is the basis of Count 13.  She said the following:

“There was more.  So once in the caravan he put his penis in – anal, in my bottom and I’d sort of said ‘no’.  Like, I wasn’t willing to do that and he’s like, it – he said, it’ll be OK, and then done a bit and it was very painful.  And then I sort of pulled away and he said, ‘you know, try it again.’  And then he tried it again and it was still painful and then when I said that it was painful, he stopped.  He didn’t persevere with that.  That was in the caravan at – at Cedar Grove.  One time he used – again, in the caravan at Cedar Grove, he used a bottle, like a – it was a glass bottle.  Not like a beer bottle, it was like a – like a soft drink bottle but with a screw cap and he inserted that into my vagina.  He said, ‘let’s try this’, and he inserted that into my vagina and it hurt, obviously, I know, because it had the lid on it.  So then he took the lid off and tried it again and then I asked him to stop and – and it stopped.”[34]

  1. [52]
    In respect of this occasion, she thought she was probably 16 years of age.[35]
  2. [53]
    The complainant gave evidence of an occasion where the accused video-taped them having sexual intercourse.  She said by then she was consenting.  She said the following:

“And he’d videoed it and – and I remember after he’d videoed it, it was like a handheld video camera and he took – he wiped himself on, like, a towel or a pair of underwear that were in – something at the end of the caravan.  And then he took the cassette or the – the thing out of the video player and he put it on top of the cupboard.  And then I’d gone inside and – and cleaned up and – and come back out and I left and then, the next time I was there, I went to get – to get it from the top of the cupboard and it wasn’t there.  And I don’t know what he done with it or where he put it, but I was concerned because there’s a video of me somewhere and I – I don’t know what happened to it.”[36]

  1. [54]
    In respect of Count 5, the complainant gave evidence that she first got her periods when she was in Year 9 at school.  She gave evidence that there was an occasion when she had not had her periods for very long, and she was only wearing a pad.  She recalled that the accused had sexual intercourse with her in the bed in the spare room of his house, and on this occasion period blood had seeped out to the sheets and onto the bed.  When she woke up in the morning, she saw that she’d pulled the covers over to cover the blood stains.  On the next occasion she visited the accused’s house the bed and sheets had been cleaned.[37]
  2. [55]
    The complainant gave evidence of an occasion when her family were living in the caravan and the accused had a shed which had a pool table, a television, a computer and a refrigerator.  She recalled one time being on the floor, watching TV, with the accused when he put his toes beneath a blanket and put them beneath her shorts and put his toes inside her vagina.  When asked if it was more than one toe, she thought it was his big toe.  She could not recall how old she was.[38]
  3. [56]
    She recalled an occasion when there was a barbeque, and the accused walked up behind her and touched her bottom.  She could not recall how old she was when that occurred. 
  4. [57]
    She recalled an occasion when the family were living at Gregory Street in Boronia Heights.  The complainant and her family and the family next door had gone to Southbank to swim.  The accused texted the complainant telling her not to go with her mother.  She could not recall the specifics but she did not go with her mother to Southbank; the accused came to the house in Gregory Street and had sexual intercourse with her.[39]  After they had intercourse, the accused took her to Grand Plaza at Browns Plains and bought her a new pair of swimmers and board shorts, and then drove the complainant to Southbank to meet up with her mother.  The complainant recalled that she was 16 on that occasion but not 17.
  5. [58]
    In response to the question about her relationship with the accused, the complainant said the following:

“He – he was always – he was always nice to me.  Like, he always – he always referred to me as his daughter.  Like, there was myself and – two of my brothers that were around a lot, but he always referred to myself and my youngest brother as – like, as if we were his own kids.  And he would buy us stuff, I remember him buying me lots of things.  And each time he would give me something it would be ‘you owe me’ or ‘now you owe me’ and that was – he said that a lot. …so he would buy sometimes clothes.  Like, he bought that red – red shirt, swimmers.  He bought us Christmas presents, sunglasses and stuff like that.  He bought me a camera.  I don’t recall if he bought me the camera, but he bought me the camera bag.  And I remember him turning up with it in the boot of his car.  And he’d give – like, when he would drive me to school, like for, for lunch money or bus money he would – he would always had coins around, and he would give me coins and money.”[40]

  1. [59]
    The complainant said that she moved out of home when she finished school; she was 17 years old.  The complainant could not recall the first people she told about the offending; it was either her work colleagues, Allen Walsh and DTS, or her aunt, KW.  She recalled that she had started as an apprentice in a furniture-making business, and she was getting a rough time from some of the people at work.  She had moved to live in the garage at her aunt, KW’s house.  She recalled an occasion when she came home from work, became upset and said to her aunt who was hugging her: “that [CR] had been molesting me or sexually abusing me.  I believe it was molesting – since I – and I believe I told her since I was 14.”[41]
  2. [60]
    In respect of her co-workers, she was working at a smaller second factory along with Mr Walsh and DTS.  She could not recall word for word what she told them, but she remembered saying along the lines of “that he’d been sexually abusing me since I was young”.
  3. [61]
    The complainant said that she told her friends Elijah Smit and Jessica De Rouw.  She recalled telling them that the accused had sexually abused her from a young age.  She did not give them any other details than that.[42]
  4. [62]
    She also said that she spoke to another friend, Jasmine Butler, about what happened.  She told her that she was uncomfortable around the accused, and that he had sexually abused her from when she was younger but it was not happening anymore.[43]
  5. [63]
    The complainant also told another friend, Kirsty Leuken.  She was a friend from Murwillumbah, who had been one of her good friends for a very long time.  She recalled telling her that the accused had sexually abused her from a young age.  She said the same thing to another school friend from high school, Kelly Morell.
  6. [64]
    The complainant approached another friend of hers, Amy Thornton, who was a police officer, and asked her advice on what she should do.  She recalled speaking to Ms Thornton through Facebook messenger, and that conversation was printed and became Exhibit 2.
  7. [65]
    The complainant went to the police on 25 January 2018.  A formal statement was given, and on 31 March 2018 she took part in a “pre-text phone call” with the accused.  The first conversation that was recorded became Exhibit 3.[44]  Exhibit 3 also contained a further phone conversation of 21 July 2018.[45]
  8. [66]
    The complainant said that when she left home, her mother was still in a relationship with the accused.  They finally separated in 2014, around the time the complainant had a son.[46]
  1. [67]
    In cross-examination of the complainant, the following was established:
  • The complainant accepted that she graduated from high school when she turned 17, which was 2006;
  • She was aware that the accused had been in the Royal Australian Air Force, and that he had a uniform in his cupboard;
  • She accepted that on 3 July 2005 she turned 16;
  • In respect of the trip her mother took to New South Wales to visit a friend, Lou Luviana, the complainant said she would have been 15 at that time.  She accepted that her mother’s trip to New South Wales could have been in January 2006, by which time she had already turned 16;[47]
  • She accepted that the accused had given her a loan to purchase her first car, a 1991 Toyota Corolla, and the agreement was that the complainant would pay back the accused in instalments;
  • She agreed that she moved out of her mother’s house when she was 17 years of age, and moved in with her aunt.  She accepted that she had an 18th birthday party in 2007, and the accused was invited to the party.  She also agreed there was an occasion when she was living with her aunt that the accused came over for dinner;
  • She recalled being involved in 2008 in a fund raising event called “relay for life”, and that the accused was also involved in that;
  • She could not recall walking part of that event with the accused;[48]
  • She agreed that she turned 21 in 2010, and that she had a 21st birthday party at the accused’s house.  Her mother organised the party;
  • The complainant recalled purchasing the accused’s Ford BA Falcon in 2010.  It was arranged that she would pay the accused the value of the car in cash instalments;
  • She recalled that her mother and the accused entered their relationship in about 2014.  When asked if she was aware whether her mother was given notice by the accused to move out of the house, she said:

“I wasn’t really involved in any of that.  I just had a child and our relationship was very strained.”[49]

  • When asked if she could remember in 2014 confronting the accused about trying to kick her mother out of the house, she said:

“My mum had attempted to commit suicide, and I turned up at that house.  And he was walking around, smirking.  And, yes, I approached him in the kitchen and told him it was his own fault and he needed to do it.  It was his fault that she’d done that, and he should be doing the right thing.”[50]

  • She confirmed that she gave birth to her first child in September 2014;
  • When asked if she was aware in 2015 of an application by the accused to the Queensland Civil and Administrative Tribunal to evict her mother, she said:

“I was informed that all my family had been locked up because he had – they turned up in a big kerfuffle broke out.  So I had to call the police station to find out why they were – what was going on.”

She said she did not know the context of “how that all went down”, but she believed that she had been given information that the accused had successfully applied to QCAT to have her mother and brother evicted;[51]

  • The complainant accepted that she had approached the accused to collect childhood toys of hers, which were missing.  She could not recall the exact date that arrangement was made.  She was reminded that on 20 January 2018 that she sent a Facebook message to Amy Thornton.  She said too that earlier that morning she had gone over to the accused’s premises to try and retrieve her property.  The accused’s nephew opened the house to let her and her husband in, and they searched through some boxes.  Her property wasn’t there.  During the morning the accused turned up at his house, and there was a conversation about the complainant’s childhood property.  The complainant accepted she was upset that she could not find her childhood property, and at some point the accused said that he had sold stuff at a garage sale.  She accepted that she was upset about that.  She denied making threats to the accused about going to the police about the property;
  • The complainant conceded that on 20 January 2018 there was an altercation between the accused’s nephew and her husband, where the nephew chased her husband with a shovel.  She said that her husband said to the accused, “I know what you’ve done to [the complainant] and it’s not OK.  She accepted that there was also a conversation about the nephew smoking drugs in the house and a threat to tell the police about that.  She did not recall her husband saying to the accused “game over”.  She accepted that her husband “potentially” may have said that.[52]  The complainant accepted that it was later that same day, 20 January 2018, that she messaged Amy Thornton on Facebook about getting assistance.  She accepted that the first thing she raised in the message with Amy Thornton was about her property issues.  She accepted that Amy Thornton told her it would be difficult in relation to the property, and then she made mention of the accused being a paedophile;
  • The complainant said that she had made an anonymous call to Police Link, before going to the Caboolture Police Station on 25 January 2018;
  • She accepted that she commenced giving a statement to Detective Bicanic on 25 January 2018, but she did not sign her statement until 21 October 2018, some 10 months later.  She accepted that in the intervening period there were “lots of email and communication between you and Officer Bicanic about the contents of her statement.”[53]
  • She accepted that over that period of time Detective Bicanic would send her a draft statement with questions, and there were occasions when she went back to the police station to provide some details in person.  She accepted that she had added details to the statements during that period, and then finally on 21 October 2018 she signed it;
  • She agreed that the accused had a job when she first met him, when she was still living with her family in New South Wales;
  • She could not recall the accused tickling other children.  In respect of the whipped cream incident, she accepted that that was on her 14th birthday.  She recalled there were other people in the house.  She could not recall other people “having fun with the whipped cream”, or other people being sprayed or covered with whipped cream or food;[54]
  • She could not recall if it was her plan or the accused’s plan to give her mother a break and visit her friend in New South Wales.  She accepted that the accused paid for the airfares to New South Wales;
  • The complainant accepted that she had not told her mother about the allegations before she went to police in January 2018.  She accepted that she asked the police when they were proposing to contact her mother, as she wanted to tell her mother about the allegations first;
  • She did not recall telling her friends Jessica De Rouw, Elijah Smit, Jasmine Butler, Kirsty Leuken or Kelly Morrell that the police officers would be contacting them;[55]
  • She accepted that before she went to the police in 2018, she had never told her brothers, or her grandmother about the allegations;
  • She could not recall if she told DTC and Alan Walsh at the same time about the allegations at the factory;
  • She could not recall speaking to her mother about working out her ages at relevant times.  She added that “I’ve never sat down and had a conversation with her about it, no. … I mean, over the years, I guess I may have asked her how old we were when they separated.  But we’ve never sat down and had a conversation about it.”[56]
  • In respect of her evidence that the first occasion when anything sexual occurred was him coming into the room and touching her on the vagina, she accepted that in her evidence in chief she said that occurred when she was 11 years old.  However she conceded she was not certain that she was 11 years old at that time.  She said “well, I put it back to that because that was the age when I met him.”[57]  When asked if she could have been 13, she said “I don’t recall”;
  • The complainant accepted that she said in her police statement that she was 13 years of age at the time of the first incident;[58]
  • The complainant was asked about the occasion when she said the accused first penetrated her vagina with a finger.  She accepted that she said that happened in a matter of months after the first incident.  She could not recall exactly how old she was at that time, saying “I linked ages with milestones and things that happened around that time and that’s how I worked it out for the statement.”[59]
  • She said she was potentially wrong in respect of her age at the time incidents occurred.  She added:

“So - which is what I said before, is my sentence link to certain milestones, and that’s what’s contributed to that.  However, when I look back, I never recall knowing him when he wasn’t sexually abusing me.  Which is why the age – whether it be 11 or 13 – is – it’s in the – I’ve written to the best of my knowledge at that time, what age I believe I was.”[60]

  • When asked about the contradictions in ages between her police statement and her evidence in court, the complainant said:

“Yes.  But I also understand it was a very traumatic time in my life, and I’ve had to relive it time and time again.  So I put in –, in that statement at that time to the best of my knowledge, and I’m speaking to the best of my knowledge, now.”[61]

  • The complainant accepted that she made no mention in her police statement that after the first digital penetration of her vagina, she noticed some blood;
  • When asked if she had developed romantic feelings for the accused, she said:

“I find it hard to agree or disagree with that because I feel that the context and the way it was instilled and I was groomed in – in some way to believe that what was going on was – he had feelings for me and I had feelings for him throughout the course of it.”[62]

  • She accepted that “during the middle of it” she was attracted to the accused, then adding “I wouldn’t say attracted but I felt it was more, it was more of a relationship during a period of time.”  She accepted that she came to this view when she was between 16 and 17;[63]
  • She rejected the suggestion that after she had turned 16 she made a move in a romantic sense towards the accused.  She rejected the suggestion that she came up with the idea of having her mother travel to New South Wales in order for her to spend time with the accused;
  • She disagreed that the first sexual encounter between the two of them was at Christmas 2005 when she performed oral sex on him;
  • She agreed that while her mother was in New South Wales she and the accused engaged in sexual intercourse, which was consensual.[64]  She disagreed that that was the first time that she and the accused had sexual intercourse;
  • She accepted that she and the accused had consensual sex “many times” over the weekend when her mother travelled to New South Wales;
  • In respect of the complainant’s evidence about the accused commenting on her weight, she accepted that she did not put that in her police statement;
  • She accepted that there was a conversation with the accused about him filming them having sex.  She accepted she agreed to have sex with him on that occasion, on the understanding that he would record the activity then delete it straight away;[65]
  • It was put to the complainant that the accused never touched her on the vagina when she was 13 years old, to which the complainant replied: “I can’t be certain that he never touched me, no.”
  • It was then put more simply, that the accused never touched her on the vagina when she was under 16 years, to which the complainant disagreed;
  • She accepted that during the tickle games sometimes her mother would yell out and say “cut it out”.  She accepted that she never yelled out to her mother that the accused was touching her on the vagina.
  1. [68]
    It was put to the complainant that sexual activity never occurred when she was under 16, to which the complainant rejected.  It was also put to the complainant that the accused never had sexual activity with her on the side of the road on the way to her work, in Gladstone, that he never penetrated her with his toes or a bottle, never attempted anal intercourse with her, and never had sexual activity with her at Logan Textiles.  All of those suggestions were rejected by the complainant.
  2. [69]
    The complainant denied that she was upset because the accused was evicting her mother and brother from his house; the complainant said that she had been encouraging her mother to move out for a long time beforehand.[66]  The complainant denied she was upset that her mother and brother had been taken away by police officers; she conceded that she was upset that the accused had sold her property.
  3. [70]
    The complainant was asked whether the sexual allegations made against the accused were her way of getting back at the accused for not getting her property back.  The complainant rejected that proposition.  She denied lying about sexual activity occurring when she was below the age of 16, and denied lying simply because she wanted to get back at the accused.  The complainant said she would never do that.  She denied exaggerating the true state of things, and denied that there was only a brief consensual sexual relationship after she turned 16.  She denied making the allegations as revenge for the way the accused treated her family.[67]
  4. [71]
    In re-examination, the complainant was asked why it took 10 months to finish her statement.  She said:

“So the detective was on another case as well, and when I would respond to him, it would sometimes take him a period of time to respond, and I would actually – in that period – email him and say ‘well, look, is there someone else I can speak with – that will deal – that is able – that has the time to deal with this?’  But he responded and said that he would be dealing with it, and it was – him taking leave and stuff going on.”[68]

  1. [72]
    The complainant in re-examination was asked why she never made a complaint to her mother or her brothers.  She said:

“So my relationship with mum was strained.  She had left my dad and her whole life revolved around [CR].  And he – I felt that – I honestly felt that, had I told her, she wouldn’t have believed me or she would have blamed me from the get go, because she was very jealous – very jealous – of me and I honestly didn’t think I would have her support if I did tell her. … My brothers are all ADD, ADHD or ODD.  They’ve got – they’ve got stuff going on and we aren’t really close.  They’re not someone I would ever confide in.”[69]

Evidence of the complainant’s Mother and brothers

  1. [73]
    BJS, the younger brother of the complainant, gave evidence that his mother began a relationship with the accused when he started Grade 1 at primary school, around 2001.  He recalled that his family would often go and stay at the accused’s house in Jimboomba.  That occurred a few times a month.
  2. [74]
    Over the years he noted that the accused treated the complainant differently from the rest of his siblings.  It was clear that the complainant was shown favouritism by the accused.[70]
  3. [75]
    He recalled occasions when his family would stay at the accused’s “ex parents-in-law, Sandy and Edmond”.  The family stayed in a caravan; that occurred when he was still in primary school.  He observed that the complainant would sleep on the floor beside the bed in which his mother and the accused slept; the complainant would sleep on the floor closest to where the accused was sleeping.
  4. [76]
    When staying at the accused’s house in Jimboomba, he and his brother, D, shared bunk beds in the spare room.  The complainant would sleep in another spare room closest to the kitchen and lounge room.
  5. [77]
    In cross-examination, he accepted that he had to be evicted by the accused from his house, and that in 2014 his mother was given a notice to leave.  He recalled an occasion when he arrived back at the house when police were there.  He denied that the police were telling him to leave; he said that “we were there waiting on a tow truck to come and collect my mother’s car.  ... And then an incident occurred where – that’s when they arrested me and my brother and put us in the police vehicle and took us away.  There was no ever mention of that we want to let out the property, that we had to leave. … It was all good until an incident occurred out the front.”[71]
  6. [78]
    The mother of the complainant, TLS, gave evidence that she had four children, three sons and a daughter, the complainant.  The complainant’s date of birth was 3 July 1989.
  7. [79]
    She first met the accused in an online chat room in 2001.  They commenced online chatting regularly, when she was living in Murwillumbah.  She eventually met the accused in person around 12 August 2001, at his residence in Hill Street, Jimboomba.  She would visit the accused on most weekends, every second weekend.  That continued for a while until she moved to Queensland in 2002.  She stayed with a friend at Elimbah for probably six to eight weeks while she found her own place to stay.  She signed the lease on her own address in Samantha Street, Boronia Heights on 1 August 2002.
  8. [80]
    When she was still living in New South Wales she would bring the complainant with the two younger boys to visit the accused.  The older boy decided not to travel to Queensland.  She said that she would bring the complainant to Queensland more often than the boys, as the boys stayed with their father and the complainant wanted to be with her.
  9. [81]
    The mother said that the accused got on well with her children; the complainant and the accused “seemed to get along quite well.  It wasn’t seen to be too many issues between them.”[72]
  10. [82]
    She knew that the accused had two children of his own; the accused’s daughter was born the same year as the complainant.  She recalled that the accused would play games with the complainant, “tickle and wrestle and, you know, chase her around and things.”[73]  The accused did not do the same sort of things with the boys when they were present.
  11. [83]
    The mother said that when she moved to Boronia Heights she still had to have regular contact with the accused, visiting him most nights.  If the children were with her, she would stay all night.  Sometimes if the older son was at her home, she would go out by herself to visit the accused and then come home later.  It was about a 15 minute drive between Boronia Heights and Jimboomba.
  12. [84]
    The mother described the accused’s house in Jimboomba as a unit, with three bedrooms.
  13. [85]
    The mother gave evidence that the accused made up a nickname for the complainant, using the individual letters of her name.  The complainant was embarrassed about that and did not like it.  The accused did not have nicknames for her other children.
  14. [86]
    The mother gave evidence that after a period of years at Samantha Street, they moved to Cunningham Drive in Boronia Heights.  The accused still lived in Jimboomba at the unit at that stage.  After staying at Cunningham Drive for about 12 to 18 months, she and her family moved to Gregory Street in Boronia Heights.  These were all rental properties.
  15. [87]
    The mother gave evidence that the complainant moved out of the family home at Gregory Street, Boronia Heights when she had finished school, and had got her driver licence.  She thought the complainant was 17 years of age at that time.[74]
  16. [88]
    The mother said that after living at Gregory Street for about 12 months or so, she went and stayed with the accused at Sandy and Edmonds’ place at Cedar Grove.  There were two caravans out the back of the residence at Cedar Grove, one for the accused and the other for guests and also contained a games room of sorts.  She stayed at Russell Court, Cedar Grove for about three months before moving to an address at Flagstone.
  17. [89]
    She and the accused later moved to an address in Turpentine Drive, Cedar Vale.  The complainant never lived with the mother at that address.  The mother recalled that she and the accused moved to Turpentine Drive, Cedar Vale in December 2008.
  18. [90]
    In respect of when her family stayed at the accused’s house in Hill Street, Jimboomba, she recalled that her boys would sleep in one room in double bunks, and the complainant would sleep in a double bed in another bedroom.  The mother slept with the accused in the main bedroom.  If the accused’s children were staying, they got the double bunks and her boys would be on a mattress on the floor.[75]
  19. [91]
    She said during her relationship with the accused, he would help her out financially, with groceries, bought her a car which she paid back, and help her out financially if they needed anything.  She recalled that the accused bought the complainant’s formal dress for her, and provided a loan for the complainant to buy a car.
  20. [92]
    The mother gave evidence that the accused was a referee for soccer matches, so she and her family would go to soccer every weekend.  Sometimes it could be six games of soccer over a weekend, if not more.  On an occasion the accused and the complainant’s family went to an air show out at Amberley Air Base.
  21. [93]
    She believed throughout the time she was with the accused she was in a relationship with him.  She and the accused were building a house together, at Turpentine Drive, Cedar Vale which the accused financed.  She had “a lot of input with, you know, colour selections and stuff like that and even the design of the house.”[76]
  22. [94]
    The mother gave evidence that the accused had referred to the complainant as his daughter.  The accused would take her to and from school, and if he had a finished a night shift in the morning he would drop her to school, sometimes he would pick her up from school.  When the complainant started working at McDonalds he would take her to and from work.[77]
  23. [95]
    The mother said that throughout her relationship with the accused he had an EL Falcon, black in colour as well as a blue Ford Falcon XR6.  She recalled that the accused obtained the blue XR6 in October 2004.  That XR6 was stolen at some point, so he obtained a 2009 XR6, again coloured blue.  She thought he got that second XR6 in 2009.
  24. [96]
    Throughout her relationship with the accused she recalled that the accused was first working at an engineering business, and then at Logan Textiles, before working for Visy Board.  She recalled that the accused started working for Logan Textiles sometime around 2002 or 2003, until the factory burnt down.[78]
  25. [97]
    The mother gave evidence that she did take a trip to New South Wales to visit a friend; she was living at the Cunningham Drive, Boronia Heights address at that time.  She stayed in New South Wales for about two weeks.  She made arrangements for her mother to come up from New South Wales to look after the children.  While she was away she did have contact with her children.  She recalled a telephone conversation with the complainant about the accused taking her to hospital about a boil on her back that needed treatment.  She also had a conversation with the accused about that later on that evening.[79]
  26. [98]
    The mother recalled an occasion when she and the complainant, and the accused and his children went up to Calliope for Easter.  It was a camping trip.  They stayed with the accused’s ex-wife’s brother and his wife and family; they all camped in a tent in the backyard.  There were quite a few other family members that were there as well and they were staying in the house.  She recalled that the accused’s children stayed in the house, while she, the accused and the complainant were in the tent.[80]  She recalled that on the way home they made a trip to Tin Can Bay.
  27. [99]
    The mother said there was one occasion that concerned her.  This occurred at the accused’s unit in Hill Street, Jimboomba.  One night she woke up and the house was all in darkness.  She went out to look for the accused but she could not find him.  She saw the complainant’s door open and found the accused in bed with the complainant.  When asked what she did, she said:

“I just lost it and went off at him, got the children up out of bed, the two boys, obviously in the other room in the bunks.  Got them out of bed and headed back home to Boronia Heights.”[81]

  1. [100]
    The mother said that she thought the complainant was about 14 or 15 at the time; she later changed that to say “no, she would have been younger because she was only – yeah.  So, no, she was probably 13.”[82]
  2. [101]
    The mother said that she verbally abused the accused, took the kids and went back to her house.  By the time she got home she had received several text messages from the accused, saying that he had been sleep walking.[83]
  3. [102]
    The mother said that she continued to visit the accused and be in a relationship with him, “because I believed what he’d said to me about sleepwalking because he did have different occasions where, when I was staying there, that I’d wake up and he’d be underneath the bed or out in the kitchen doing something or getting dressed, going to fix someone’s car while asleep.  So, yes, he did suffer from sleepwalking.”  She said that her relationship with the accused ended in March 2014 “or thereabouts”.
  4. [103]
    In cross-examination, the mother accepted that she had worked at Logan Textiles for “probably six months, maybe”.  She recalled that the business burnt down in about October of 2004.[84]
  5. [104]
    In respect of the mother’s trip to New South Wales, she accepted that the flights were paid by the accused.  She could not recall the year that trip took place, it was either 2005 or 2006.  It took place in either January or February.  She was questioned about her statement to police, and she conceded that she had told police that the trip to New South Wales was in late January or early February of 2006.[85]
  6. [105]
    In respect of the incident when she found the accused in bed with the complainant at Hill Street, Jimboomba, she conceded that she told the police that that incident took place in about 2005 or 2006.[86]
  7. [106]
    The mother accepted that in March 2014 the accused was trying to evict her from the Turpentine Street, Cedar Vale address; and that he gave her a notice to quit.  She accepted that she tore that notice up in his face.  She accepted that the accused then had to apply to the Queensland Civil and Administrative Tribunal to have her leave the address.  She agreed that the police had to come and remove her and her sons.
  8. [107]
    The mother accepted that her property had been sold at a garage sale; and that she told the complainant that some of her property had been sold at a garage sale.  When asked if the complainant was angry about that, the mother said “[the complainant] got quite a fair bit of her stuff back.”  She accepted that the complainant did not get all of her property back, but maintained that she had the childhood toys of the complainant.[87]
  9. [108]
    DRS, another brother of the complainant, gave evidence about meeting the accused with his mother sometime in 2001.  He recalled that they would stay with the accused on weekends, and then on a couple of nights a week sometimes.  He said that when they stayed at the accused’s unit at Hill Street, Jimboomba, he would sleep in a bunk bed with one of his brothers.  He said that the complainant would sleep in a spare bedroom.
  10. [109]
    In respect of the accused’s relationship with the complainant, he described the accused treating her “like a queen”.  He said that “he’d go out of his way to do anything and everything for her.”[88]
  11. [110]
    He gave evidence of an incident at the Hill Street, Jimboomba unit when there was a food fight.  The complainant went to have a shower, and he saw the accused using a card to unlock the door and spray whipped cream on her when she was in the bathroom.[89]  On another occasion he had walked down a hallway at the Hill Street, Jimboomba unit to get a drink of water and saw that he was in bed with the complainant.  As a result he went and woke his mother up, and the family left.[90]
  12. [111]
    In respect of the whipped cream incident, he said that the complainant “would have been no older than 13, 14.”  In respect of the second occasion when he saw the accused lying in bed beside the complainant, he said that he would have been 12 at that time; the complainant was two and a half years older than him, therefore she was 14 and a half at the time of that incident.[91]
  13. [112]
    He recalled his family staying with the accused in a caravan at a place at Cedar Grove.  He said that the sleeping arrangements were his mother and the accused in the bed, he and his brother down at the foot of the bed, and the complainant sleeping on the bed on the floor, on the accused’s side of the main bed.[92]
  14. [113]
    In cross-examination DRS admitted that he didn’t like the accused, and had never liked him.  He admitted that the accused was the cause for his mother and father separating.[93]
  15. [114]
    DRS said he was aware that the accused went to QCAT in 2015 to have his mother evicted from the address in Turpentine Street, Cedar Vale.  He was not initially present at that address when police arrived to remove his mother, but arrived some way through the incident.  He accepted that he and his brother were arrested, along with his mother.  When asked “so there’s no love lost between you and  [CR]?”, DRS answered “there’s no love to be had.”[94]  He admitted that he loved his sister, and he would do anything for her.

Preliminary complaint witnesses

  1. [115]
    Amy Thornton gave evidence that she met the complainant in High School in about 2004.  She did not know the accused.  She recalled that she had a Facebook message exchange with the complainant in January or around 20 January 2018.  She was shown Exhibit 2, and agreed that was the electronic communication she had with the complainant.
  2. [116]
    In cross-examination, Ms Thornton said that the complainant was aware when she was training to be a police officer, and she would have known when she was sworn in as a police officer.  She said that over the years she and the complainant would communicate on Facebook for life events, “when either of us was pregnant with a child or birthdays, but not regular conversations, as such.”[95]
  3. [117]
    Ms Thornton now confirmed that the only conversation she had about sexual misconduct between the complainant and the accused was contained in Exhibit 2.
  4. [118]
    Kelly Ann McMurdy (neé Morell) gave evidence that the complainant was one of her best friends.  They met in High School in Grade 8.  She continues to be friends with the complainant.  She recalled meeting the accused a number of times, as he was the complainant’s mother’s boyfriend.
  5. [119]
    When asked if she had ever had a conversation with the complainant about things happening with the accused, she said:

“There was one time she did tell me a little bit, but she was just trying to recall what had happened and she was telling me that something that had happened but she wouldn’t go into too much detail but she did tell me that there was a time where [CR] had tried to open up the bathroom with a knife, and that was as far as she went.  She didn’t want to give any further detail.”[96]

  1. [120]
    Ms McMurdy said that the complainant was “trying to recall a time where some, like, sexual abuse had happened, and she couldn’t remember how old she was, but she was trying to recall the house she was in and that was one of the defining things that she could remember, was that particular bathroom and that door.”[97]  Ms McMurdy was not sure exactly when this conversation took place, it could have been three to five years ago.
  2. [121]
    In cross-examination, Ms McMurdy conceded that she may have had the conversation with the complainant about the incident in the bathroom after the complainant had filed charges with police.[98]
  3. [122]
    Elijah Smit gave evidence that he met the complainant at high school.  He recalled a conversation with the complainant shortly after they left high school.  He thought he was between 17 and 20 years old at the time of this conversation.  He said:

“I recall that she had – or that she informed me that she’d been the victim of a sexual assault – the words she used was ‘rape’ – and that had occurred sometime ago and she now felt like she was ready to tell me at that point in time.”[99]

  1. [123]
    He recalled that the complainant told her that she had been sexually assaulted by the accused.  He recalled that the complainant told him that it occurred while she was staying at the accused’s house.  She did not provide any further details and he did not feel it appropriate to question that.[100] 
  2. [124]
    In cross-examination, Mr Smit recalled that the complainant mentioned that she had spoken to her mother about the allegation, but she didn’t think her mother believed it, and that she thought her mother blamed the complainant for it.[101]
  3. [125]
    Jessica De Rouw gave evidence that she knew the complainant from school, first meeting her in Grade 10.  She also knew the accused, as she knew the accused’s daughter.  She recalled a conversation with the complainant after they left school, either at the end of 2006 when they left school, or a couple of years afterwards.  She could not remember where she was at the time of this conversation.  She said that: “She didn’t disclose a lot of information.  She just said that she’d been sexually abused by this person.”  She could not be sure if the words “sexually abused” were the exact words used.[102] 
  4. [126]
    Ms De Rouw said that “I don’t know what other words she would have used, but it was that she had been abused by him, [CR].”[103]
  5. [127]
    Ms De Rouw recalled a second conversation when she was with the complainant at Ms De Rouw’s house in Glen Eagle.  The complainant had been receiving texts messages from the accused, and she revealed the nature of the text messages.  She said this “would have been not long after that, actually, that 2008 period.”[104]  She could not remember actually seeing the messages, but the complainant felt like they were controlling messages.
  6. [128]
    Ms De Rouw recalled another conversation with the complainant about the complainant’s mother seeing her in bed with the accused, and not doing anything about that at that time.
  7. [129]
    The complainant’s aunt, KMW, knew the complainant through her husband; she was his niece.  As a result, she had known the complainant for a long time, and at some point she also lived in Murwillumbah, New South Wales.
  8. [130]
    She gave evidence that at some point, about 2007 or 2008, the complainant came to live with her.  She recalled having a conversation with the complainant on an occasion, when she came home from work early and was upset.  She gave the following evidence when asked to recall what the complainant said:

“She’d come inside crying and she’s just ‘[CR] did it.  [CR] did it.’  No, she’d come in crying first and I said, ‘what’s wrong?’  She said, ‘[CR] did it.  [CR] did it.’  I said, ‘did what?’ and then she said, ‘[CR] raped me on – a few times.’  And then I just held her and let her cry and cry and cry.”[105]

  1. [131]
    KMW recalled that this conversation took place around 2007 or early 2008.  She did not speak to the complainant about this on any other occasion.
  2. [132]
    In cross-examination, KMW agreed that the complainant did not go into any specific details about what rape meant, or how old she was at the time.
  3. [133]
    The complainant’s husband, DTC, gave evidence that he first met the complainant at around 2007 at his workplace, a cabinet making business.  As a result of meeting the complainant, he came to meet the accused.  He was then in a relationship with the complainant’s mother.  The complainant worked with him in a team in which Alan Walsh was the foreman.  DTC gave evidence of a conversation he had with the complainant at the factory when they were on “smoko”; he thought it was about 12 months after the complainant started working, around 2007.  When asked about the conversation he said:

“She had told us that [CR] had sexually abused her and that there was an instance where [SDT’s] mother had found [CR] in her bed.”

  1. [134]
    When asked what the exact words were, DTC said it was more like “had sex with her, coerced her to have sex with her”.[106]
  2. [135]
    DTC was asked if there were any other times he had spoken to the complainant about things happening between her and the accused.  He said that she had not at any time elaborated what actually happened. 
  3. [136]
    DTC said that he confronted the accused about this sometime later, during an attempt to get the complainant’s property back.  He admitted becoming agitated because of the accused’s attitude, and ignoring the situation concerning the complainant’s property, and that he may have sold some of it.  He gave the following evidence:

“I said that I knew what he’d done.  [The complainant] told me what he had done and I’ve known all along since I’ve been with [the complainant] about what he had done.”[107]

  1. [137]
    When asked if the accused said anything in response, the witness said: “No.  He didn’t deny it and he didn’t try and deny it.”[108] 
  2. [138]
    In cross-examination, DTC admitted that the complainant got upset on this occasion when she was trying to get property back from the accused; he admitted that he got agitated as well.  He accepted that when he said to the accused “I know what you did”, he did not provide any details about what that meant.[109] 
  3. [139]
    DTC stated that he commenced a relationship with the complainant about two to three years after the complainant commenced work at the cabinet making business.
  4. [140]
    In respect of the conversation with the complainant, DTC accepted that he couldn’t remember the context of words she used “but it was along the lines of coerced to have sex with her.”  He accepted that the complainant did not say when it happened, or how old she was at the time.
  5. [141]
    DTC rejected the proposition that what she said was “she was having sex with a guy and it was her mum’s boyfriend”.[110]
  6. [142]
    Alan Walsh gave evidence that he used to be a foreman at a cabinet making business.  He first met the complainant sometime in 2007 or 2008.  He thought she would have been about 17, maybe a bit more at that time.  He knew the accused as he had come to the workshop a number of times.
  7. [143]
    Mr Walsh gave evidence of an occasion when the complainant told him about things that had happened between her and the accused.  He said:

“Well, she told me one day that – that she was having sex with him and I said, who with, and says, my mum’s boyfriend.  And another time she’s – she come and spoke to me about, you know, avoiding – I said, you know, I said – because I talked to her about a few things.  I said, you know, how old were you back then and she’s, I was 15.   Shit, okay.  Well that – that doesn’t ring a bell.  That’s no good.  And then another time she told me – that was about a week or so later, maybe, that [CR], the guy come in, and wanted something and she said, no, and he fell asleep and the mum come in and he says, I was sleep walking.  That’s what she told me.”[111]

  1. [144]
    Mr Walsh said that this conversation took place about six or seven months after the complainant commenced work.  He said that DTC was in the shed at the time, but not near where he and the complainant were. 
  2. [145]
    He gave evidence that he had a second conversation with the complainant, about a week and a half later.  It occurred in the same small shed that was used to build cupboards.  When asked what he could remember her saying, he said:

“She’s talking about things and I said, you know, okay.  I said, well – I just asked.  I said, you know, was this going down?  I said, well, how old were you, and she said, I was 15.  Oh, okay, that’s not – that’s not good, that’s not right, so I just sort of left it at that I was just – and I thought, I – I was trying to process this a bit so, yeah.”[112]

  1. [146]
    Mr Walsh spoke about a third conversation that occurred within a week of the second conversation.  In this conversation the complainant said that the accused had come in and laid down beside her and fallen asleep.  Her mother had come in and asked “what happened?”  and the accused said “I was sleep walking”.[113]
  2. [147]
    Mr Walsh was asked about his statement to police, which he agreed he had signed as being true and correct.  He accepted that in his statement he said: “I think it was then, and I asked her how old she as when it started, where I think she had said she was about 15.”  Mr Walsh went on to say that he had dyslexia, and he had difficulty reading, and what he actually recalled her saying was that she was 15.  He said that what he “probably said to the police is wrong, sign – wrong because I – I can’t speed read on my – at school a guy could go that that that that.  I’m a poor reader.”[114]
  3. [148]
    I asked Mr Walsh what his memory was or what the complainant actually said her age was at the time.  He said the following:

“Well, when – when she said – I –she – to discuss what’s going down, I said, ‘this was all was going down,’ I said, ‘how old were you?’  She said, ‘I was 15.’  I said, ‘shit, that’s under age.’  I said, ‘that’s not right.”[115]

  1. [149]
    Mr Walsh agreed that he gave evidence at the committal hearing.  He accepted that he made no mention about being dyslexic in his evidence, nor did he mention that he was dyslexic in his police statement.
  2. [150]
    Terri McDonald gave evidence that she knew the complainant, having gone to school with her at a local community college.  When she first met the complainant, it was in either Grade 10 or 11.  At that time she was living at an address on Undulla Road, Wood Hill.  She also knew the accused, having met her through the accused’s daughter.  Ms McDonald said that she changed schools in Grade 11 but kept in contact with the complainant.  Her family moved to an address in Thermal Road, Gleneagle.  At that address she said that the complainant moved in for a time, at the end of 2007.
  3. [151]
    In cross-examination, Ms McDonald recalled an occasion when the accused came over to that house for dinner.
  4. [152]
    Frederick Otte gave evidence that he had previously been the General Manager in manufacturing for Logan Textiles.  He commenced working there in 2001 and finished work there in March 2004.  He employed the accused as an engineer to work at that business, sometime in 2003.  He gave the following evidence about the accused’s duties:

“It was mainly for the servicing of the manufacturing plant.  That means not the manufacturing plant necessarily itself but other technicians for that.  Let’s say sewerage, drainage, looking after the boiler, compressors, air lines but also electrical and other things where he called on others, contractors to perform those duties.  So he’s the site engineer.”[116]

  1. [153]
    Mr Otte said that the shift hours for the accused varied but mostly it was from 8:00 am to 5:00 pm or 7:00 am to 4:00 pm or 6:00 am until 3:00 pm.  It was usually Monday to Friday.
  2. [154]
    Mr Otte said that there would have been occasions when the accused needed to go to the workshop after hours.  Quite often he would be on call and be required to attend any breakdowns.  He said that the factory was operational 24 hours a day.  As part of his duties the accused had keys to get into the workshop after hours.[117]
  3. [155]
    Mr Otte was aware that there was a fire at Logan Textiles in October 2004.
  4. [156]
    In cross-examination, Mr Otte said that there were PIN codes for the alarms at the business.  Each person who could access the alarms had their own individual codes.  He said that there would have been a system to keep a record of the codes, which were kept for about 12 months or so.  He said there were no security cameras at the factory at all.  The security was “old type security, you know, trigger alarms.”[118]
  5. [157]
    Jasmine Butler gave evidence that she met the complainant playing hockey; she thought it was 2007 when she first met the complainant.  They became friends and remained friends.  She met the accused through the complainant and her family.
  6. [158]
    Ms Butler said that she and the complainant used to “hang out very regularly”.  She would be with the complainant on occasions when the accused would sent text messages to the complainant, questioning where she was, what she was wearing, who she was with and whether she was still with her partner.  The complainant would read the text messages out to her.[119]
  7. [159]
    Ms Butler said over a period there were occasions when the complainant would tell her about things that happened between her and the accused.  She said that the complainant “never went into a great deal of what happened over the years”.  When asked if she had been told any details, she said the following:

“There was times when they’d be in the lounge room, and [CR] would try to tickle [the complainant] as a disguise for touching inappropriately.  Or when he’d say goodnight to her he’d do the same thing then.  Or when [the complainant’s] Mum would go to bed he would then go to [the complainant].”

  1. [160]
    Ms Butler said that she was told these things by the complainant “probably would have been in 2008”.[120]
  2. [161]
    In cross-examination, Ms Butler said that she had spoken to the complainant about her concerns about property left with the accused at Cedar Vale.  She wanted that property back because she wanted to give the property to her children, and she was upset by the fact that that property might have been lost or sold.  The complainant did not tell her that the property had been sold at a garage sale.[121]
  3. [162]
    Ms Butler said that the complainant was concerned about a video that the accused may have had of her.  She said that sex was not discussed, “but I know that did occur.  Well, I was told that that did occur.”[122]  Under further cross-examination she could not recall what the complainant told her specifically, it was her interpretation that the video and pictures related to sex.[123] 
  4. [163]
    Kirsty Leuken said that she had met the complainant when she was growing up as she lived in the same street, and her parents became friends with the complainant’s mother and they all became friends.  She would have been around six years old and the complainant eight years old when they first met.  At the time they were both living in Murwillumbah. 
  5. [164]
    She said that she and the complainant remained friends after the complainant moved to Queensland.  She recalled a conversation with the complainant about the accused, after her 18th birthday.  She said the following about that conversation:

“So she told me that – well, that [CR] was at the time stalking her a bit or had been stalking her at her – like, because she’d moved out of home, so she told me all about him, like, showing up to her house and sitting out the front of her house in his car.  And then she shared – she didn’t really go into much detail, but she did say that there was some sexual abuse that – she didn’t tell me much then, but over the years, she has told me and divulged more information.”[124]

  1. [165]
    Ms Leuken said that she had this conversation with the complainant the same year she turned 18.  She thought the conversation had occurred not too long after her 18th birthday.  When asked if she could recall as best she could the exact words the complainant used, she said the following:

“She has told me previously that she – [CR] used to sneak into her bedroom at night time and used to crawl into her bed and cuddle her.  She did mention that he sort of used things to, I guess, make her feel in debt to him.  So she told me that he said things like – well, he made out that, you know, he pays rent or he’d buy her gifts and stuff and that made her in debt to him.  So she would feel obliged to, I guess, engage in sexual activity, and she has said that they have engaged in sexual intercourse and a head job as far –that’s in her words.  She has that…and that she has given him head jobs.”[125]

  1. [166]
    When asked if the complainant told her when the sexual activities occurred, she said:

“She said that they started, I think, when she – I can’t really remember exactly.  But I’m pretty sure she did tell me it was around 14 – when she was around 14/15 years old he started sneaking into her room.”[126]

  1. [167]
    Ms Leuken said there was a conversation with the complainant when she spoke about at least one occasion being filmed, and that she was concerned that he still had the tapes despite him claiming that they had been destroyed.
  2. [168]
    In respect of the conversations in which the complainant outlined that the accused would sneak into her room and sexual activities would occur, Ms Leuken said they occurred a long time ago.
  3. [169]
    In cross-examination, Ms Leuken conceded that she did not know exact dates of when she had conversations with the complainant.  She accepted that there were conversations in 2018, and she could not recall which parts of the narrative were told to her in 2018.[127] 

Evidence of the arresting officer

  1. [170]
    Ivan John Bicanic was a Detective Senior Constable at the time he gave evidence, and stationed at the Caboolture Child Protection Investigation Unit.  His investigation into the complainant’s allegations commenced on 24 January 2018.  He took the statement from the complainant, and it was not finalised until 21 October 2018.  The statement was compiled through correspondence by email and speaking with the complainant over the telephone, and sometimes at a police station.  During the period over which the statement was taken, he had taken time off for leave.  He said that he was also occupied with other investigations.[128]
  2. [171]
    In cross-examination, Detective Senior Constable Bicanic agreed that a number of drafts were prepared of the complainant’s statement, and that there were various exchanges of emails with the complainant filling in blanks as requested, or adding further things as time went on.  He also gave evidence that he was involved in the pre-text telephone calls that were made by the complainant.

Exhibit 2 – the Facebook Messenger conversation

  1. [172]
    As stated above, the witness Amy Thornton had a Facebook Messenger conversation with the complainant sometime around 20 January 2018. The conversation reads as follows:

STC: Hey! Can I rack your brain for some advice?

AT: Sure

STC: Ok so mum had a messy breakup with her ex. He wouldn’t allow he [sic] to take her stuff. Then knowingly sold/got rid of my belongings. Knowing they were mine. Is that legal? Why belongings were of significant value, stored at his house. Now he is claiming he didn’t know they were mine, and mum abandoned them there so he had a garage sale and sold them. I’m talking my IPad, PlayStation, wii, PSP, and all my belongings from when I was a child. So it’s of significant value

AT: Ah ok, difficult to prove criminal offence, especially when he’s claiming he didn’t know, possibly to prove civilly if your mum wants to take him to court.

STC: It would be me actioning it on my part. Mum not involved. Purely for my belongings. I have serial numbers too. I considered listing as stolen?

AT: Go to your local police station and talk to them, but they’ll probably advise it’s more civil. Did he give your mum any notice to pick up the belongings?

STC: Apparently he did. But he let it slip that the notice came to his address so she never received it. I’ll go to my local police station tomorrow. I’ve been considering taking further action in regards to him being a pedaphile. But haven’t got the guts up to do that yet. [Emoji symbol]

AT: Should, that stuff defiantly needs reporting. Even better if your willing to provide a statement.

STC: Wouldn’t it be outdated by now? It was some time ago now. I mean [DTC] knows about it. But I don’t want it getting out publicly. I don’t want people looking down on me, pitying me for it. Just awkward.

AT: Trouble is if he’s doing it to someone else.

STC: Yeah that’s a good point. Will they notify him that I have made a statement about that? What has me considering it, is he videoed it once when I was younger and the thought of him having it makes me sick! (Sorry for TMI)

AT: All good, he will get notified that you’ve made a statement because they’ll have to question him about it then they’ll decide if there’s enough evidence to do a raid on his house, if you didn’t want to make the statement you could crimestoppers and provide information in regards to having child pornography.

STC: Oh there’s a thought! They may be able to get it!

AT: You could do that anonymously and if you provide lots of information about where you think it’s kept. You can also put in your complaint that you were a victim. It makes it more reliable. Hopefully Child Protection will execute a warrant.

STC: That’s a great idea! I will do that! Thank you!

AT: No worries. Hope it works out xx

STC: Thank you.

The pre-text telephone calls 

  1. [173]
    Exhibit 3 is a disc of telephone conversations between the complainant and the accused, recorded on 31 March 2018 and 21 July 2018.
  2. [174]
    In the telephone conversation of 31 March 2018, there was an exchange concerning a video recording of the two of them having sex; the complainant stated “I think I was like 16, and it’s just something, a decision that was made, and I am concerned that it may still be on video somewhere.” The accused said that it was deleted, after they both watched it.
  3. [175]
    The following exchange took place:

STC: Sort of, so I can deal with it myself like, how it come about. Like, did I, did I do something to start it or? I, I just don’t understand.

Accused: Oh, I’m not exactly sure how it all happened …

STC: I just feel like –

Accused: To be honest.

STC: You know … I was just … I think I was only like 14 or something and it just …

Accused: Oh, I don’t think that you, I don’t think you were that young.

STC: How old do you think I was?

Accused: Well I’m not too sure, I think you were only just about 16.

STC: Well I’m pretty sure … I was um, I just want to know like, pretty much for my like, I, I’ve gotta deal with obviously what happened now … Um, and you know, like from, from my memory we would, having sex quite a lot. Like when mum was at work and, well not at work, but mum wasn’t there.

Accused: Mm

STC: Um, and I come from school and stuff. Um, like did you have feelings for me? Is that why it happened? Or was it just something that happened, or?

Accused: I don’t know. Can’t answer that question.

STC: But, so. Do, do you think it was right …

Accused: Anyway …

STC: Looking back now, like.

Accused: I don’t know, I don’t know.

  1. [176]
    The accused said that no one else had seen the video, nor had he told anyone about having sex with the complainant. There was then the following exchange:

Accused: Yeah. I, I really don’t wanna be talking about it right now, but. No, I don’t know how or what happened or why it was happening.

STC: But I mean like, I think it, yeah. I swear like I was living, I’m, I was tryna count back to when it could have been, I’m thinking I was 14 or 15.

Accused: Mm… I’m not sure about that.

STC: When it, when it started so that’s …

Accused: Mm

STC: Like you, I know you used to take me Maccas and like, it’d happened on the way there. So obviously it was around …

Accused: Mm

STC: The age, I started working when I was 14.

Accused: Oh, I didn’t think you were 14, but anyway.

STC: Yeah I was 14 and 9 months when I stated work.

Accused: [indistinct][129]

STC: I just, so you’ve never told anyone else?

Accused: No

STC: Alright, I’m just, I’m really concerned that it’s gonna come out that’s all. Because that’s something …

Accused: It won’t, it won’t, nothings. I’ve not said nothing to nobody …

STC: Yeah. And looking back now …

Accused: Not a soul.

STC: Do you, do you think it was right? Like, I mean you were sort of dating my mum …

Accused: I don’t know.

STC: At the time. And, it’s just, like to be having …

Accused: I don’t know

STC: You know, sex with me when I was young, it’s yeah it just makes me feel sick really thinking about that it happened. And if I could have done something to stop it.

Accused: I really don’t know. I have no answers for that at the moment.

STC: I just, I feel like you sort of owe me answers, you know?

Accused: Beg your pardon?

STC: I feel like I’m sort of owed answers.

Accused: Mm, same here.

STC: Well how are you owed answers? Like, what, what did I do?

Accused: Probably the same way, same thing you probably tryna say to me.

STC: But I was, but I was like, a child really. I wasn’t, I wasn’t an adult.

Accused: Yeah but there’s a reason, you weren’t being treated like a child by your mother though.

STC: Yeah but …

Accused: Or anyone.

STC: Yeah, so you didn’t look at a child?

Accused: No.

STC: So is that how it came about, maybe because you seen, even though …

Accused: I don’t know.

STC: I was only 15, you seen me as a adult.

Accused: I don’t know.

STC: Well …

Accused: Is that all you wanna talk about right now, or?

STC: Well yeah kinda, ‘cause I, I just need you know, some closure for myself so I can move on. So that’s, that’s why wanted to ask you questions. Like, do you understand that? Hello?

Accused: Yeah, I’m here

STC: Yeah, like I just wanted …

Accused: Yeah …

STC: Yeah answers for myself and for closure like, that’s why I, I wanted to talk to you and get some answers and find out why it happened and.

Accused: Well I don’t want to talk to you anymore about it over the telephone, okay?

STC: Really?

Accused: Yep.

STC: Well.

Accused: Sorry

STC: Well I don’t feel comfortable meeting up with you, does that mean I can’t get answers?

ACCUSED: No, well I won’t lie, I don’t feel comfortable meeting up with you either.

  1. [177]
    In respect of the pretext telephone call on 21 July 2018, the complainant commenced the conversation with the accused about sexual events occurring when she “would have been like 13 or 14”.  The accused said, “I don’t know if it was back that far”.  The following exchange took place:

STC: What I know though, like, you know like, I was, I was the same age as your daughter.  Like, did you not feel it was wrong to be having sex with me when I was that age?  Like when I was around 13 or 14 or even 15.  Like, did you feel it was…

ACCUSED: I don’t, I don’t, I can’t recall exactly when it started alright.

STC: Well I definitely was, like it was when I, I was working at Maccas, so I was, like I didn’t have my license, I didn’t have a car.  Like, from when I can remember, do you remember we planned that trip for Mum to go away, and I stayed at your house um, for the few days.  Like you’d pick me up, we’d just moved to Cunningham Drive.  And you’d pick me up…

ACCUSED: Um.

STC: And drop me back um, to Nan.  But we were sleeping together all weekend while Mum was gone.  And that was, like I am thinking I was 14, maybe 15 at that time.

ACCUSED: I’m not sure.

STC: So you don’t recall any of it?  Like, I just want some answers.  I, I feel I can’t move on from it.  Like I just want some closure so I cannot keep reliving it and wondering what I done wrong.

ACCUSED: I don’t know, I don’t know what any of us, anybody did wrong.

STC: So you, like, thinking back do you feel it was appropriate to be doing it even from the age of 15?

ACCUSED: Ah, I’m not sure of the answer to that.

STC: Would – do you think it’s appropriate sleeping with 15 year olds?  Like…

ACCUSED: I don’t know the answer to that.

STC: You don’t know the answer to that?

ACCUSED: No.

  1. [178]
    The accused during the conversation queried whether the complainant was trying to get some confession out of him.  The complainant said that she was wanting an apology, and closure for what had happened.  There was this exchange:

STC: So do you honestly, like do you not feel you owe me an apology?  Like I was a child, whether I was 13 or whether I was 15, like I was a child, and you took advantage of that.

ACCUSED: No.

STC: Do you…

ACCUSED: I’m sorry but I’ve got to go and I don’t wanna continue talking about it.  If you wanna talk about it further, well it’s up to you how you go about it.  So I’m sorry…

STC: What do you mean by that?

ACCUSED: I’m not talking about it anymore over the phone.

  1. [179]
    The following exchange took place:

STC: Like you out there that somehow take advantage of that.

ACCUSED: Ah, I didn’t take advantage of you at all.

STC: [CR], I was…

ACCUSED: I don’t…

STC: I was 14, 13, I, I was a child.

ACCUSED: You weren’t 13, you weren’t 13, no way were you 13.

STC: We were living in Samantha Street when it started…

ACCUSED: I don’t know where you…

STC: We had just moved up…

ACCUSED: I don’t know what address that you were living in.

STC: Well you had your Falcon, the black Falcon because I remember…

ACCUSED: Oh I had the…

STC: You took me to…

ACCUSED: Black Falcon for quite a number of years.

STC: Yeah you took to Logan Textiles because you had sex with me at Logan Textiles before it burnt down.

ACCUSED: I beg your pardon?

STC: In the work, workshop area, after soccer one night.

ACCUSED: No, no, no.  That’s, that’s, that’s not on.

STC: I remember it clearly [CR]…

ACCUSED: There are cameras, there are cameras everywhere there.  No way.

  1. [180]
    The accused said in a conversation that he could not recall taking the complainant to Beaudesert Hospital in respect of a lump on her back.  The following exchange took place:

STC: Well, I know it was when I was younger, ‘cause I was definitely at Maccas ‘cause you used to do it on the way to work all the time, on your way to work, you used to drop me at Maccas for the 5.00am starts, so that’s how I keep coming back to that age.  So I don’t know what age you’re linking it.

ACCUSED: I don’t, I don’t…

STC: Back to or what age?

ACCUSED: I don’t know why, I don’t know why you’re even going as far as 13.

STC: Because I want, I’m tryina work out how it started…

ACCUSED: [indistinct][130]  You weren’t 13.  I don’t.

STC: On my fourteenth birthday you come into the bathroom, and you poured the whipped cream down my pants.  It was a big joke, remember?  So that’s how I go back that far, because I remember it clearly that that was my fourteenth birthday.

ACCUSED: I don’t know.

STC: So that’s how I’m going back, and I’m trying to think how it started like, I, I don’t know what I had done to put that on, or, what it was that made you think that it was appropriate as well, and that’s why I’m tryna…

ACCUSED: Well I don’t…

STC: Get closure.

ACCUSED: I don’t know, I don’t know, I don’t know, I definitely do not know.

STC: Well do you at least, honestly, sitting here now, do you think it was appropriate?  The relationship you had with me from that age.

ACCUSED: I have no idea.

STC: So you would do it again with another child?

ACCUSED: No, I wouldn’t do that again at all.

STC: So how, how you can stand there and say that you have no idea…

ACCUSED: I still don’t know, OK?  Listen, I don’t know, and it won’t happen again, and I’ll never, it will ever ever ever happen again.

Admissions

  1. [181]
    Exhibit 4 is a list of nine admissions.  In essence, they are as follows:
  1. The complainant’s mother, TLS and her children moved to Queensland in the middle of 2002.
  1. TLS and her children moved to Samantha Street, Boronia Heights on 1 August 2002.
  1. TLS and her children moved to Cunningham Drive, Boronia Heights at the end of 2004 or the beginning of 2005.
  1. TLS, the accused, STC, and TR and the accused’s children went to Calliope, Queensland in March 2005.
  1. TLS went by herself to New South Wales to visit a friend at the beginning of 2006.
  1. TLS and her children moved to Gregory Street, Boronia Heights in 2006.
  1. STC no longer lived with her mother, TLS after she received her probationary license when she was about 17 years old.  She moved out when her family were living at Gregory Street, Boronia Heights.
  1. The accused lived at Hill Street, Jimboomba from the time he met TS in 2001 until he moved to Russell Court, Cedar Grove in 2006.
  1. TS also lived with the accused at Turpentine Drive, Cedar Vale, from December 2008.

Discontinuance of counts and amendment of counts

  1. [182]
    Leave was given to the prosecution to amend Counts 1, 2, 3 and 4 to have the time period commence on 12 August 2001.  The prosecution also discontinued Counts 7 and 10, as the complainant clearly had not given evidence in support of those charges.

Evidence of the Accused

  1. [183]
    The accused elected to give evidence.  He gave evidence that he was born on 18 March 1967, and is a fitter and turner by trade.  He was currently at the time he gave evidence. 
  2. [184]
    He gave evidence that he met TLS online in a Yahoo chat room.  He met her in person toward the end of 2001.
  3. [185]
    He gave evidence that he was a leading aircraftman in the Royal Australian Air Force for a period; he was discharged on 6 February 2001.
  4. [186]
    He recalled being introduced by TLS to her then husband, and her children.  By that time the accused had separated from his wife.  He said that the separation was amicable, and there was no dispute over anything, and arrangements were made for the care of the children.
  5. [187]
    He said that over time his relationship with TLS became a sexual one.  His contact with TLS was not as frequent until she moved to Queensland.
  6. [188]
    The accused was asked about his relationship with the complainant.  The following exchange took place in evidence-in-chief:

Q: Did you get on well with [STC]?

A: Yeah, I got on with her just as much as I did with my own daughter.

Q: Alright.  And less so in relationship – and more so in relation to [the complainant’s brother]?

A: Yeah, I guess you could say that, yeah.

Q: Alright.  Alright.  What was the nature of the relationship that you had with [STC] once that frequency of visits increased?

A: It was just joking, as – like, there was – there was activities I did with my own kids and they – they would come along.  Just general getting along with kids at that age, I guess.

Q: And you used the word “joking”, what do you mean by that?  Can you explain that a bit?

A: [STC] would play – well, [STC] was a bit of a prankster.  She’d play, like, pranks on everybody.  It’s just general chit chat that would be going on between her and my two kids and – and the boys.  I can’t recall exactly details as such, but it was – it did appear to be pretty happy sort of an atmosphere.

Q: You recall some evidence throughout the – well, do you recall some evidence throughout the trial about whipped cream?

A: Yeah I recall that.

Q: Yeah?

A: Yes.

Q: Can you explain to His Honour what that was all about?

A: OK.  I was living at Hill Street at the time.  I do believe it was [STC’s] fourteenth birthday and I do believe it was probably the middle of the week.  [TS] had called me and said, ‘look, it’s [STC’s] birthday’.  She knew I wasn’t really happy about anybody coming during the week ‘cause I didn’t like the idea of my kids being at my place during the week because of school [indistinct] etcetera.  Yeah, we had – had a – had a birthday cake.  Somehow, some birthday cake got thrown around and the whipped cream had come out of the fridge and there was just a whipped cream fight, I guess.

  1. [189]
    The accused said that he left the Hill Street address sometime in February or March 2006, and then moved to the address of the parents of his ex-wife, at Cedar Grove.  The accused was then asked if at some point, after watching STC grow up, whether the nature of his relationship with her changed.  He gave the following evidence:

“Look, [STC] was – as [STC] and as [TLS] was growing up, I was starting to treat them like adults.  We would talk together and – and that.  But then, with [STC], she approached me sometime towards the end of – it would have been November, December 05 saying that, you know, her mother was getting stressed out over something you could see that, because she was always constantly into the boys and I didn’t like the idea of yelling at the boys, but that’s the way she talked to them.  And she said that ‘Mum really needs to get away’ and I said ‘Well, just arrange for some flights.’  I said, ‘I’ll – I’ll figure out – I’ll pay for the flights.  You organize them online.’ Because [STC] was pretty computer literate, constantly on her computer.  And it wasn’t ‘til 2006 in either February or January or February that she went away for two weeks to, well, I believe it was at Newcastle, I’m pretty confident it’s Newcastle for two weeks and after that, that’s basically it.  And then 2007, she got her licence.  She started – and then she got her – got a job as an apprentice cabinetmaker after she finished her school and I thought ‘Yep, she’s started moving on.’  There was one time where she invited me up to her place.  She was now living at Gleneagle, in 2007, I believe – I’m not too sure whether it’s [indistinct] and invited me over for dinner and, basically, after that, she sort of moved on.  I just took as, ‘OK. I’ve got my driver’s license.  I’ve got my freedom.’  And she’s now got an apprenticeship as a cabinetmaker and things went on from there…  Well what happened [STC] approached me.  She gave me the line of – about Mum being stressed with the boys, because they have ADHD and she just believed that she needed to go and visit her friend, called Lou, I believe her name is, and she was down in Newcastle and wanted to know if I can help her out and I said, ‘Yeah, I can do that.’  She also stated that, you know, ‘OK.  Well, that will give us a bit more time together.’  It was at that time I said to her that, ‘you realize what you’re asking of me?’  And she said – she basically said yes and I said, ‘look OK.  You’re better than me on the computer, you can organize the flights, give me the details and I’ll pay for the flights.’  And from there, she went away on her trip away – [TLS] – that’s her mother – and we spent the weekend away together at my place, on one of those weekends, for the two weeks away.  Basically that’s where it started. …  Well, I’m not a hundred percent sure but we did have sex over that weekend.  Consensual sex, definitely.  And I would have – I think I might have done some trial refereeing games, because it was basically pretty early in the season.  A lot of clubs like to try and get some early games in.”[131]

  1. [190]
    The accused said that when he used the word ‘sex’, he meant sexual intercourse.  He said that he had sexual intercourse with the complainant on “more than two occasions at least” over that first weekend while the mother was away.[132]
  2. [191]
    The accused had difficulty explaining how sexual intercourse came to take place on the first occasion.  He said that STC’s expression that she wanted to spend more time with him meant that she was sexually interested in him.[133]
  3. [192]
    The accused gave evidence that in Christmas 2005 there was a family gathering at the Cedar Grove premises of his ex-wife’s parents.  He was sleeping in an “11 x 11 tent, with a blow-up Queen bed”.  He said that STC came into the tent and spoke about her mother going away.  He said: “And from there, it sort of led into a short but quick oral sex with [STC] and she was rather nervous and – because she was concerned that someone might walk into the van – into the – not the van – into the tent and that was basically it from there.”[134]
  4. [193]
    The accused said that the first incident of sexual activity with the complainant occurred around Christmas 2005, which was the occasion of oral sex in the tent.  There was then an incident of sexual intercourse that took place in January 2006 when the mother went to Newcastle; the sexual intercourse occurred at his residence.
  5. [194]
    The accused described a further occasion of sexual intercourse that took place around the time of the Lismore Show.  STC and her mother were selling tickets at the ticket booth.  TLS called the accused to come down and stay with them because they had accommodation.  When the accused arrived there he saw that there were too many people staying in the accommodation, so he decided to drive home.  STC went with him, and they went to the Cedar Grove address of the parents of his ex-wife.  He and STC went into his caravan and had sexual intercourse, there was a video camera there and he attempted to record their sexual activity.  He said that the recording did not work very well because the lighting was poor in the van; he showed it to STC and she was not impressed with it, and she watched him rewind the tape to wipe the whole tape.[135]  The accused said that that was the last time he had any sexual activity with the complainant.[136]
  6. [195]
    The accused said that he was invited to the complainant’s eighteenth birthday party at the Jimboomba Hall; it was a dress-up party.  He believed that he went to her twenty-first party at his address at Turpentine Drive, Cedar Vale.[137]
  7. [196]
    The accused said that he assisted STC to buy her first car; he obtained a loan and she repaid him for that loan.  Later STC bought from him his blue BA 2004 Falcon.
  8. [197]
    The accused denied having any sexual activity with the complainant when she was under the age of 16.  He denied having any sexual activity at Logan Textiles, or on the side of the road while driving her to work, or near Gladstone, or in Calliope.  He denied ever penetrating her anus with his penis or attempting anal intercourse with her.[138]
  9. [198]
    In cross-examination, the accused confirmed STC would sleep in the third bedroom and her brothers in the second bedroom; he and TLS would sleep in the main bedroom.  He confirmed that sometimes STC would sleep on some lounge cushions or a blow-up bed in the loungeroom or dining room when his daughter T came to stay.[139]
  10. [199]
    The accused accepted that there may have been “one or two times” when he drove STC to her work at McDonald’s, and picked her up when she finished.[140]  He did not recall working any weekends when he worked at Logan Textile; occasionally he worked on Saturdays when he worked at Visy Board.
  11. [200]
    The accused said that he considered both his own daughter and STC as adults when they commenced high school.  He did not think of his own daughter from the time she was 12 as a young child, and he had the same attitude towards STC.[141]
  12. [201]
    The accused was asked about his uncertainty in the pre-text telephone call of 31 March 2018 as to how old the complainant was when sexual activity occurred.  The accused said that STC was “badgering me” during that phone call; he was adamant that there was no sexual relationship until 16 years old, and it was a brief sexual relationship.[142]
  13. [202]
    The following exchange took place in cross-examination:

Q: So you say that the first time you had sexual contact with her was in a tent, December – or around Christmas 2005?

A: That’s correct.

Q: So about five months after she turned 16?

A: Yeah – if that’s – that’s perhaps the case, yes.

Q: And the first time you had any sexual conduct with her at all was her giving you oral sex?

A. That’s correct.

Q. Because she asked you if she could give you oral sex?

A. She didn’t ask.  It just happened.

Q. So she came on to you, though, that’s your evidence…

A. That’s right.  She came into the tent and on to me.

Q. Could you just explain to me how the oral sex ‘just happened’?

A. I really don’t know to be honest with you.  Because I stated to her, ‘you understand what you’re after?  You know what you’re talking about’, and just one thing led to another from there.

Q. Well, what was one thing leading to another?

A. Well, I don’t know.  I can’t recall.  It was quite back – ah quite a while ago.

Q. So at the age when she was 16, how old were you?  I can probably work out the maths but…

A. So it’s 2005.

Q. Yes?

A. So I – I’m 53 now.  So [indistinct] take 15 off that.  So I would’ve been in the late 30s I guess.

Q. Late 30s.  And she was 16?

A. That’s correct.

Q. All right.  Was there any, sort of, lead up at all or or?

A. Well, really, it caught me by surprise.  You know, I – I don’t know why we did it or – or anything like that but we’ve been discussing about that because she wanted to be alone with me.

Q. Yes and… did – did it ever cross your mind that that wasn’t appropriate?

A. After what happened it did.  Yes.

Q. Well, it didn’t occur to you at the time when you asked her – I’ll try and use your words, ‘are you sure you know what it means?’

A. Yes [indistinct] ‘you – you know what you’re asking of me?’

Q. Yes, that’s the words yes?

A. Yes, and – and she – she was basically saying, ‘yes’.

Q. But there is that conversation that occurred, as I understand it, sometime before the first act?

A. That’s correct.

Q. All right.  So there was some time before she’d expressed interest in you before the first occasion of oral sex?

A. That’s correct.

Q. Okay.  So you do have time to think about it?

A. Yes I probably did.  Yes.

Q. Okay.  So on this first occasion where oral sex takes place, what, it just – she just pulled your pants down and gave you oral sex?  Is that what happened?

A. No, I – I was – I was in the tent – no, she didn’t pull my pants down.  We were just talking about it and just ---

Q. Talking about what?

A. We – talking about her mother going away and why she wanted to stay with me and be with me for that week.

Q. What did she say?

A. I can’t recall exactly what she said.  We were just discussing it in general and – like I said earlier

Q. Well, you talk about discussing ‘it’ in general, we need you…

A. Discussing – okay.  Discussing it in general discussing it as in her mother being away for the weekend.

Q. Yes.  Okay.  Right?

A. And the fact that she wanted to be alone with me.  Okay.  I had it in my mind why she wanted to be alone with me believing that she wanted to be with me for the weekend – Yeah.

Q. But alone with you to have sexual activity?

A. That’s correct.  That’s – that’s the belief I had.

Q. But did you discuss that with her?

A. Yes, we did.  That…

Q. And she said, what? ‘I want to have sex with you’?

A. Well, it didn’t initially come up but, yes.

Q. But you can’t recall how the oral sex occurred?

A. Not exactly, no.  But I do know that it did happen over that weekend at Christmas time.

Q. All right.  And there was no other activity.  No touching, there wasn’t kissing beforehand?

A. No, definitely not.  No.  There was no kissing or anything like that.

Q. Okay.  So you don’t know how it happened.  There’s talking about being alone and somehow you can’t remember she performed oral sex on you?

A. That’s correct.”[143]

  1. [203]
    The accused said that on this first occasion of oral sex, the mother, TLS, was somewhere around the property.  The accused said he could remember that he did not ejaculate on the occasion of oral sex, but he could not remember how it came about.[144]
  2. [204]
    The following exchange took place in cross-examination:

Q. And so it was about one to two months later then she comes into the tent and has this other conversation with you?

A. Yes.

Q. And it was all her idea?

A. Yes.

Q. You didn’t encourage her.  You just sat back and let it happen?

A. That’s correct.

Q. So you didn’t come up with any of the suggestions of what to do?

A. I never suggested.

Q. So you just let her come over to the tent and you let her put her mouth on your penis?

A. Yes.

Q. And then you let her come over for the weekend?

A. Yes.

Q. So you were just giving in to whatever she wanted you to do?

A. At that time.  Yes.

Q. None of it was your idea?

A. No.

Q. You weren’t sexually attracted to her?

A. No.

Q. So you weren’t sexually attracted to somebody and yet you had sexual intercourse with them?

A. Yes.

Q. The 16 year old that was the same age as your daughter?

A. Yes.

Q. The daughter of the person that you had a relationship with at the time?

A. Yes.

Q. Just on the occasion of sexual intercourse, did you ejaculate on that occasion?

A. I may have.  Yes.

Q. Was there any discussion about contraception?

A. No.

Q. Did you wear a condom?

A. No.

Q. Were you concerned about getting her pregnant?

A. No.

Q. Why not?

A. Because I had a vasectomy.

Q. Right.  When did you have a vasectomy?

A. When I was about 22 or 23 after [T] had been born.

Q. Was there any discussion about that with…

A. No it never came up.

Q. STC?

A. No.

Q. She expressed no concern that you might get her pregnant?

A. No.

Q. Did you ever have a discussion with her mother about the fact you had a vasectomy?

A. Yes.

Q. Could [STC] have been present when that was discussed?

A. I don’t know.

Q. So prior to the point where she performs oral sex on you there would have been absolutely no sexual contact between the two of you before that?

A. No.

Q. It went from nothing to oral sex?

A. That’s correct.”[145]

  1. [205]
    The accused rejected the propositions put to him by the Crown Prosecutor concerning the complainant’s allegations when she was under 16. 

Legal directions

  1. [206]
    I have directed myself on the following matters of law:
  1. The defendant is presumed to be innocent of all charges.
  2. The onus of proving the charges remains at all times on the prosecution; the defendant does not have to prove a thing, let alone his innocence.
  3. The prosecution must prove each and every element of the charges beyond reasonable doubt.
  4. Separate charges have been laid against the accused, and I must consider each charge separately.  I have directed myself in accordance with R v Markuleski (2001) 52 NSWLR 82, that if I have a reasonable doubt about the complainant’s credibility and/or reliability in respect of one or more counts, I should have regard to that generally when I consider the other counts.
  5. The defendant electing to give evidence does not mean that he has assumed a responsibility of proving his innocence.  His evidence is added to the evidence called from the prosecution.  I should not regard this as a case of “word against word”.  It is not a question of me making a choice between the evidence of the complainant and the evidence of the accused.  The prosecution case depends upon me accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence of the accused.  I have directed myself on the standard direction given to juries in the Supreme Court and District Court Bench Book, and the three possible results when an accused gives evidence.  In respect of the pretext telephone calls, the prosecution rely on statements made by the accused as pointing to his guilt; the accused points to statements made by him which point to his innocence.  It is a matter for me to consider what weight I give to the statements, bearing in mind that they were not tested by cross-examination.  Of course, the accused did give evidence and was cross-examined, including about statements he made during the two pretext telephone conversations.
  6. The evidence of preliminary complaints made by the complainant has been led to support the credibility of the complainant only, that is, to show that she has been consistent in her complaints.  They do not independently prove that the offences occurred, and any inconsistencies in what she said to the preliminary complaint witnesses can be taken into account to detract from her overall credibility and reliability.  I have directed myself in the terms of the standard direction given to juries in this case.
  1. In this case the prosecution have relied on uncharged acts of a sexual nature, not only to prove the existence of an unlawful sexual relationship in Count 1, but also in support of the specific charges in Counts 2 to 13.  It is important to note that Counts 2 to 11 allege that those specific counts occurred when STC was under 16 years.  This case is similar to R v UC [2008] QCA 194.  I have directed myself that the prosecution relies on the evidence of uncharged acts not only to prove the unlawful sexual relationship in Count 1, but also to prove that the accused had a sexual interest in the complainant and was prepared to act upon it.  Consequently, the prosecution argues that this evidence makes it more likely that the defendant committed the offences charged.  I can only use this other evidence if I am satisfied beyond reasonable doubt that the accused did act as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue.  If I am not satisfied of these things, beyond reasonable doubt, then that may affect my assessment of the complainant’s evidence.  Further, if I do not accept that the evidence proves that the accused had a sexual interest in the complainant, I must not use the evidence in some other way to find that the accused is guilty of the offences with which he is charged.  If I am satisfied that one or more of these other uncharged acts did occur, it does not follow that the accused is guilty of the offences which are charged.  I must still decide whether, having regard to the whole of the evidence, the offences have been proved to my satisfaction beyond reasonable doubt.
  1. It was put to the complainant by defence counsel that the allegations of sexual offences when she was under the age of 16 years resulted from her anger about how her mother was treated, and her distress about not getting her property back.  It was put to her that she lied in respect of incidents that allegedly occurred when she was under 16, and that she lied about being raped.  I direct myself that if I reject this motive to lie put forward on behalf of the defence, that does not mean that the complainant is telling the truth.  Any failure or inability on the part of the accused to prove a motive to lie does not establish that such a motive does not exist.  If such a motive existed, the accused may not know of it, and there may be many reasons why a person may make a false complaint.  Even if I am not persuaded that any motive to lie on the part of the complainant has been established, that does not mean that the complainant is truthful.  It remains necessary for me to satisfy myself that the complainant is truthful.
  1. When the complainant gave evidence, the court was closed and she had a support person present in court.  That was part of the routine practice of the court, and I must not draw any adverse inference against the accused because that routine practice was adopted.  One witness, Ms Leuken, gave evidence over the telephone.  That is allowed under the practice of the court, and her evidence should not be considered to be any better or worse because of that, and I should not give her evidence greater or lesser weight because she gave evidence over the telephone.
  1. [207]
    There is no question there has been significant delay in the complainant bringing the allegations to the attention of the authorities.  As a consequence there has been substantial unfairness caused to the accused.  I therefore direct myself in accordance with Longman v The Queen (1989) 168 CLR 79, in that it would be dangerous to convict the accused on the evidence of the complainant alone, unless, after scrutinizing with great care, considering the circumstances relevant to its evaluation, I am satisfied beyond reasonable doubt of its truth and accuracy.
  2. [208]
    In addition to oral submissions, counsel for the accused also tendered written submissions which became Exhibit 5.  A number of unsatisfactory aspects of the complainant’s evidence were highlighted including:
    1. (a)
      Her allegations are not corroborated;
    2. (b)
      The complainant has not been able to provide any particulars when making preliminary complaint;
    3. (c)
      The complainant is motivated by property issues;
    4. (d)
      The complainant has failed to come up to proof on some counts on the indictment;
    5. (e)
      The complainant added details that had not otherwise been mentioned previously, eg bleeding occurring after Count 3 and comments about her weight;
    6. (f)
      The complainant was never threatened with violence to ensure her silence;
    7. (g)
      Here initial complaint when speaking to a member of police, albeit a friend was principally in relation to her property;
    8. (h)
      The complainant continued a harmonious relationship with the accused, including an expressed to desire to spend time at the accused’s house when she had the option of staying in New South Wales with her extended family, or with her oldest brother when in Queensland, and sought his help in respect of a loan for her first car, inviting him to dinner, inviting to her eighteenth birthday party, having her twenty-first birthday party at his house, buying a car from him and having a consensual sexual relationship with him once she turned 16.

As a consequence of all of these matters, I am satisfied I should direct myself in accordance with Robinson v The Queen (1999) 197 CLR 162.  Again, as a result of the unsatisfactory aspects of the complainant’s evidence as highlighted by the defence, I must scrutinize the complainant’s evidence with great care, and should only convict the accused of one or more of the charges if I am satisfied of the complainant’s evidence in respect of a particular charge beyond a reasonable doubt.

Closing arguments

  1. [209]
    I have had full regard to the closing arguments of the learned Crown prosecutor and learned defence counsel.  In the circumstances it is not necessary for me to summarise them. 

Consideration

  1. [210]
    As is my practice in a trial by judge alone, I kept notes of my assessment of the witnesses as the trial proceeded.  In respect of the complainant, overall I considered her to be a good witness, who gave her evidence in a forthright manner, and made appropriate concessions.  It was obvious that she had a bad memory in respect of dates and her age when the alleged offences began.  It is a matter of concern that her evidence shifted when asked to remember when the offending began.  Her memory was patchy; she could clearly remember some events better than others.  There were a number of inconsistencies between her evidence in court and her police statement, and her evidence at the committal hearing, as highlighted by the defence in argument and in Exhibit 5.
  2. [211]
    The complainant simply did not come up to proof in respect of Counts 7 and 10.  In itself that does not detract from her overall truthfulness or reliability; an adult trying to recall multiple acts of sexual misconduct experienced as a child cannot be expected to recall with precision each incident.
  3. [212]
    It is a legitimate concern about how the statement was taken over months, in sections, by email and over the phone.  However there was a plausible explanation for that; it is well recognised that a victim of sexual abuse as a child has difficulty detailing that in one long session, and it is to be expected that it may take some time to complete a statement, review it, correct it and then sign it.  A lot of the delay was not the fault of the complainant; the investigating officer was on leave for part of the period and also assigned to other tasks.
  4. [213]
    It was clear that the complainant had a better memory of events that occurred when she was 15 and 16 years of age.
  5. [214]
    In the circumstances the long delay in making a formal complaint to police is understandable, given the accused was in relationship with the complainant’s mother for most of the period, and that the complainant herself developed a relationship with the accused. While the dispute over property and the eviction of her mother was the catalyst for the complainant to seek advice from Ms Thornton, and then go to the police, I do not consider that provided a motive to lie about the offences.
  6. [215]
    The witnesses who gave evidence of preliminary complaint were honest and reliable.  The complaints made to these witnesses were very general in nature, and in my view they do not add too much to an assessment of the complainant’s credibility and reliability.  Of course they provide an important narrative as to how the complaints finally came to the attention of the police. 
  7. [216]
    The complainant’s brother, DS, was clearly hostile towards the accused.  However I do not consider he was an untruthful witness; the significance of his evidence really is that it supported the complainant’s evidence that the accused had shown favouritism to the complainant as they were growing up.
  8. [217]
    The complainant’s mother, TLS, had at times a poor memory.  She did provide some evidence of her relationship with the accused, the various addresses where she and her children lived, and the sleeping arrangements at the Hill Street, Jimboomba address of the accused.  The admissions in Exhibit 4 more precisely establishes relevant residential addresses and events that are relevant to this case.
  9. [218]
    The accused was a poor witness who I simply cannot believe.  He was arrogant and dogmatic in his evidence.  He was unable to give details of how the sexual acts with the complainant occurred.  His description of how the first incident of sexual activity with the complainant occured, involving oral sex in the caravan at Cedar Grove, is simply implausible.  His assertion that sexual activity was precipitated merely by the complainant saying “I’d like to spend more time alone with you, [CR]”, followed by his response, “do you understand what you’re asking of me?” defies logic and common sense.
  10. [219]
    I consider that the accused dishonestly played down his relationship with the mother of the complainant, TLS.  On all of the evidence it is obvious that the two of them were in a de facto relationship, even living with each other towards the end.
  11. [220]
    His inability to describe how the first occasion of oral sex occurred, which on his evidence conveniently took place some five months after she turned 16, is implausible.  On his evidence he did not ask the complainant to give him oral sex, “it just happened.”  He said that “she came into the tent and onto me.”[146]  There was not any preliminary activity such as kissing, fondling or petting; the complainant did not pull his pants down.  He simply could not remember how she performed oral sex on him.[147]
  12. [221]
    Despite this lack of memory, he could however specifically remember that he did not ejaculate.  This is simply not credible.
  13. [222]
    The accused said that after the act of oral sex in the caravan, he did consider that what happened was not appropriate.  Despite that, he gave evidence of having sexual intercourse with the complainant on two later occasions.
  14. [223]
    In my view the accused dovetailed his evidence to fit with his admissions to the complainant in the two pre-text telephone recordings.  It is important to note that in both of the pre-text telephone conversations the accused did not definitely state that sexual activity with the complainant only occurred after she was 16.  At its highest for the accused in the conversation of 31 March 2018, part of Exhibit 3, when the complainant said she was only “like 14 or something” the accused said “Oh I don’t think you, I don’t think you were that young.”  When asked how old he thought she was, he said “Well I’m not too sure, I think you were only just about 16.”  Later in that conversation the complainant said that she had been trying to count back to when it could have happened, and thought she was 14 or 15.  The accused said he was not sure about that.  The complainant said that she started working when she was 14 at McDonald’s, the accused said “Oh, I didn’t think you were 14, but anyway.”
  15. [224]
    In the telephone conversation of 21 July 2018, the complainant asked the accused if he felt it was wrong to be having sex with her when she was the same age as his daughter.  She said it occurred when she was around “13 or 14, or event 15”.  The accused: “I don’t, I don’t, I can’t recall exactly when it started alright.”  Later in that conversation, when the complainant asked if the accused thought it was appropriate to sleep with 15 year olds, the accused said: “I don’t know the answer to that.”
  16. [225]
    Later during that conversation, in response to the complainant saying that she was taken advantage of when she was 13 or 14, the accused said: “You weren’t 13, you weren’t 13, no way were you 13.”  Later the accused said he did not know why the complainant was going as far back as 13.
  17. [226]
    The complainant towards the end of that telephone conversation spoke about the whipped cream incident on her fourteenth birthday.  Significantly, the following exchange took place:

STC: Well do you at least, honestly, sitting here now, do you think it was appropriate.  The relationship you had with me, from that age.

ACCUSED: I have no idea.

STC: So you would do it again with another child?

ACCUSED: No, I wouldn’t do that again at all.

STC: So how, how you can stand there, like sit there and say that you have no idea..

ACCUSED: I still don’t know OK?  Listen, I don’t know, and it won’t happen again, and I’ll never, it will ever ever ever happen again.

  1. [227]
    It is important to note that the accused did not reject the suggestion that he had had a relationship with the complainant as a child.  It is significant that at no time did the accused state that there were only three occasions of sexual activity when the complainant was over the age of 16.  This is significant when one has regard to the accused’s evidence that once the complainant and his daughter commenced high school he viewed them as adults, not children.
  2. [228]
    At the end of the day I cannot accept the accused’s evidence, and it does not leave me in a question of reasonable doubt about the allegations.  I therefore set it aside and go back to the prosecution evidence to see if the charges can be proved beyond reasonable doubt. In accordance with the warnings discussed above, I have scrutinised the complainant’s evidence with great care.
  3. [229]
    I have directed myself on the specific elements of the offences of maintaining a sexual relationship with a child, rape, indecent treatment of a child under 16, and unlawful carnal knowledge of a child under 16, whether under care or not.
  1. [230]
    The complainant describes a pattern of offending which commences when she is young, sleeping in the bottom bunk in the front room of the defendant’s house at Jimboomba, with touching of her vagina on the outside and then over the months and years proceeding to digital penetration of her vagina, then frequent instances of sexual intercourse at various locations which continued after the complainant turned 16.  On the complainant’s evidence she came to accept this type of conduct as simply part of life, and part of her relationship with the accused.  There is a significant inconsistency in the evidence of the complainant as to her age when sexual activity commenced.  In the circumstances however that is not surprising when the complainant is recalling events that occurred years before when she was a young teenager.  I do not consider that this inconsistency detracts from her overall credibility and reliability.
  2. [231]
    As the complainant said in evidence-in-chief, she did not remember a time when the accused was not sexually touching her, and she was trying to go back to the grade she was in at school when she was still in New South Wales.[148]
  3. [232]
    The complainant was able to recall the first occasion, when she and her family were still living in New South Wales.  They had come up to visit the accused and stay with him at Jimboomba.  Her description of the touching of her vagina on the outside in her evidence at R1-14 to R1-16 is detailed and logical, and I accept her evidence that this occurred.  I find the defendant guilty of Count 2, Indecent Treatment of a Child Under 16.
  4. [233]
    In respect of Count 3, the complainant was able to recall the first occasion when she was digitally penetrated by the accused.  Despite being asked to concentrate on the first occasion of digital penetration, the complainant did resort to a general description of what happened on the occasions where there was digital penetration; see R1-17, l 5.  However once she was directed by the Crown Prosecutor to concentrate on this first occasion, she gave a consistent and logical account of this first occasion.  Her description of the accused inserting his finger slowly, and moving it in and out, and that she felt pain when he did so is again logical and credible.  It is accepted that in her evidence at R1-18, l 23 she said that in the morning her vagina was “a bit sore” and when she went to the toilet she wiped her vagina there was a little bit of blood, presumably on the toilet paper.  I accept that she did not mention that detail in her statement to police, but I do not consider that failure detracts from her credibility and reliability on this issue.  The taking of a statement by a police officer is different from examination-in-chief in a courtroom, and it is understandable that a witness may provide more specific detail when asked in court that may not have been sought by police taking a statement. I accept the complainant’s evidence in respect of this incident.
  5. [234]
    The prosecution must prove beyond reasonable doubt that the penetration occurred without the consent of the complainant. “Consent” means consent freely and voluntarily given: s.348 Criminal Code; see also R v Sunderland [2020] QCA 156.
  6. [235]
    In the circumstances I accept the complainant did not consent to that first incident of digital penetration, and that the prosecution have proved this count beyond reasonable doubt. I find the defendant guilty of Count 3, Rape.
  7. [236]
    In respect of Count 4, again the complainant gave a detailed account of the first time the accused penetrated her vagina with his penis.  She was able to provide clear details of the event, including the accused putting a hand over her mouth over the incident.  Her description after the event of “feeling really wet, like, gross” and going to the bathroom, wiping her vagina and seeing blood mixed in with other fluid, has a clear ring of truth about it.[149]  The complainant was vague in respect of her age at the time; the best she could place it was it “being well before my fourteenth birthday”.  At the time of this incident she was going to Park Ridge State High School.  She believed at the time of this first incident of sexual intercourse she was living with her family in Samantha Street, Boronia Heights.  According to the admissions in Exhibit 4, the complainant and her family lived at Samantha Street, Boronia Heights between 1 August 2002 to the start of 2005.  The complainant turned 16 on 3 July 2005.  I am satisfied that this incident occurred when the complainant was under the age of 16 years.  I am satisfied beyond reasonable doubt that the prosecution have proved that the complainant did not consent to the first act of penile penetration and I find the defendant guilty of Count 4, Rape.
  8. [237]
    The complainant said that after this first incident of vaginal rape, sexual intercourse became a regular occurrence.  It is clear on her evidence that the complainant came to accept the sexual activity with the accused as a natural part of life, and became a consenting party.
  9. [238]
    In respect of Count 5, the complainant gave evidence that she thought she was in Year  9 at high school when she first got her periods.  She was still living in Samantha Street, Boronia Heights.  She gave evidence that there was an occasion when she stayed at the accused’s house at Jimboomba with her mother, she could not recall if her brothers were there.  She said at that time she would only wear a pad when she had her period.  She described having sexual intercourse with the accused in the spare room of the Jimboomba house, and that her period blood had seeped out through the sheets and onto the bed.  When she woke up in the morning she pulled the sheets over to cover it.  The complainant could not recall specifically how old she was at the time; her best estimate was she was 15.  The complainant said that she had not had her periods for long before this incident occurred.  The complainant’s mother, TLS, was not asked if she knew when the complainant first got her periods.
  10. [239]
    Earlier in her evidence the complainant was asked about when she first got her periods.  She said that she was older, when she was in Year 9 at Park Ridge, and she did not know if she was 14 or 15 years of age.  She said that she only went to Park Ridge State High School for the end of Year 8 and Year 9, so it was around that period when she went to high school.[150]  I am satisfied beyond reasonable doubt in respect of this incident that the accused had sexual intercourse with the complainant when she was under the age of 16 years.  I am not satisfied that the complainant did not consent to this.  I am satisfied beyond reasonable doubt that the alternative charge of Unlawful Carnal Knowledge has been proved beyond reasonable doubt, and therefore I convict the accused of that alternative charge in respect of Count 5.
  11. [240]
    In respect of Count 6, the complainant gave detailed evidence of having sexual intercourse with the accused after a soccer match at the factory of Logan Textiles.  She was able to give detailed descriptions of the gates to the business, the contents of the factory, and the clothing worn by the accused.  She described the accused ejaculating inside her, and feeling “really uncomfortable” on the journey home as the semen was soaking through her underwear.  Once they got home, she said that the accused told her to give him her clothes as he would wash them with his referee uniform.  The complainant’s evidence is supported by Frederick Otte, who is the General Manger in manufacturing of Logan Textiles who employed the accused as an engineer.  He gave evidence that the accused had keys to get into the workshop after hours.[151]  He also confirmed that there was a fire at Logan Textiles in October 2004, consistent with the evidence of the complainant.
  12. [241]
    I am satisfied that the prosecution have proved beyond reasonable doubt Count 6, and I find the accused guilty of Unlawful Carnal Knowledge.
  13. [242]
    The complainant spoke of a number of occasions when she had sexual intercourse with the accused when he was driving her to work.  This happened on numerous times in different cars belonging to the accused.  The complainant began to recount a specific occasion when the accused was wearing a bright yellow “high vis” jacket.  However the complainant said that there were “a lot of times” when sexual intercourse took place in the back seat of the accused’s car on the way to her work.[152]  She said that the accused would pull over onto a service road that ran along the Mount Lindesay Highway.  In respect of the occasion where he was wearing the “high vis” jacket, the complainant said she “would have been 15 on that occasion”.  The complainant said that she recalled this occasion because he ejaculated inside of her vagina, and when she got to work there was semen over her underwear, and she had to wash her underwear in the sink at work and use the dryer to dry it.[153]
  14. [243]
    The complainant said that on occasions the accused would come into the McDonald’s restaurant where she worked and have breakfast before he went to work.  She could not recall if he did that on this occasion when he was wearing the “high vis” jacket.[154]  When asked how sex would take place in the car, she said:

“Yeah, so he would just pull over and ask me to get in the back seat of the car, and then just pull my pants down a bit and have sex.  By this stage, although I wasn’t a 100 per cent consensual with it, it was normal to me, and this was just something that we done.  So I wasn’t fighting it each time by then.”[155]

  1. [244]
    There was no evidence from the complainant about when she stopped working for McDonalds.  There was clear evidence she started when she was 14, and there was evidence that she got the apprenticeship with the cabinetmakers when she finished school in November 2006.[156]  The complainant said that she was still working when she was 16, and I infer that she was still working at McDonalds.[157]  While I accept there were instances of sexual intercourse in the accused’s car when he was driving her to work, in respect of Count 8 I cannot be satisfied beyond reasonable doubt on the state of the evidence that she was actually under 16 at that time.  As a result I find the defendant not guilty of Count 8, Unlawful Carnal Knowledge.
  2. [245]
    In respect of Count 9, the complainant gave evidence that were occasions when sexual activity took place when the accused took her on driving lessons “out the back of Jimboomba and Flagstone”, and one of her friends used to live on acreage out at Flagstone.[158]  She said that there were “a few times when he pulled over on the side of the road, and it was on Undullah Road which is like an old dirt road.  And he’d pull off to the side, there, and we’d have sex in his car on the side of the dirt road.”[159]  The complainant gave evidence of an occasion when the accused was driving her to her friend’s house at Flagstone when he pulled over into a driveway near a bridge, and had sexual intercourse with her.  When asked how old she was, she said:

“I would say I was probably between 15.  And going to Terri’s house, I would have been in Year 10, 11, or 12; because I went to Flagstone in 10, 11 and 12, and we went to and from that house a lot throughout these those years.”[160]

  1. [246]
    Later in evidence, the complainant said that she was not exactly sure when the sexual acts occurred on the road out to the Flagstone house of her friend.[161]  The complainant said that there was only one occasion when she recalled sexual intercourse happening near her friend’s house.  She said that occasion occurred “it would have been before my 16th birthday, between my 15th and 16th I would say”.[162]
  2. [247]
    Again, the complainant is not definite that this incident occurred before her 16th birthday; at its highest she said “it would have been” before her 16th birthday.  In these circumstances I cannot be satisfied beyond reasonable doubt that this incident occurred when the complainant was under 16 years, and I find the accused not guilty on Count 9, Unlawful Carnal Knowledge.
  3. [248]
    Count 11 relates to the allegation of sexual intercourse taking place near Gladstone, at Calliope.  The complainant was “pretty confident we were, from memory, in a tent, staying in a tent” at their property of the accused’s former brother-in-law.[163] The complainant said that sexual intercourse with the accused took place back in the tent.  She said:

“So he would just say it like – lay down or just do it and by then although it wasn’t – I was just complain.  So, okay, this is normal, this is what we do, if I do it I’m told it will be over with.”[164]

  1. [249]
    The complainant said that she could not remember anything else about that occasion in the tent near Gladstone.  She said that “it doesn’t really stand out”.[165]  She did earlier say that she recalled while staying there, there was a conversation about the accused being caught sleepwalking with a pillow, and that made this occasion of having sexual intercourse with him in the tent stand out.[166]
  2. [250]
    Paragraph 4 of the admissions in Exhibit 4 established that the complainant, her family and the accused and his children went to Calliope in March 2005. The complainant recalled that they went away for the weekend and stayed near Gladstone at either Christmas or Easter.[167]  This is consistent with the admission.  I am satisfied beyond reasonable doubt that this charge has been proved, and I find the accused guilty of Count 11, Unlawful Carnal Knowledge.
  3. [251]
    In respect of Count 12, the complainant gave evidence that she was sleeping in the caravan at Cedar Grove on the property of the accused’s former parents-in-law.  She recalled sometime when she was “maybe 16” she was sleeping beside the accused on the floor of the caravan.  The complainant said she woke up and the accused put his penis in her mouth and ejaculated inside her mouth.  That was the first occasion that he had ejaculated in her mouth that she recalled, and she spat the semen out.  She said that that was not the first occasion that he had put his penis in her mouth.[168]  Significantly, the complainant was not asked whether she consented to that activity.   The complainant in her evidence admitted that she would perform oral sex on the accused sometimes before having intercourse with the accused, and that was during the period when her mother was away.  She agreed that she willingly performed oral sex on him.[169]  In the circumstances I cannot be satisfied beyond reasonable doubt that this charge has been proved, and I find the defendant not guilty of Count 12.
  4. [252]
    In respect of Count 13, this is the allegation of anal rape in the caravan at Cedar Grove.  It is important to consider closely her evidence on this.  The complainant said that the accused put his penis in her bottom, and “I sort of said, no.  Like, I wasn’t willing to do that and he’s like, it – he said, it’ll be okay, and then done a bit and it was very painful.  And then I sort of pulled away and he said, you know, try it again.  And then he tried it again and it was still painful and then when I said it was painful he stopped.  He didn’t persevere with that.”[170]
  5. [253]
    The complainant did not positively say that she had told the accused “no” and that she did not want any penetration of her anus.  I accept the complainant’s evidence that this incident occurred, and it has the hallmark of sexual experimentation.  On the evidence the accused stopped trying to penetrate her anus when she said it was painful.  In the circumstances I cannot be satisfied beyond reasonable doubt that the complainant did not begrudgingly give consent to that experimentation, and I find the accused not guilty of Count 13.
  6. [254]
    I then turned to Count 1, the charge of maintaining a sexual relationship with a child under 16.  It is significant that the period charged is between 12 August 2001 and 3 July 2005.  There are different directions in the Supreme and District Court Criminal Bench Book in respect of this offence, depending on when the alleged maintaining occurred.  This obviously reflects changes in the law to s 229B Criminal Code over the years.
  7. [255]
    As I discussed above, the complainant was uncertain as to her age when sexual offending commenced.  That is why Count 1, along with a number of the other charges, has a wide date range.  I am satisfied beyond reasonable doubt on the evidence that sexual offending against the complainant occurred from when she was at least 13 years of age, and continued until her 16th birthday on 3 July 2005.  I have directed myself in accordance with Bench Book Direction number 157.
  8. [256]
    I am satisfied beyond reasonable doubt that the accused was an adult during the relevant period.  I am satisfied that the accused maintained an unlawful relationship of a sexual nature, that included not only the specific unlawful sexual acts in Counts 2, 3, 4, 5, 6 and 11, but also included numerous uncharged acts of the accused touching the complainant on the outside of her vagina, on her skin, digital penetration of her vagina, and unlawful carnal knowledge.  I therefore find the defendant guilty of Count 1.

Footnotes

[1]R1-12, l 40.

[2]R1-13, l 40.

[3]R1-13, l 42.

[4]R1-14, l 5.

[5]R1-14, l 15.

[6]R1-15, l 1.

[7]R1-15, l 35.

[8]R1-17, l 8.

[9]R1-17, l 23.

[10]Ra1-17, l 36.

[11]R1-19, l 1.

[12]R1-19.

[13]R1-20, l 5.

[14]R1-22.

[15]R1-23, l 15.

[16]R1-23, l 45.

[17]R1-24, l 5.

[18]R1-24, l 35.

[19]R1-27, l 35.

[20]R1-28, l 4.

[21]R1-30, l 15.

[22]R1-30, l 45.

[23]R1-32, l13.

[24]R1-34, l40.

[25]R1-35, l15.

[26]R1-35, l30.

[27]R1-36 – R1-37.

[28]R1-38, l 45.

[29]R1-40.

[30]R1-40, l 35.

[31]R1-41.

[32]R1-42, l 1.

[33]R1-43, l 25.

[34]R1-43, l 40.

[35]R1-44, l 35.

[36]R1-44, l 5.

[37]R1-45, l 40.

[38]R1-46, l 35.

[39]R1-48, l 5.

[40]R1-48 – R1-49.

[41]R1-50, l 20.

[42]R1-52, 1, 20.

[43]R1-53, l 1.

[44]A transcript of that Exhibit was marked for identification “B”.

[45]A transcript of the second pre-text call was marked for identification “C”.

[46]R1-58, l 40.

[47]1-63, l 35.

[48]R1-67, l 5.

[49]R1-69, l 10.

[50]R1-69, l 20.

[51]R1-70, l 10.

[52]R1-73, l 25.

[53]R1-76, l 10.

[54]R1-79, l 5.

[55]R1-83.

[56]R1-86, l 1.

[57]R1-86, l 25.

[58]R1-87, l 10.

[59]R1-87, l 28.

[60]R1-87, l 42.

[61]R1-88, l 10.

[62]R1-90, l 15.

[63]R1-90, l 25.

[64]R1-91, l 45.

[65]R1-93, l 3.

[66]R1-95, l 3.

[67]R1-96, l 14.

[68]R1-06, l 34.

[69]R1-97, l 10.

[70]R1-103, l 15.

[71]R1-106, l 30.

[72]R2-22, l 30.

[73]R2-23, l 8.

[74]R2-25, l 23.

[75]R2-27, l 25.

[76]R2-28, l 33.

[77]R2-29, l 5.

[78]R2-30, l 25.

[79]R2-31, l 45.

[80]R2-33, l 20.

[81]R2-33, l 37.

[82]R2-34, l 5.

[83]R2-34, l 25.

[84]R2-38, l 45.

[85]R2-40, l 25.

[86]R2-41, l 5.

[87]R2-42, l 15.

[88]R2-46, l 25.

[89]R2-47, l 43.

[90]R2-47, l 45.

[91]R2-48, l 35.

[92]R2-51, l 5.

[93]R2-52, l 10.

[94]R2-55, l 5.

[95]R2-4, l 25.

[96]R2-6, l 23.

[97]R2-6, l 40.

[98]R2-9, l 45.

[99]R 2-11, l 27.

[100]R2-11, l 35.

[101]R2-13, l 27.

[102]R2-15, l 45.

[103]R2-16, l 5.

[104]R2-16, l 23.

[105]R 2-59, l 42.

[106]R2-60, l 8.

[107]R2-61, l 5.

[108]R2-62, l 5.

[109]R2-63, l 25.

[110]R2-65, l 23.

[111]R2-67, l 31.

[112]R2-68, l 35.

[113]R2-69, l 10.

[114]R2-71, l 40. 

[115]R2-72, l 1.

[116]R2-79, l 35.

[117]R2-80, l 23.

[118]R2-81, l 35.

[119]R3-3, l 15.

[120]R3-3, l 40.

[121]R3-5, l 20.

[122]R3-5, l 40.

[123]R3-6, l 13.

[124]R3-8, l 30.

[125]R3-9, l 30.

[126]R3-9, l 40.

[127]R3-12, l 16.

[128]R3-14, l 25.

[129]I listened to the disk carefully, and I can’t make out what the accused says at this point.

[130]Cannot decipher what the accused says here.

[131]R3-34 – R3-36.

[132]R3-36, l 15.

[133]R3-37, l 45.

[134]R3-38, l 20.

[135]R3-40, l 40.

[136]R3-41, l 20.

[137]R3-42, l 3.

[138]R3-46, l 20.

[139]R3-50, l 5.

[140]R3-53, l 10.

[141]R3-54, l 30.

[142]R3-55, l 35.

[143]R3-56-R3-57.

[144]R3-58, l 15.

[145]R3-60, l 3.

[146]R3-56, l 8.

[147]R3-57, l 40.

[148]R1-15, l 1.

[149]R1-22, l 30.

[150]R1-29, l 20.

[151]R2-80, l 24.

[152]R1-27, l 5.

[153]R1-28, l 5.

[154]R1-27, l 25.

[155]R1-27, l 35.

[156]R1-50, l 12.

[157]R1-48, l 30.

[158]R1-33, l 40. 

[159]R1-34, l 1.

[160]R1-35, l 30.

[161]R1-36, l 15.

[162]R1-36, l 35.

[163]R1-32, l 20.

[164]R1-32, l 35.

[165]R1-33, l 23.

[166]R1-32, l 5.

[167]Easter Sunday in 2005 was 27 March 2005.

[168]R1-40, l 26.

[169]R1-43, l 25.

[170]R1-43, l 35.

Close

Editorial Notes

  • Published Case Name:

    R v CR

  • Shortened Case Name:

    R v CR

  • MNC:

    [2020] QDC 269

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    23 Oct 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QDC 26923 Oct 2020Convicted of several sexual offences against child (and acquitted of others) after trial before Chowdhury DCJ sitting alone (further counts discontinued at close of prosecution case); proof of guilt depended entirely on credibility and reliability of complainant; accused gave evidence contradicting complainant’s evidence; accused’s evidence consistent with statements in pretext calls with complainant.
Appeal Determined (QCA)[2021] QCA 29123 Dec 2021Appeal against convictions dismissed; trial judge’s guilty verdicts not unreasonable; complaints concerning Longman, Robinson, Markuleski and R v UC [2008] QCA 194 directions not made out; trial judge’s reasons not inadequate and certain error therein an obvious slip; no miscarriage of justice resulted from amendment of dates on indictment during trial; complaints referring to further evidence dismissed: McMurdo JA, Mullins JA, Daubney J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Longman v The Queen (1989) 168 CLR 79
2 citations
Jump To
Cite 1 - (1989) 168 CLR 79
Cite 2 - (1989) 168 CLR 79
R v Markuleski (2001) 52 NSWLR 82
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 82
Cite 2 - (2001) 52 NSWLR 82
R v Sunderland(2020) 5 QR 261; [2020] QCA 156
2 citations
Jump To
Cite 1 - [2020] QCA 156
Cite 2 - [2020] QCA 156
R v UC [2008] QCA 194
2 citations
Jump To
Cite 1 - [2008] QCA 194
Cite 2 - [2008] QCA 194
Robinson v The Queen (1999) 197 CLR 162
2 citations
Jump To
Cite 1 - (1999) 197 CLR 162
Cite 2 - (1999) 197 CLR 162

Cases Citing

Case NameFull CitationFrequency
R v CR [2021] QCA 2911 citation
1

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