R v RP[2018] QDCPR 63

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defence applies pursuant to s 590AA of the Criminal Code for the exclusion of evidence of internet searches conducted by the defendant.

Charge

2. [2]
   The defendant is charged with six counts of rape and four counts of indecent treatment of a child under 16, under care, upon SH, his biological daughter.

Summary of the facts

3. [3]
   The Crown tendered a schedule of facts which was marked as Exhibit 3. The defendant was 48 years of age at the time of the alleged offending. The complainant is his biological daughter, SH. She was aged between 13 and 14 years when he allegedly offended against her. During the offending period she lived with the defendant and her stepmother. She had lived with the defendant full time since she was about 10.

4. [4]
   On 2 August 2017 she disclosed to a school nurse the defendant had been having sex with her for the past 12 months. Police were notified and the complainant provided two section 93A statements to the police.

5. [5]
   With respect to count 1 (rape), SH alleged that in the second half of 2016 she had been cleaning out the garage of their house at Ilbilbie with the defendant (a self-employed painter).  When she had finished her tasks he told her she had one more chore.  He told her to get into the backseat of the car and take her shorts off.  He repeated this and shut the garage door.  She got into the backseat of the car but didn’t take her shorts off.  He told her to do what “you’re bloody well told” and he removed her shorts.  He lay on top of her and penetrated her vagina with his penis which caused pain.

6. [6]
   As to count 2 (rape), in the second half of 2016 she was in her bedroom watching a movie. Her stepmother was home but was asleep. The defendant came in and said he wanted to watch the movie too. He sat next to her and put his hand on her vagina. She told him to stop and pulled his hand away. He said “where’s your sense of adventure?” He then inserted his fingers into her vagina and she pulled his hand away. He attempted to touch her breasts and she said “no.” He said he just wanted to have some fun. She paused the movie, went to the toilet and hid there until the defendant left her room.

7. [7]
   With respect to counts 3 and 4 (indecent treatment and rape), sometime in the 12 months preceding the complaint, the complainant and the defendant were at home alone. The complainant’s stepmother was staying at Nebo that night. The complainant made herself dinner, had a shower and went to bed. Before she went to bed, the defendant asked if she wanted her phone back and told her to meet him in his bedroom in ten minutes. She said “no” and continued to go to her bedroom. He came in and demanded she go into his bedroom because he wanted to have some “fun”. She said “no” but he again repeated his demand aggressively. He told her he was watching her favourite movie so she agreed to watch it. She lay on the defendant’s bed and watched the movie. He started cuddling her and then told her to take her clothes off. She did not. He took off her shorts. He licked her vagina (count 3). She told him “no” but he said he didn’t care and became more aggressive. He then touched her breasts. She tried to roll away but he rolled her back. He took his shorts off and penetrated her vagina with his penis, the conduct the subject of count 4 (rape). He called her a “little bitch”. The complainant repeated that she did not want to do this but he ignored her protests and kissed her neck. He tried to bite her ear but she moved away. He again later repeated she was a “little bitch” and bit the complainant on the breast. The defendant later masturbated himself to ejaculation with the aid of pornography. She got dressed and left the room.

8. [8]
   As to count 5 (indecent treatment) on an unknown occasion in the 12 months before the complaint, SH and the defendant were home alone. SH was doing her homework. The defendant approached her and gave her a pair of swimmers and told her to get changed. She said no because it was cold. He told her to do what she was told. She complied, got changed and got into the spa. He got in and lifted her to the side of the spa and moved the swimmers aside and licked her vagina for about five minutes (count 5). After about ten minutes he stopped and she went back inside.

9. [9]
   As to count 6 (rape), sometime in September or October 2016 the defendant took the complainant with him to paint a house in East Mackay. At the end of the day they were in a room downstairs. The defendant told SH to sit on a blue sofa that was there and started to take her clothes off. She said “no”. He asked her whether she wanted her phone back, wanted credit, or wanted her friends to come over. She said she wanted those things but didn’t want anything to do with the defendant. He removed her shorts and underwear and penetrated her vagina with his penis. She tried to close her legs and move away but he said “don’t you dare” and called her a “little bitch”. After about five to ten minutes he said “oh I give up” removed his penis from her vagina and masturbated himself whilst watching something on his phone. She believed it was pornography. He ejaculated onto her feet.

10. [10]
    As to counts 7 and 8 (indecent treatment and rape), on an unknown night during term 2 of school in 2017 they were at home alone.  She had gone to bed.  He came to her bedroom at 10.00pm and told her to get undressed by the time he got back or she’d be “in deep trouble”. He got some baby oil from the bathroom.  When he came back she was in bed and repeated his request.  She told him to go away and that she was tired.  He yelled at her to get undressed and removed her shorts.  He started touching her.  She told him to go away.  He said he was horny and wanted some fun.  He rolled her onto her back, licked her vagina for about five minutes (count 7) and then penetrated her vagina with his penis (count 8).  Whilst he was raping her, he lifted her shirt up and bit her on the breasts. He then began sucking on SH’s breasts.  She told him to stop as she was in pain.  She pulled her shirt back down and put a pillow over her face so she could not see what the defendant was doing to her.  After a time he removed his penis and masturbated himself until he ejaculated over the bed and her legs.  She got up and had a shower.

11. [11]
    As to count 9 (indecent treatment), a couple of weeks before the complainant made a complaint to police, the defendant took her with him to Nebo while he did work on a house. They had finished work for the day and he was about to pick up the complainant’s stepmother. They were in the car and he was in the driver’s seat. He told the complainant to give him either a “hand job” or a “blow job”. She said she was not going to do either. He grabbed her hand, placed it on his penis and moved it up and down for about five to ten minutes during which he said “fuck you baby” and “squeeze it harder”. After about five to ten minutes he let go of her hand and masturbated himself until he ejaculated onto the steering wheel.

12. [12]
    As to count 10 (rape), about a week before the complaint was made the defendant and the complainant were again at Nebo as the defendant was working as a painter there. At the end of the day they were again in the defendant’s car. The defendant told SH that she had been “bad at home” and owed him 20 minutes of sexual favours from a list he recited to her. Her options were a) a hand job, b) a blow job, c) sexual intercourse and d) double of everything. She said she wasn’t going to do it anymore. He told her she had five minutes to choose but she said no. He then drove them to a river and told her to get into the backseat. She said no. He yelled at her until she complied. He started undressing her. She repeated that she did not want to. He asked her if she wanted her stuff back. She told him to stop blackmailing her. She crossed her legs in an effort to resist but the defendant uncrossed them and then removed her shorts and penetrated her vagina with his penis. He raped her for about five to ten minutes. The sex was unprotected. When he finished he told her to pull her shorts back on and they picked up the stepmother.

13. [13]
    On 3 August 2017 police executed two crime scene warrants at the defendant’s address and his car. After the searches he was arrested and charged. He did not participate in an interview with police.

14. [14]
    As a result of the searches police located a tube of lubrication in the complainant’s bedside table, being the lubrication she had referred to in her complaint. Police also examined the complainant’s bed and the defendant’s car. There were positive presumptive test results for semen in both areas. Samples of the complainant’s mattress protector and fabric from the backseat of the car were sent for further DNA analysis. These results revealed the defendant’s spermatozoa detected on these items.

15. [15]
    A forensic examination by a QPS technician was conducted of the defendant’s Acer laptop and Apple iPhone. The earliest relevant entry appears on 24 January 2016 on the laptop and the latest on the iPhone on 1 August 2017^[1]. 

16. [16]
    Relevant Google search terms for the laptop included:

1. (a)
   “Baby daughter incest” searched 21 February 2016;

2. (b)
   “Daughter cream pie” searched 14 February 2016;

3. (c)
   “Daughter porn” searched 14 February 2017;

4. (d)
   “Daughter teen porn” searched 10 May 2017;

5. (e)
   “Daughter XXX” searched 23 March 2017;

6. (f)
   “Teen daughter cream pie” searched 18 April 2017;

7. (g)
   “Teen daughter porn” searched 6 April 2017 and 4 May 2017; and

8. (h)
   “Teen incest” searched 27 June 2017.

17. [17]
    Relevant pornography URLs included the following:

1. (a)
   “First time daddy/daughter role play” accessed 27 June 2017;

2. (b)
   “Fucking my daughter video” accessed 3 May 2017;

3. (c)
   “Daddy and daughter private taboo tape” accessed 18 April 2017;

4. (d)
   “Daddy daughter incest videos any and all incest pertaining to that special bond only a daughter and motherless.com” accessed 21 February 2016;

5. (e)
   “Armature father and daughter (cream pie)” accessed 24 January 2016.

18. [18]
    Similarly themed results were located in the internet explorer browser history and the Google Chrome browser history.

19. [19]
    The Safari internet history and pornography URLs on the Apply iPhone revealed the phone accessed a series of sites pertaining to the topic of fathers having sex with their daughters on 1 August 2017.

Defence submissions

20. [20]
    The defence submits^[2] that prima facie propensity evidence is not admissible and it is for the Crown to demonstrate it is admissible.  It is further submitted that the prejudicial effect of the internet search history outweighs the probative value of such evidence.

21. [21]
    It is submitted that the internet history is not proof the defendant committed any act regarding any count on the indictment. The sole purpose of the evidence is to conclude that the defendant engaged in discreditable conduct. The internet history has nothing to do with the complainant and does not reach the high bar of admissibility. It is submitted that because of the lack of nexus to the offences there is a significant risk of prejudice and it should be excluded.

Crown submissions

22. [22]
    The Crown on the other hand submits^[3] that the internet search history shows that the defendant had a sexual interest in the complainant.  It overlapped in time with the offending against the daughter and shows there was a sexual attraction to the complainant, his teenage daughter.  It is submitted that although it is prejudicial it is also probative and the evidence should not be excluded.

Discussion

23. [23]
    It is common ground that evidence of discreditable conduct may be admissible if it tends to show that an accused person has a sexual interest in the particular complainant.

24. [24]
    The High Court in the joint judgment of R v Bauer^[4] stated at [48]-[49]:

“Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.

As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts.”

25. [25]
    Bauer also accepted that which was stated by Kiefel J in HML v R^[5] where her Honour said:

“Clearly, relationship evidence is relevant as showing the sexual interest of the accused in, or the 'guilty passion' for, the complainant. Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts. There can be little doubt about its probative force. It may reveal a tendency in the accused, sometimes described as a motive. Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged.”

26. [26]
    In BBH v R^[6] Kiefel and Crennan JJ said at 541:

“When determining whether the evidence of propensity is to be admitted before the jury [the judge should] apply the standard which the jury must eventually apply.  The judge must ask whether there is a rational view of the propensity evidence, seen in the setting of the prosecution case, which is consistent with the accused's innocence.  If the judge so concludes, the evidence ought not to be admitted.”

27. [27]
    In HML v R^[7] Hayne J at page 384 said:

“Pfennig establishes the rule that governs the admission of evidence that will reveal an accused person's commission of discreditable acts other than those that are the subject of the charges being tried.  The rule takes as its premise that evidence of other discreditable acts of the accused is ordinarily inadmissible.  The foundation for the rule excluding evidence of other discreditable acts of an accused is that, despite judicial instruction to the contrary, there is a risk that the evidence will be used by the jury in ways that give undue weight to the other acts that are proved.  That is why the exception to that general rule of exclusion is drawn as narrowly as it is by Pfennig.  It is why Pfennig requires that evidence of other acts may be admitted only if it supports the inference that the accused is guilty of the offence charged, and the evidence of those other acts is open to no other, innocent, explanation.  But it also follows from the considerations that have just been mentioned that the exclusionary rule is not to be circumvented by admitting the evidence but directing the jury to confine its uses.”

28. [28]
    I note in R v MAY^[8] evidence of child exploitation material was not admitted because it did not have anything to do with the acts alleged. I think that case is distinguishable.

29. [29]
    In this case it is highly relevant that the defendant only had one daughter and conducted searches concerning fathers having sexual relations with their daughters.

30. [30]
    In light of this and considering the nature of the Crown case it is my view that the evidence can be used by the jury as showing that the defendant had an unnatural sexual interest in his daughter.

31. [31]
    It is relevant that the defendant specifically searched for pornography showing the same or similar acts he is alleged to have committed on his daughter. In light of the Crown case it has gone beyond mere fantasy to the actual acting out of these fantasies on his biological daughter. I do not consider there is a reasonable hypothesis available consistent with innocence.

32. [32]
    It is my opinion that the propensity evidence here as proved by the internet search history is admissible. There is no reasonable view of the evidence other than guilt.

33. [33]
    It is also relevant that the complainant refers the defendant looking at pornography during relevant sexual acts for counts 3, 4 and count 6.

34. [34]
    It is beyond natural human experience that a person would have a particular interest in having sexual relations with their own daughter. It seems to me that the fact the defendant conducted specific searches concerning sexual relationships with his daughter shows that he did have a sexual interest in his daughter. These are not mere searches of pornography or even child pornography generally. They were specific searches relating to sexual relations with a daughter. That is the nature of the charges brought against him. In my view the evidence reaches the high bar referred to in the authorities. I consider it admissible.

35. [35]
    The next question is whether it should be excluded in the exercise of the discretion.

36. [36]
    There is no doubt the evidence is extremely prejudicial, but on the other hand I consider it has significant probative value in light of the facts I have referred to.

37. [37]
    If the jury accepts the evidence, it would be entitled to conclude the defendant did have an unnatural sexual interest in his own daughter and it is more likely that he committed the offences charged. Of course the jury will need to be warned of the dangers of relying solely on propensity evidence and that in order to convict it is necessary to be satisfied beyond reasonable doubt of the elements of the particular offence under consideration. Such a direction provides a safe guard against the prejudicial effects of the search evidence.

38. [38]
    The probative value is not slight and the prejudicial effect does not far outweigh the probative value.^[9] 

39. [39]
    In the exercise of my discretion I do not exclude the evidence.