R v BCT

[2015] QDC 277

DISTRICT COURT OF QUEENSLAND

CITATION:

R v BCT [2015] QDC 277

PARTIES:

THE QUEEN

v

BCT

(defendant)

FILE NO/S:

757/13

DIVISION:

Criminal

PROCEEDING:

Plea

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15 & 16 October 2015

JUDGE:

Sheridan DCJ

FINDING:

The defendant had knowledge of the sexual abuse as well as physical abuse of the complainant.   

CATCHWORDS:

SENTENCE – CONTESTED – where defendant pleaded guilty to one count of cruelty to a child under 16- where dispute as to defendants knowledge of physical and sexual abuse of the complainant.

COUNSEL:

S Ryan QC

S Farnden

SOLICITORS:

Legal Aid

Office of the Director of Public Prosecutions

1. The defendant is to be sentenced on her own plea of guilty to an offence of cruelty committed between 31 July 2009 and 9 November 2009.  At the time, her natural daughter, the complainant, was either three years old or almost three when she was both physically and sexually abused by the defendant’s then de-facto partner, CBL.  CBL was convicted and sentenced on 25 July 2013 after a three week trial of a number of offences, including one count of torture, three counts of rape and two counts of grievous bodily harm.  CBL was sentenced to 16 years imprisonment.  The defendant was also convicted of the same charges at that time and sentenced to 12 years imprisonment.

1. The convictions and sentences were appealed. The present defendant’s conviction was set aside and a new trial ordered. The defendant’s indictment was amended to the charge of cruelty and it is that charge which is now before this court.

1. The complainant was in the defendant’s care.  By the time medical treatment was sought for the complainant, she was gravely ill.  On the evening of Saturday 7 November 2009 she had become unconscious and ultimately a triple-0 call was made by CBL.  The complainant was taken to the Mater Children’s Hospital where she presented with very significant injuries, including multiple bruises, abrasions and lacerations on her head and face, vertical tears on her upper and lower lips, large ulcers inside her mouth, hair loss with scabs on the scalp, bruising and swelling to her chest, abdomen, legs and arms, with the bruising to the abdomen being described as massive, and bruising and lacerations with severe swelling to her genital and anal areas.  In terms of internal injuries, she had subdural bleeding around the brain, bleeding within the backs of both eyes, extensive bleeding within the muscular layer of the abdomen, tears in her buttocks muscle and the internal wall of the anus, enlarged bladder and kidney and damage to her liver and pancreas.  She was also severely anaemic.

1. The defendant has pleaded guilty to the charge of cruelty for having failed to provide the complainant with medical treatment and/or care for the injuries occasioned by the physical assaults.  The defendant has denied any failure in terms of the injuries occasioned by the sexual assaults on the basis that she did not know that CBL was sexually abusing her daughter.

1. Given that denial, for sentencing purposes, regard cannot be had to the injuries occasioned by the sexual assault unless I find it established that, despite the denial, the defendant knew of the sexual abuse. 

1. It is accepted by the prosecution and defence that knowledge of the sexual abuse bears on the relative seriousness of the offences and may be a finding of relevance to the Department of Child Safety. Defence counsel submitted, within the terms of s 132C of the Evidence Act 1977 (Qld) and having regard to the seriousness of the allegations, the degree to which the court must be satisfied of the contested fact is approaching that of beyond reasonable doubt. The Crown accepts that they bear the onus of proof and, in fact, accepts the requisite standard of proof is beyond reasonable doubt.[1]

   [1]Filoppou v R [2015] HCA 29 approving the principle laid down in R v Olbrich (1999) 166 ALR 330.

1. In terms of the injuries to the complainant, the medical evidence was largely given by two medical specialists; Dr True being the hospital’s child protection doctor and Professor Kimble, the director of Burns and Trauma, who were the specialists involved in the initial examination of the complainant when she first presented at the emergency department of the Mater Children’s Hospital.  After a preliminary examination, having regard to the extent of her injuries, it was decided that the complainant should be examined under anaesthetic in an operating theatre. In terms of the injuries to the complainant’s genital and anal area, the evidence given by those doctors was that:

·her genital area was “grossly swollen”;[2]

·the complainant had evidence of lacerations on the outer area, in particular a large laceration from the anus to the vagina which looked very acute, so  within the last 24 to 48 hours;[3]

·the complainant had ulcerated lacerations on the inside of her anus which were several days, if not weeks, old, with the opinion of both doctors being  ulcerations take time to develop;

·the injuries appeared to be of different ages, indicating at least two episodes of assault of her genital area, or in the words of Professor Kimble “repeated trauma”[4] including forceful penetration of the vulva;

·the bladder and kidneys were enlarged because the passing of urine would have been intensely painful resulting in less urine being passed;[5]

·her injuries would have made the passing of bowel motions “extremely painful”.[6] It was said at trial that it is found that children with these types of injuries simply do not go to the toilet, and it would have also been extremely painful to move around and to walk and to go to the toilet;[7]

[2]Trial T2 – 46 L28

[3]Trial T2 – 29 LL33-35

[4]Trial T6 – 21 L40

[5]Trial T2-45 LL46-51; Trial T6 – 27 LL55-57

[6]Trial T6 – 27 L58

[7]Trial T2- 46 LL28-30; Trial T6 – 28 LL1-5

1. Importantly, under cross-examination it was suggested to Professor Kimble that it would have been possible not to see the deep chronic ulcer in the anal area. He responded: “there was a lot of chronic swelling around it and it would have been quite obvious for anyone who was caring for a girl of this age.”[8]  After some ensuing debate, the evidence given by Professor Kimble was that the ulcer would have been visible to the naked eye.[9]  Professor Kimble stated: “these lesions were so large and she was so swollen that certainly if it had been there for a long time it would have- it should’ve been picked up by someone.  These weren’t subtle – these weren’t subtle lesions.”[10]

   [8]Trial T6 – 46 LL3-5

   [9]Trial T6 – 47 L47

   [10]Trial T6 – 23 LL13-16

1. Professor Kimble said “she was really a very sick little girl.”[11] If medical help had not been sought at that time, it could well have been fatal.[12] Without medical treatment, the likelihood of her dying would have been high.[13]

   [11]Trial T6 – 27 LL26-27

   [12]Trial T6 – 27 LL39-40

   [13]Trial T6 – 27 LL44-45

1. It does not seem the evidence of Professor Duflou, a specialist forensic pathologist called by CBL at the trial, challenged the evidence of Dr True or Professor Kimble in any significant respect. 

1. Dr True said she was first told by CBL in the presence of the defendant that the complainant had fallen in the bathroom that night and, “there was no genital or anal injuries present”.[14]  Dr True said that she was then told by CBL, “[the complainant] toilets herself, so they don’t usually look in that area”.[15]  Dr True said that the final explanation given was the doctors caused them.[16]  In addition, the doctors were given various explanations as to the other causes of her injuries by CBL. There was no suggestion that any of these clearly false statements by CBL were contradicted by the defendant. 

   [14]Trial T2 – 31 LL44-45

   [15]Trial T2 – 31 LL45-46

   [16]Trial T2 – 31 L56 

1. In all, the defendant gave four interviews to police, a field interview at the hospital on the evening of 8 November and a formal written statement dated 25 May 2010.  The defendant did not give evidence at the initial trial but has given evidence in these proceedings.  The third and fourth interviews with police were given after the defendant had left CBL and moved to a women’s refuge.  In those interviews the defendant gave answers different in a number of respects to the answers which had previously been given in the earlier interviews.

1. In those subsequent interviews, the defendant spoke of the nature of her relationship with CBL and how she had always trusted what she had been told by CBL.  I accept that CBL was some 10 years older than the defendant and was a dominant and controlling partner.

1. Given the nature of the relationship, in assessing the defendant’s evidence, it is appropriate that I not place too much reliance on the first two interviews which occurred while the defendant was still in the relationship with CBL.  However, by the time of the third and fourth interviews, the defendant was in a women’s refuge and free of CBL; albeit the defendant in the course of those interviews referred to remaining scared of CBL and being very aware of the extent of CBL’s contacts.  

1. In those interviews, the defendant told police of some of the physical abuse which had been inflicted on the complainant by CBL.  Whilst the defendant did not confess fully as to how all the injuries which had been inflicted on the complainant were caused, the defendant gave details of a number of abusive events.  In the third interview, the defendant seemed to accept that there was no way the paediatrician could have caused the rip from the complainant’s vagina to her anus, though the defendant completely denied having any knowledge of that injury prior to being told in hospital.

1. A focal point of the interviews was the two weeks and in particular the two days immediately prior to the complainant’s hospitalisation. In the third interview, the defendant originally said that CBL’s attitude towards the complainant changed just in the last two days before her hospitalisation.  However, later in that interview, the defendant said something different. She alleged there were other incidents between CBL and the complainant which she said had happened a few weeks beforehand.[17]  The defendant then referred to the fact that CBL had hit her with things but had never hit the complainant with things.[18] This contradicted a statement earlier in that interview where she said CBL had only become physically violent towards her after the complainant had been taken.[19]

   [17]Record of Interview 12 April 2010 Tape One LL1276-1277

   [18]Record of Interview 12 April 2010 Tape One  L1297

   [19]Record of Interview 12 April 2010 Tape One L218; Record of Interview 12 April 2010 Tape Two L822

1. The defendant was asked a number of questions about the toileting and showering of the complainant in that two week period.  In the course of the defendant’s evidence, her description of the extent of the roles played by the defendant and CBL in that period changed.  In fact, it changed very dramatically from the first two interviews to the evidence the defendant gave in these proceedings.  The changes in the defendant’s evidence was very clearly directed to limiting the defendant’s opportunities to have been aware of her daughter’s injuries.  In the third interview, the defendant had said: “CBL was mainly toileting her”.[20]  However, the defendant admitted in the course of the same interview to having toileted the complainant two or three times over the weekend but added there was no swelling.[21]  The defendant also admitted to having seen her daughter asleep on the toilet on the Friday night.[22]  The longwinded explanations given by the defendant, in relation to that incident and in relation to the denial of her daughter having ever complained of a “stingy pee”,[23] I considered to be contrived and unbelievable.

   [20]Record of Interview 12 April 2010 Tape One L1728

   [21]Record of Interview 12 April 2010 Tape One LL1730 – 1736

   [22]Record of Interview 12 April 2010 Tape Two L624

   [23]Record of Interview 12 April 2010 Tape Two L330

1. In the third and fourth interviews, the defendant admitted to showering her daughter after an alleged motorbike accident on the Friday morning.  The defendant said that the only thing she had noticed in doing that was a little cut above her daughter’s groin and a little scratch on her bottom.[24]  The defendant said that she did not notice any swelling in her daughter’s vaginal area.  In fact, the defendant said, “there was no swelling on her vagina when I looked at it.”[25]  That evidence was confirmed in the defendant’s written statement where she had also said she had “made an examination of her”.[26] Having regard to the medical evidence, these statements were patently false.

   [24]Record of Interview 24 May 2010 at p109

   [25]Record of Interview 24 May 2010 at p126

   [26]Paragraph 65

1. The defendant said in the third and fourth interviews that after showering the complainant that morning, CBL then took over her care for the rest of that day and the next day.

1. In these proceedings, in giving evidence the defendant denied having showered the complainant on the Friday. In cross-examination, the defendant said she had tried to pull her clothes up and get her undressed and put her in the shower and that CBL had said, “I’ll do it”.[27]  In that process, the defendant admitted to having seen a scratch as she started to pull her clothes off but said that CBL had intervened. 

   [27]T1 – 48 LL16-17  

1. In cross-examination, when it was put to the defendant that she had never said that before, the defendant said she had forgotten to mention that because “I was still trying to process and make sense of everything that was happening, and I couldn’t always remember specifics.”[28]

   [28]T1 – 57 LL31 - 32

1. The defendant said that she had wanted to take the complainant to the doctor though she denied having any opportunity to fully examine her.[29]

   [29]T1 – 57 LL15-16

1. When the defendant was asked in cross examination about the week prior to the complainant’s hospitalisation and, in particular, was asked about the Monday of that week, the defendant again said that she had attempted to remove the complainant’s clothes and that CBL had stopped her and CBL had said, “I’ll do it”.[30]  In giving her evidence, the defendant said she could definitely recall that she did not shower her daughter that night.[31]  In her earlier interview on 9 November 2010 however, the defendant gave a long convoluted story about the complainant slipping in the shower that night.  When the defendant was asked about the evidence she was giving about showering and her previous evidence, the defendant said, “well – I don’t – did they ask those questions?  I don’t know.”[32]  Reference to the transcripts of the records of interview and the defendant’s written statement, make it very clear that a focus point of the questioning was the routine in the household and particularly the routine in relation to both toileting and showering.

   [30]T1 – 48 LL16-17

   [31]T1 – 49 LL20-25

   [32]T1-52 LL28-29

1. The evidence given in these proceedings by the defendant in relation to the showering of the complainant on both the Friday morning and in the week preceding is in complete contrast to her earlier evidence.  I regard the evidence which the defendant gave in these proceedings as an attempt to distance herself from having had any opportunity to obtain knowledge as to her daughter’s condition.  The position is that, based on the medical evidence, the injuries to her daughter’s genital and anal areas would have been very obvious by the Friday morning and even before then.

1. Further, relevantly, the defendant said that on the Friday, the complainant was still eating.  The defendant denied that she could see any injuries to the complainant’s mouth.  The defendant said the complainant was not in any obvious pain, nor did she have any problems walking.  In fact, the defendant said, “She was fine.”[33]  That evidence is completely at odds with the medical evidence.

   [33]T1 – 59 L21

1. As a result, I am left in the position where I cannot give any credence to the evidence the defendant has given. It is inconsistent with the medical evidence and it is internally inconsistent. I cannot accept that the defendant had no knowledge of the injuries which had been inflicted to her daughter’s genital and anal areas.  I cannot accept that the defendant had no knowledge that her daughter was being sexually abused by CBL.  

1. I am satisfied beyond reasonable doubt that the defendant had knowledge of the sexual abuse as well as physical abuse of the complainant.