R v BDF

Case [2022] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDF [2022] QCA 61

PARTIES:

R
v
BDF
(appellant)

FILE NO/S:

CA No 79 of 2020
DC No 71 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Southport – [2020] QDC 37 (Kent QC DCJ)

DELIVERED ON:

29 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2021; Written Submissions received 4 June 2021 and 9 July 2021

JUDGES:

McMurdo and Mullins JJA and Mazza AJA

ORDERS:

1.   Application for leave to amend the notice of appeal refused.

2.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the trial judge found the appellant guilty of the maintaining offence, while having found the appellant was guilty, as principal, of only the indecent treatment offence and the appellant was guilty as a party to the three rapes – whether an unlawful sexual relationship can be maintained by an adult, if the relationship involves unlawful sexual acts where the defendant was not the persons who committed the act of rape – whether the deeming effect of s 7 of the Criminal Code (Qld) results in an unlawful sexual act of another being that of a defendant for the purposes of s 229B of the Code – whether an unlawful sexual relationship can be proved by continuity of sexual acts, including those acts for which an offender is liable as an enabler, aider or procurer, even if the actual sexual acts are committed by a different person on each occasion

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the primary issue at trial was whether the complainant’s evidence was credible and reliable and proved each offence beyond a reasonable doubt – where the appellant submits the complainant’s evidence was inconsistent and influenced by the appellant’s husband – where the issue on appeal is whether the trial judge was justified in acting on the complainant’s evidence – whether the verdicts of guilty were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of six offences against her daughter including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty and maintaining a sexual relationship with a child – where the trial judge had taken into account the fact the appellant was previously acquitted of a number of the…

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AGLC
R v BDF [2022] QCA 61
Case
[2022] QCA 61
Decision Date

CaseChat Overview and Summary

The case of R v BDF involved an appeal against the conviction of the appellant for six offences against her daughter, including rape, indecent treatment of a child under 12, who is a lineal descendant, under care, deprivation of liberty, and maintaining a sexual relationship with a child. The appellant was convicted of maintaining the unlawful sexual relationship, while being found guilty, as principal, of only the indecent treatment offence, and guilty as a party to the three rapes. The appeal focused on whether the trial judge erred in acting on the complainant's evidence and whether the verdicts of guilty were unreasonable, given the inconsistencies in the evidence and the impact of prior acquittals on the appellant.

The court was required to determine if an unlawful sexual relationship could be maintained by an adult if the relationship involved unlawful sexual acts where the defendant was not the person who committed the act of rape. Additionally, the court needed to decide whether the deeming effect of s 7 of the Criminal Code (Qld) resulted in an unlawful sexual act of another being that of a defendant for the purposes of s 229B of the Code. The appeal also questioned whether an unlawful sexual relationship could be proved by continuity of sexual acts, including those acts for which an offender is liable as an enabler, aider, or procurer, even if the actual sexual acts were committed by a different person on each occasion.

The court held that the trial judge was justified in acting on the complainant's evidence despite the inconsistencies. The court found that the trial judge had considered all relevant factors, including the inconsistencies in the evidence and the approach relevant to fact-finding in cases of sexual offending against a child. The court further held that the verdicts of guilty were not unreasonable or inconsistent with the prior acquittals, as the trial judge had given the appellant the full benefit of the previous acquittals. The court dismissed the appeal, finding that the trial judge's application of the principles from Pell v The Queen was not in error and that the trial judge had adequately considered the credibility of the complainant's evidence.

The final orders of the court were to refuse the application for leave to amend the notice of appeal and to dismiss the appeal.

Orders

Orders of the court

1. Application for leave to amend the notice of appeal refused.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The reference to “prior acquittals” is therefore a reference to the verdicts of not guilty for counts 7-10 in the first trial.Summary of the relevant evidence The prosecution and the appellant admitted at the trial enrolment dates for the complainant at various schools. On 28 January 2014 the complainant commenced at a primary school which she continued to attend for most of the time her father was in prison until she changed to another primary school on 29 April 2015. Preliminary complaint evidence was given by psychologist Ms Fleming who provided counselling to the complainant in five sessions between May and December 2016. On the second occasion on 25 July 2016, the complainant struggled to articulate verbally experiences whilst residing with her mother and instead wrote down on a piece of paper:“When I was in bed Mum used to come in with her friends and try to touch me inaproperly (sic).” That note was tendered in the trial as exhibit 6. In cross-examination, Ms Fleming recalled that at some point the complainant identified that she would like safe contact with her mother. The complainant’s first s 93A interview took place on 5 August 2016. She was interviewed by a male police officer and it was apparent that she was uncomfortable talking to him as she said that she wanted “to speak to a girl”. What she did say in that interview was as follows. When her father was away, the appellant “liked to have people over all the time”. Her sisters were not usually there. The appellant used to come in with people and wake the complainant up “and do naughty things”. The last time that it happened was a few days before her father got back. The appellant came into her room with somebody and it was always someone different. The appellant took off the complainant’s clothes and she was “naughty”. The appellant dressed her up in weird clothes. Her mother told her if anyone asked if anything happened, to say “no”. A second s 93A interview took place on 10 August 2016 with a female police officer. The complainant’s evidence from this interview included the following. At night her mother used to come into her room with one person and she used to dress the complainant up “in weird clothes” and she used to hold her down and then the other person would rape her. One night her mother was in the garage with two men, one of whom was tall and had brown hair and a scar on his right arm and the other of whom was shorter, skinny and had brown hair and she thought was called Colin and they looked like they were drunk. It was after her father went to prison. The complainant asked what they were doing, and her mother said “don’t worry”. The complainant said that she should not be doing that “because it looked rude” and her mother told her to go to her room. Her mother was against the table with her elbows on the bench and the first man was having sex with her from behind and the second man was on the other side of the table kissing her. The complainant was in the garage for “only like five minutes”, before she went back to her room. It was maybe 11.30 pm.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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