R v BDM

Case [2021] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDM [2021] QCA 108

PARTIES:

R
v
BDM
(appellant)

FILE NO/S:

CA No 321 of 2019
DC No 465 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 22 November 2019 (Long SC DCJ)

DELIVERED ON:

18 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2021

JUDGES:

McMurdo JA and Boddice J and Rafter AJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant submits that his convictions are unreasonable and cannot be supported, having regard to the evidence, due to the existence of the following features: (a) the risk that the complainant’s version of events was altered by psychotherapy treatments involving hypnosis; (b) the complainant’s earlier retraction of the allegations; (c) the complainant implicitly denying she had been assaulted by the appellant (her father) when asked by her sister; (d) the complainant attempting to have her sister give evidence of events involving the complainant and the appellant; (e) the delay; (f) the appellant’s sworn denial of the offending; (g) the inherent improbability of the offending – where the respondent submits it was open to the jury to accept the complainant’s evidence as true and accurate beyond reasonable doubt, notwithstanding the sworn evidence of the appellant and the evidence of Dr Roberts – where the respondent submits that the clinical conclusions reached by Dr Roberts lacked sufficient foundation and it was open to the jury to reject those criticisms – whether it was open to the jury to find the complainant’s evidence reliable and credible – whether on an independent assessment of the record as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, followed
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, followed
R v Oliver[2020] QCA 76, doubted

COUNSEL:

A O’Brien for the appellant (pro bono)
D Kovac for the respondent

SOLICITORS:

Butler McDermott Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. THE COURT:  On 22 November 2019, a jury found the appellant guilty of two counts of maintaining a sexual relationship with a child and nine counts of indecent treatment of a child under 16 who was a lineal descendant.

  2. On 11 December 2019, the appellant was sentenced to four and a half years’ imprisonment on each count of maintaining a sexual relationship and lesser concurrent terms of imprisonment for the remaining counts.

  3. The appellant appeals his convictions on the ground that they are unreasonable and cannot be supported, having regard to the evidence.

    Background

  4. The appellant was born on 26 June 1958.  He was aged between 31 and 36 at the time of the offending and 61…

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AGLC
R v BDM [2021] QCA 108
Case
[2021] QCA 108
Decision Date

CaseChat Overview and Summary

In the case of R v BDM, the appellant appealed his convictions, arguing that they were unreasonable and unsupported by the evidence. The appellant was convicted of various offences involving the sexual abuse of his daughter over a period spanning from 1990 to 1994. The primary legal issue before the court was whether it was open to the jury to find the complainant's evidence reliable and credible, and thus to convict the appellant beyond reasonable doubt.

The court examined the evidence in detail, considering various factors such as the complainant's prior complaints, her consistency in recounting the events, and the appellant's denial of the allegations. The court noted that the complainant had made preliminary complaints between 1994 and 2013, well before engaging in any therapy, and found no evidence that her account had varied. The court further found that the jury was entitled to reject the notion that the complainant's participation in therapy rendered her inherently unreliable.

The court concluded that the jury, acting reasonably, was entitled to accept the complainant's evidence as credible and reliable. The appellant's arguments about potential inconsistencies and the inherent improbability of the events did not compel the jury to entertain a reasonable doubt as to the appellant's guilt. The court held that the jury's verdicts were not unreasonable and dismissed the appeal.

The appeal was dismissed, affirming the jury's verdict and upholding the appellant's convictions. The court found no significant possibility that an innocent person had been convicted of the offences.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

The appellant appeals his convictions on the ground that they are unreasonable and cannot be supported, having regard to the evidence.Background The appellant was born on 26 June 1958. He was aged between 31 and 36 at the time of the offending and 61 at sentence. The complainant in all counts was the appellant’s daughter. The appellant had two other younger children. The offending occurred over two distinct periods. During each period, the complainant said her mother was working shifts, with all offending taking place whilst the mother was away from home. The first period, constituting the first count of maintaining (count 1) and counts 2 to 8 inclusive on the indictment, occurred between 1 January 1990 and 31 March 1992, when the complainant was aged 11 to 13 years. The second period, constituting the second count of maintaining (count 10) and the two remaining counts of indecent treatment of a child under 16 who is a lineal descendant (counts 11 and 13) occurred between 1 January 1993 and 8 September 1994, when the complainant was aged 14 and 15 years. The offending conduct was first reported to police in 2015. However, evidence was led of complaints by the complainant to others between 1994 and 2013.EvidenceComplainant The complainant gave evidence that her mother worked as a nurse. The appellant worked as a salesman. He worked only during the day and cared for her and her sisters when her mother was working a late shift or worked overnight. The complainant said whilst she was in grade seven, she had a regular relationship with the appellant during the day but at night time, when her mother was at work, he would undress her and feel her breasts and vagina. The first occasion the appellant touched her sexually was during a fishing trip to an island on the Maroochy River. The complainant’s family was staying in her grandfather’s hotel in Buderim. Shortly after they arrived at the fishing spot, the appellant started kissing the complainant around her neck and ears. His hands were fondling her groin area underneath her clothes. The complainant did not say anything to her mother when she returned to her grandfather’s hotel. The next occasion the appellant touched her in this way was when they were back at their house in Thornlands. The appellant let her stay up if she sat on his lap. He was watching soft porn on television in the living room. The complainant’s sisters were asleep in their bedroom. Her mother was at work. It was around eight o’clock at night. After watching soft porn for some time, the appellant carried her back to her bed. At that stage, the complainant slept in her own room. They travelled past her sisters’ bedroom and the main bedroom. One of her sister’s woke up and asked why he was carrying the complainant to bed. The appellant did not reply. The complainant said when they arrived at her bedroom, the appellant undressed her and fondled her. It was “more kissing and groping of my vagina”.[1] She could not recall any conversation. The complainant did not think she ever said anything; “I was always fairly polite and worried about hurting his feelings. I just remember never wanting to hurt his feelings.”[2][1]AB380/40-41.[2]AB381/9-11.

Evidence

Evidence Before The Court

The offending conduct was first reported to police in 2015. However, evidence was led of complaints by the complainant to others between 1994 and 2013.EvidenceComplainant The complainant gave evidence that her mother worked as a nurse. The appellant worked as a salesman. He worked only during the day and cared for her and her sisters when her mother was working a late shift or worked overnight. The complainant said whilst she was in grade seven, she had a regular relationship with the appellant during the day but at night time, when her mother was at work, he would undress her and feel her breasts and vagina. The first occasion the appellant touched her sexually was during a fishing trip to an island on the Maroochy River. The complainant’s family was staying in her grandfather’s hotel in Buderim. Shortly after they arrived at the fishing spot, the appellant started kissing the complainant around her neck and ears. His hands were fondling her groin area underneath her clothes. The complainant did not say anything to her mother when she returned to her grandfather’s hotel. The next occasion the appellant touched her in this way was when they were back at their house in Thornlands. The appellant let her stay up if she sat on his lap. He was watching soft porn on television in the living room. The complainant’s sisters were asleep in their bedroom. Her mother was at work. It was around eight o’clock at night. After watching soft porn for some time, the appellant carried her back to her bed. At that stage, the complainant slept in her own room. They travelled past her sisters’ bedroom and the main bedroom. One of her sister’s woke up and asked why he was carrying the complainant to bed. The appellant did not reply. The complainant said when they arrived at her bedroom, the appellant undressed her and fondled her. It was “more kissing and groping of my vagina”.[1] She could not recall any conversation. The complainant did not think she ever said anything; “I was always fairly polite and worried about hurting his feelings. I just remember never wanting to hurt his feelings.”[2][1]AB380/40-41.[2]AB381/9-11. The complainant said on another occasion when they were living in that house at Thornlands, the appellant asked her to wash his genitals. He said it was going to be educational. The complainant washed his penis and testicles with soap for a couple of minutes. That was the first time the appellant asked her to wash his genitals. He asked her on subsequent occasions. On some of those occasions, the complainant was in the bath and he hopped into the bath. The complainant said when she was 12 years old the appellant said he needed to teach her how to use the shower more efficiently. He told her she needed to use shampoo as soap and rubbed it all over her body, including her vagina. That happened on only one occasion. The complainant at one point asked to share a room with her sister. She thought it might stop the appellant. However, her sister was a very deep sleeper. The sexual abuse continued in that room. The complainant could not indicate how many times as it “just happened so often that I couldn’t – Mum – like every time Mum was night duty, something happened.”[3] It was happening at least a couple of times a week. The conduct involved a lot of kissing and fondling. The appellant would also undress her. On one occasion she pretended to be asleep. The appellant said in a laughing manner “I know that you’re awake”[4] before jumping into bed with her. She asked if he was dressed. He replied yes, but the complainant knew he was lying because she could feel his naked penis against her skin. It felt hard.[3]AB385/17-18.[4]AB385/38.

Decision

Reasons for decision

Once it is concluded that it was open to the jury to find the complainant’s evidence reliable and credible, it was also open to the jury to conclude that there was no inherent improbability in the complainant’s evidence, such as to give rise to a reasonable doubt as to the appellant’s guilt of each of the offences.Conclusions On an independent assessment of the record as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences. There is no significant possibility that an innocent person has been convicted of the offences.Order We order the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

The respondent submits that the clinical conclusions reached by Dr Roberts lacked sufficient foundation and it was open to the jury to reject those criticisms. The complainant’s credit was bolstered by evidence of preliminary complaints made between 1994 and 2013, well before the complainant’s engagement in any type of therapy. Nothing in the evidence suggested the complainant’s account had varied. It was open to the jury to reject the assertion that the complainant’s participation in any type of therapy rendered her inherently unreliable.ConsiderationLegal Principles Determination of a ground of appeal that the verdict of a jury is unreasonable and cannot be supported by the evidence requires an appellate court to undertake its own independent assessment of both the sufficiency and the quality of the evidence to determine whether, notwithstanding there being evidence upon which a jury might convict, it would be dangerous in the circumstances to permit the verdict to stand.[57][57]SKA v The Queen (2011) 243 CLR 400 at 14. The High Court explained in Pell v The Queen[58] that:“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”[58](2020) 94 ALJR 394 at 402 [39] (footnote reference omitted). In the present case, a consideration of the evidence as a whole supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences. We consider that the jury, acting reasonably, was entitled to accept the complainant’s evidence beyond reasonable doubt. The matters relied upon by the appellant did not oblige the jury to entertain a reasonable doubt as to the appellant’s guilt. The verdicts are not unreasonable and the appeal should be dismissed for the following reasons.(a)The risk of altered memory The complainant’s therapy with Ms Holland commenced on 5 December 2013 and her treatment with Dr Drennan began in 2014. By that time the complainant had already made disclosures of sexual abuse by her father to HD in 1994, MP in 1994 to 1995 and VM in 1996. She had also told SC, firstly in 1997, and then over time up until 2013. Moreover, the complainant raised the subject of sexual abuse by her father in the first session with Ms Holland which was on 5 December 2013. There were nine sessions involving relaxation therapy or hypnotherapy between 11 December 2013 and 4 November 2014.