R v BDT [No 2]
[2024] QCA 228
•19 November 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v BDT [No 2] [2024] QCA 228
PARTIES:
R
v
BDT
(appellant)FILE NO/S:
CA No 54 of 2023
DC No 365 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Bowen – Date of Conviction: 2 March 2023 (Lynham DCJ)
DELIVERED ON:
19 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
19 July 2024
JUDGES:
Mullins P and Bradley and Crowley JJ
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child (count 1), indecent treatment of a child under 16 (expose), under 12, under care (count 3), four counts of rape (counts 8, 9, 15 and 16) and other indecent treatment offences (counts 4, 6, 10 and 14) – where the appellant was found not guilty of two counts of indecent treatment of a child under 16 (expose), under 12, under care (counts 2 and 5) and other indecent treatment offences (counts 7, 11-13) – where the complainant for each count was the appellant’s stepdaughter – where the prosecution case at trial depended upon the jury accepting the complainant’s evidence of the offending that constituted that count as truthful and reliable – whether there was inconsistency between the verdicts on counts 2 and 3 – whether the quality of the evidence relied on for both counts was the same
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
COUNSEL:
D A Marley for the appellant
D Kovac for the respondentSOLICITORS:
Jurgensen Horne Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: The appellant was found guilty after trial in the District Court before a jury of maintaining a sexual relationship with a child (count 1), indecent treatment of child under 16 (expose), under 12, under care (count 3), two counts of indecent treatment of a child under 16, under 12, under care (counts 4 and 6), four counts of rape (counts 8, 9, 15 and 16) and two counts of indecent treatment of a child under 16, under care (counts 10 and 14). These were all domestic violence offences. The appellant was found not guilty of two counts of indecent treatment of a child under 16 (expose), under 12, under care (counts 2 and 5), indecent treatment of a child under 16 (procure), under 12, under care (count 7), indecent treatment of a child under 16 (expose), under care (count 11), indecent treatment of a child under 16 (indecent film etc), under care (count 12) and indecent treatment of a child under 16, under care (count 13).
The prosecution had provided particulars of the counts that were provided to the jury at the commencement of the trial. It was specified in those particulars that counts 2‑11 and 13-16 were particulars of count 1 and that count 12 was not a particular of count 1. The particulars for count 1 were otherwise set out in that document as:
Showered naked with the complainant; and/or
Masturbated his penis in front of the complainant; and/or
Had the complainant masturbate his penis; and/or
Ejaculated on the complainant’s stomach; and/or
Fondled the complainant; and/or
Touched the complainant’s thigh and chest area.
Inserted his penis into the complainant’s mouth; and/or
Touched the complainant’s vagina; and/or
Inserted his finger/s into the complainant’s vagina.The ground of appeal is that the verdicts of guilty were inconsistent verdicts according to the evidence. The focus of the appellant’s counsel on the hearing of the appeal was the inconsistency between the acquittal for count 2 and the guilty verdict for count 3 when it was submitted that the quality of the evidence that was relied on for both counts was the same. Both counts 2 and 3 were particularised by the prosecution as the appellant “masturbating his penis in front of the complainant”.
The prosecution case at trial in respect of each of the counts depended upon the jury accepting the complainant’s evidence of the offending that constituted that count as truthful and reliable. The defence case was that none of the alleged acts occurred. The issue for the jury at the trial was whether the offending occurred as detailed by the complainant.
Background
The complainant was the stepdaughter of the appellant. The period specified for the maintaining count was between 21 November 2016 and 12 May 2019 when the complainant was aged between 9 years and 12 years. The complainant’s mother met the appellant in 2011 and they married in 2014. They commenced living together in one regional town (the first town) with the complainant. The complainant’s mother and the appellant had children together between 2012 and 2019. The family (including the complainant) relocated to a second regional town (the second town) by 2014. They moved from their first address (the first address) in the second regional town to the second address (the second address) in that town from July 2018.
The appellant had left ankle surgery on 21 November 2016 and was discharged from hospital the next day. When he was discharged, he was placed in a back slab which was a plaster cast that went around the back of his leg and he remained in that cast for two weeks. On 7 December 2016, the cast was removed, the sutures were removed from the wound and he was placed in a moon boot that was intended to be worn for four weeks. When the appellant was reviewed on 21 December 2016, he was not wearing the moon boot and reported that he felt good and was pain free and walking without issues on that ankle.
The complainant went to stay with her biological father and his partner (the partner) from Mother’s Day 2019. In July 2019, the partner saw online an inappropriate photograph of the complainant in a bikini that was too small for her and spoke to her about it. It was that conversation in which preliminary complaint was made by the complainant about having showers with the appellant. In a second conversation that was a few weeks later after the partner had seen an even more inappropriate photograph of the complainant that had popped up on the partner’s son’s iPad, the complainant made preliminary complaint to the partner to the effect that the appellant “pushed her head into his private areas and made her do stuff while his hands went inside of her”. The partner and the complainant’s father took the complainant to the police.
Summary of the evidence in respect of the offending
The complainant’s s 93A statement was recorded on 13 August 2019. The complainant brought to the interview with police the notes she had typed up on her iPad in the previous couple of days. Those notes were exhibit 2 at the trial. Relevant to counts 2 and 3, those notes recorded that the appellant would always ask the complainant to have showers with him when her mother was at work and when he broke his ankle, he said to her “can you help me in the shower”.
The s 93A interview included the following evidence. After the appellant had returned home (to the first address) after his ankle operation, he asked the complainant to help him in the shower when her mother was at work. All she did was sit in the ensuite talking to the appellant while he was sitting in the shower with his foot on a red stool. She saw his whole body. She did not help him on that occasion.
The second time the appellant asked the complainant to come into the shower with him in the ensuite which she did, he started talking and then he started stroking his private part and fiddling with his nipples. (It was during the second shower time that it was alleged that count 2 was committed.) The complainant said the second shower time was a couple of weeks after the first occasion but also thought that it might be close to two months after the first shower time. Her mother was at work. The police officer asked for more detail about how the appellant was stroking his penis. The complainant said:
“So, when he went in, and when I, exactly the time that I got undressed, he started biting his lip. He started putting his hands below and I had no idea what he was doing but now I realise what he was doing, and it just disgusts me. And, and, yeah.”
The complainant said the appellant was using his hand pulling his private part back and forth. The complainant said she did not “even understand what he was doing really” and she thought it was normal. She then described what he did to his nipples with his other hand. The complainant said the appellant was “very … touchy”. In response to the police officer’s question as to what she meant by “very touchy”, the complainant stated:
“Like, I’m here and then he’s here and um, he would either be laying down or standing up with a, like, a, you know, old, like, the grey Woolworths bags. He’d have one of them on his cast and he would either be standing up or like, sitting down, resting his thing on the red stool, and when he stood up on the second time, he was like, walking around and like, not walking around, but like, moving, closer to me. So he would be right next to me, like, him right here and me right there, and he would be washing himself. Like, or grabbing something. Like, the shampoo and he would go, like, go down, bend over and then pick it up and then he would look up and, yeah, he did that like, all through the shower, like [INDISTINCT]. In the shower time there was like, ten minutes in there and same with the other one.”
In respect of the second shower time, the complainant confirmed that the appellant had the cast on. The complainant hopped out of the shower first and quickly got dressed. The appellant kept pulling his penis back and forth until the complainant got dressed. When the appellant got out of the shower, his penis was erect.
The occasion that was described as “the third shower time” happened when the appellant’s cast was off. He had the moon boot and took that off for the shower. They both got in the shower in the ensuite, he started pulling his penis backward and forward himself (count 3) and then he got the complainant’s hand and started doing it with her hand (count 4). This occurred while the appellant was standing up. The complainant was standing up too beside the soap container and the appellant was in the corner on the other side of the shower. The third shower time occurred probably one week after the second shower time. The complainant described in detail how the appellant grabbed her wrist and pulled her towards his penis and when her hand was on his penis “he forced [her] to pull it up and down … and then he did it faster”. The complainant pulled her hand away, the appellant let her go and “he started doing it himself again”. His penis was erect. In response to the police officer’s questioning, the complainant described in detail how the appellant’s penis looked. The complainant’s younger sisters were crying, so the complainant got out of the shower, got the towel and went into her room to get dressed and then attend to her sisters.
There was another time at the first address during the school holidays when the appellant had finished his shower and called out to the complainant. She went to his bedroom and he was wearing a towel around his waist. The complainant was standing near the doorway beside the door. The appellant put the towel on the bed. He was naked. He “did one stroke with his penis” and ejaculated onto the towel (count 5). The complainant asked him what that was and he said “it’s sperm that grows in a woman’s body to get them pregnant”. It was a yellow towel. He always “released” on a yellow towel.
After one of the showers, the complainant was getting dressed in the bedroom of her mother and the appellant, when the appellant told her to get on the bed. The complainant had used the yellow towel to dry herself and that was on the bed. She was lying on top of the yellow towel, when the appellant ejaculated onto her stomach (count 6). The complainant described wiping off the ejaculate and that it was “really sticky”. When the police officer asked about the yellow towel, the complainant explained:
“Um, the two towels that he used, mainly used was for his releasing, was the, there’s a black towel and there’s a yellow towel. I’m pretty sure he was using the black towel in the other bathroom and the yellow towel was there.”
There was an occasion before her 11th birthday in the lounge room of the first address when the appellant told her to sit on his lap. She noticed there was movement of his penis when she did so (count 7) and when she got off him that his penis was hard.
The other offending that comprised counts 8-16 was committed at the second address. For the purpose of dealing with the ground of appeal that focuses on the inconsistency of the verdicts between counts 2 and 3, it is not necessary to set out the complainant’s evidence in detail in relation to this later offending. Apart from count 11 which was the subject of oral submissions at the hearing of the appeal, it is sufficient to describe the nature of the offences and note that there was an escalation in the seriousness of the offending at the second address as that was the location of the four counts of rape of which the appellant was convicted. There were two counts of rape which were particularised as the appellant inserting his penis into the complainant’s mouth (counts 8 and 9). Count 10 concerned another instance of the appellant ejaculating on the complainant’s stomach. The three counts of indecent treatment of a child under 16, under care of which the appellant was acquitted (counts 11-13) were particularised respectively as the appellant masturbated his penis in front of the complainant, the appellant showed the complainant pornography on the television, and the appellant used the complainant’s hand to put a condom on his penis. Count 14 was constituted by the appellant’s use of his fingers to touch the complainant’s vagina. Counts 15 and 16 were rapes committed by the appellant inserting his fingers into the complainant’s vagina.
The conduct that constituted count 11 was the last incident in the series of three offences that were described as the shower and bedroom time at the second address. After describing the oral rape that occurred when the complainant and the appellant were in the shower together which constituted count 9 and the ejaculation on the complainant’s stomach in the bedroom that followed after the shower which constituted count 10, the complainant stated that the appellant went to the toilet “to do his thing”. The complainant got dressed and walked out into the lounge room. On her way, she passed the toilet. The toilet door was open and the complainant saw the appellant leaning against the toilet watching his phone and stroking his penis.
The appellant gave evidence in which he denied the allegations made by the complainant. The appellant and his wife gave evidence that when he was recovering from his ankle surgery, his wife took two weeks off work to be at home with him and, when she returned to her permanent part time employment, the babysitter was always present in the home and there was never a time when the appellant was left with the children, even for a couple of hours. The appellant conceded, however, that apart from the occasion when he had the broken ankle (by which he was referring to the recovery from the ankle surgery), there were occasions when he was at home with the children, including the complainant. The appellant was able to shower himself without anyone’s assistance after he returned home from his ankle surgery. The appellant’s wife accepted that, even though the appellant had some mobility issues after the ankle surgery and walked around with difficulty, he could still shower by himself.
The babysitter who was 15 years old when she looked after the children of the appellant and the complainant’s mother whilst the complainant’s mother was at work stated that the appellant would pick her up and drop her home and she would babysit for three or four hours. (That evidence also suggested that by the time that the complainant’s mother returned to work, the appellant had sufficient mobility to drive.) While she was babysitting, the appellant sat on the couch “basically, the whole time in the lounge room”. At no stage did she see the appellant showering with any children.
Inconsistent verdicts
The principles that are applicable to determining whether jury verdicts are inconsistent were summarised in the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 365-368. The third proposition in that summary at 366 described the test where the inconsistency arises in the jury verdicts upon different counts in a criminal trial as “one of logic and reasonableness”. It was noted in the fourth proposition at 367:
“Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.” (footnotes omitted)
There was an acknowledgement in the fifth proposition (at 368) that “a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”. It was then stated as part of the fifth proposition:
“It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’” (footnote omitted)
The appellant’s counsel conceded that the inconsistencies (other than between the verdicts on counts 2 and 3) were not sufficient to meet the test necessary to show that the verdicts of guilty were unreasonable by reference to the acquittals on the other counts on the indictment. It was submitted that the inconsistency between the verdicts on counts 2 and 3 affected the reasonableness of all the guilty verdicts returned at the trial.
The appellant’s submission about the complainant’s evidence in respect of counts 2 and 3 was that the quality of the evidence was identical. That submission is not borne out by close consideration of the complainant’s evidence. Count 2 is the first instance of which the complainant gave evidence of inappropriate conduct of the appellant that was the subject of a charge. The occasion was described as the second shower time, as the complainant did describe an earlier occasion when the appellant was recovering from his ankle surgery, when he called her into the ensuite while he was having a shower and talked to her. Nothing happened on the occasion of the first shower time other than her seeing him naked.
The second shower time was the first occasion on which the complainant alleged she had seen the appellant masturbate his penis. Her reporting to the police of what she saw was after the other instances in which she alleged inappropriate conduct of a sexual nature on the part of the appellant and was done by the complainant with a better understanding of what happened at that second shower time than she had when it occurred. That was why she told the police in the s 93A interview that she had no idea what the appellant was doing at the time and now that she realised what he was doing, she was disgusted. There was therefore some admitted reconstruction by the complainant as to what had occurred in the second shower time. The incident did not involve the appellant touching the complainant in any way. The jury had been instructed on the requirement that each element of an offence had to be proved beyond reasonable doubt. Notwithstanding that it was not a specific issue on which counsel addressed, the jury may have had a reasonable doubt whether the appellant wilfully exposed the complainant to what he was doing with his penis during the second shower time.
In addition, the complainant’s evidence in respect of count 3 was much more detailed than the evidence she gave for count 2. It also differed in that count 4 was committed in the same episode as the offending that constituted count 3. The difference in detail between counts 2 and 3 was reflected in the jury’s question during their deliberations about count 2. The jury asked by reference to the s 93A statement about the location of the complainant for count 2. The question was directed to whether the complainant was meant, or was in a position, to see the appellant masturbating his penis. In giving the redirection to the jury in answer to their question about count 2, the relevant parts of the s 93A statement were either read or replayed, including the passage set out in [11] above. The complainant gave a more detailed description of where she was in the shower for the conduct that constituted count 3 and in how the appellant moved towards her.
As the above analysis shows, the verdicts on counts 2 and 3 can be reconciled without necessarily concluding that the jury must have rejected the complainant’s evidence about being in the shower for the second shower time, as the evidence that was given may not have been sufficient to satisfy the jury that all elements of count 2 had been proved beyond reasonable doubt. The verdict of acquittal in respect of count 11 is also explicable on the basis that, on the complainant’s evidence about walking past the toilet when the door was open and the appellant’s back was facing the doorway, the jury may not have been able to exclude beyond reasonable doubt that it was accidental that the complainant saw what the appellant was doing.
The jury had a question about count 5 during their deliberations that asked to be reminded of the complainant’s s 93A evidence on “description on towel yellow, which she describes sperm”. There was no description of “sperm” given by the complainant in her s 93A statement, as she was standing at the doorway when the incident happened. The quality of the evidence in relation to count 5 can also be contrasted with the evidence given in respect of count 6. In relation to count 7, one of the elements of the offence was that the appellant procured the complainant to commit the indecent act. It was open to the jury not to be satisfied of that element of the offence without necessarily rejecting the complainant’s evidence if they could not exclude beyond reasonable doubt that the positioning of the complainant’s bottom on the appellant’s groin was coincidental. The explanation for the acquittal on count 12 was that, by the time the police searched the second address, no pornography was located. Similarly, the acquittal on count 13 is explicable by the appellant’s unchallenged evidence about the lack of condoms in the house, as he did not use them. There was also no preliminary complaint evidence in respect of the conduct that was the subject of counts 5, 6 and 11-13.
The mixture of guilty and not guilty verdicts in the context of a trial where the quality of the complainant’s evidence was not the same on all counts and there are other explanations for the verdicts of acquittal on those counts that were the focus of submissions, which was primarily count 2 but also count 11, indicate that the jury had been careful in applying the trial judge’s directions on what they had to be satisfied about in respect of each count before returning a guilty verdict. The appellant has failed to show that the conviction on count 3 was inconsistent with the acquittal on count 2. Consideration of the acquittals on counts 5, 7 and 11-13 also does not suggest any lack of logic or common sense in the jury’s approach to their task. As the ground of appeal of inconsistent verdicts depended on showing inconsistency between the verdicts on counts 2 and 3, the appeal does not succeed.
Order
It follows that the order which should be made is: Appeal dismissed.
BRADLEY J: I agree with the reasons and proposed order of Mullins P.
CROWLEY J: I agree with Mullins P.
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