R v BEF

[2024] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEF [2024] QCA 32

PARTIES:

R
v
BEF
(appellant)

FILE NO/S:

CA No 214 of 2022
DC No 113 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 23 September 2022 (Lynch KC DCJ)

DELIVERED ON:

12 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2023

JUDGES:

Bond and Dalton and Boddice JJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with one count of rape and one count of maintaining an unlawful relationship with a child – whether the count of rape was unreasonable – whether the jury could not be satisfied of the act of penetration beyond reasonable doubt – whether it was open to the jury to be satisfied of the complainant’s reliability and credibility

Dansie v The Queen (2022) 274 CLR 651; (2022) 96 ALJR 728; [2022] HCA 25, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied

COUNSEL:

A J Kimmins for the appellant
S L Dennis for the respondent

SOLICITORS:

Donnelly Law Group for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. BOND JA:  I agree with the reasons for judgment of Boddice JA and with the order proposed by his Honour.

2. DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.

3. BODDICE JA:  On 23 September 2022, a jury found the appellant guilty of one count of rape and of one count of maintaining a sexual relationship with a child.  Both counts related to the same female complainant.

4. The appellant appealed those verdicts, on the ground that they were unreasonable and against the weight of the evidence.

5. At the hearing, the appellant limited the appeal to the verdict of guilty of rape.

   Background

6. The offences were committed in 2019.  At the time, the appellant was the partner of the complainant’s mother.  Both offences were domestic violence offences.

7. At the time of the commission of the offences, the complainant was aged 14–15 years.

8. The complainant first spoke to police on 30 July 2019, then on 4 October 2019.  Those interviews were recorded, and the recordings were played to the jury.  The complainant gave evidence on 18 November 2021.  It was also recorded and played to the jury.

   Offences

9. The count of rape was charged as having occurred on a date unknown between 3 January 2019 and 12 January 2019.  The act of rape was particularised as penetrating the complainant’s vagina with the appellant’s penis, without her consent.

10. The count of maintaining a sexual relationship was particularised as having occurred between 3 January 2019 and 29 June 2019.  The acts constituting that count, were particularised as, on multiple occasions, touching the complainant’s breasts and vagina, penetrating her vagina with his tongue, fingers and penis and the penetration of her vagina without her consent, the subject of the count of rape.

    Evidence

    Complainant

11. The complainant, who was born overseas, moved to Australia with her mother in 2010.  Her mother had been in a long distance relationship with the appellant since 2008, as the appellant was posted away to various locations due to his service in the Defence Force.  It was a big move to come to Australia.

12. The complainant went to primary school in Queensland.  In 2017, the complainant and her mother moved interstate with the appellant.  They returned back to Queensland in 2019, after the appellant was posted to a base in Queensland.

13. The complainant said that in the previous year (2018), the appellant would come into her bedroom, grab her hand and do “hand jobs”.[1]  The complainant would pull her hand away and pretend to be asleep.  The complainant said the appellant would gently place his hand on her hand, hoping not to wake her up, and use his own hand to move her hand on his penis, rubbing it up and down.  This behaviour was not frequent.

    [1]AB 261/35.

14. When they first came to Queensland in 2019, they lived in a motel for a few days, before moving into their home.  Whilst staying at that motel, the complainant asked the appellant to “crack my back”.[2]  Whilst doing so, the appellant tried to take off her bra and played with her breasts, before stripping off her trousers and underwear and touching her vagina with his hands, licking it with his tongue and putting his penis in her vagina.  The complainant said when this was happening, she felt a sensation that she “wanted to turn around and slap him”.[3]  The complainant said her mother and little sister were present at the motel, but asleep.  It was night-time.

    [2]AB 281/30.

    [3]AB 278/45.

15. The complainant said the back cracking led to sexual things in school term one of 2019, perhaps a couple of weeks before the holidays.  The appellant would slowly slide down her clothing, taking off her trousers and underwear.  He would touch her vagina with his hands, before putting his fingers inside her vagina.  He would then lick her vagina with his tongue, putting his tongue into her vagina.  The appellant would then place his penis into her vagina.

16. The complainant said the appellant would try to go deeper into her vagina with his penis, but she did not have her legs wide open, hoping he would take it out and stop.  The complainant described her vagina as “Like nearly like that, like a V, really skinny V.”[4]  When the appellant took his penis out he would say “that was too close”.[5]  The appellant was not wearing a condom at the time.

    [4]AB 272/40.

    [5]AB 273/3.

17. The complainant said that behaviour spanned term one and term two.  It happened often, in the night-time.  It would “like go the same way, it would be the same routine”.[6]  The last time she remembered it happening to her was in term two, about two or three months prior to speaking to police.  The complainant had asked the appellant to crack her back because she was in a bit of pain.  That led to “sexual touching, licking and everything else”.[7]

    [6]AB 275/52.

    [7]AB 281/31-32.

18. The complainant said all the times were the same and from two to three months prior to the initial disclosure to police, nothing more had happened.  The appellant had had an operation about one month prior to the complaint’s disclosure to stop being able to have children.  The complainant said, “… that’s when I just lost it, and went, no, I don’t trust him, ‘cause I feel like more’s just gonna happen, and just, I just couldn’t do it.  So I snapped open”.[8]  The complainant said she knew it was wrong.

    [8]AB 262/15.

19. The complainant again spoke to police on 4 October 2020.  During this interview, which was also recorded and played to the jury, the complainant confirmed that something had only happened once at the motel.  She estimated it had happened at least 10 times during term one, in the night-time, at the house and at least five times in term two, in the same house.

20. In her recorded evidence on 18 November 2021, the complainant said the first time the appellant did something sexual to her, in Queensland, was at the motel in January 2019.  They stayed in one room for at least a day and in a second room for a couple of days to a week.  There were three separate beds in the second room.  The incident happened on the bed closest to the bathroom.  There was another room attached to the room where the complainant’s mother, the appellant and her younger siblings slept.

21. The complainant said all of the other sexual things the appellant did to her, in Queensland, happened in her bedroom of their house.  Most times she would be on her bed.  At least once, it happened on a rug on the floor.

22. On 30 July 2019, the complainant spoke to a Defence Force mentor (the Mentor) at the school.  The complainant had a friend in the room at the time, (HA).  The complainant told the Mentor “I’ve been sexually assaulted by my stepdad in my own home”.[9]  The complainant said she was in tears and did not want to talk about it at that time.  Later, she went into another room and spoke briefly to the guidance counsellor.  Shortly after, her mother arrived at school.

    [9]AB 298/10.

23. The complainant said she did not tell her mother anything about what the appellant had done to her at that time.  She wrote down details and gave it to her mother.  It was a six page handwritten document, dated 30 July 2019.

24. The document was read to the jury.  It was in the following terms:

    “Tuesday 30 July 2019 – 19.  At 6.45 am I awoke to my alarm clock, putting it on snooze until 6.55 am is what I need done.  But I failed – but failed since I couldn’t get back to sleep, so I did my morning routine.  Around 7 am, I saw my mum awake.  I continued my routine while Mum did hers.  I packed the rest of my lunch and put it away in my schoolbag.  Next, I had two plain flavoured Weet-Bix for breakfast.  Then I got dressed into my uniform, socks, shoes, jumper, under – under school jacket and my hair done.  Also sprayed on deodorant.  My hair was half up and half down with a silver metal headband.

    Teeth brushed, school bag – … [M] arrived, [E] knocking on the door.  I said goodbye and love you to Mum.  Grabbed my bag and out the front door I went.  [M] drove [E] and I to school.  Listening to the radio, I was looking out the backseat window, hearing a blurred radio and [M] saying something about cloths.  Arrived at school.  Front gates, saying goodbye to [M].  I talked about [HA] since she’s been bitchy.  [E] and I walked through the year 9 area.  Said bye at the stairs and started to go to our groups.  Not a lot happened besides [V] telling me about her issue with [S].  I didn’t really pay full attention.  I called [HA] a slut because she called me one first.  Apparently my skirt was too short, which it wasn’t.  The form bell rang at 8.45.  I walked halfway with [V] to form class before turning to walk to my form class.  I walked up the stairs, through the verandah and put my bag on the bag racks.  [HA] arrived after [R] – … on the racks.  [R] was talking to me but I wasn’t listening.  I looked over at her, seeing [HA] talking to her.  [R] let out a sigh, saying that she wasn’t a messenger.  She called out to me, “[HA] wants you to stop talking shit”.  I got anger and called back, “I’m not fucking talking shit”.  [R] was still talking when I walked off towards the stairs.  I walked down the stairs towards [the Mentor].  Defence Mentor Office Block.  All the crap that happened I explained to [the Mentor].  I told her about [HA] having problems and she wasn’t doing anything about so I did something about it.  [the Mentor] called for [HA] to walk down for a chat.  [the Mentor] told me not to talk until [HA] was done.  She talked about the bitchy things that she said and heard from me.  I said I was sorry to [HA] for calling her a slut.  But she didn’t sorry for calling me one.  [the Mentor] told us about what a slut is.  A slut is someone sleeping around with a lot of different guys.  [the Mentor]’s words, not mine.  [the Mentor] talked to me. [HA] there – … my mum was strict and wouldn’t allow me to go and be free to have a sexual times.  At that point/moment, I opened my mouth saying, “I don’t need to be free.  It’s at home”.  I shocked [the Mentor] and tears in my eyes.  [HA] was told to leave because it became serious.  [HA] did leave after saying that she had perverted dad – … I was in deep crying tears when [HA] gave me a huge hug.  [the Mentor] got me to move closer to her after [HA] left swearing to keep it to herself.  Questions were asked and I answered them the best I could.  I told and explained my situation.  Was very hard to do it but I was able.  [the Mentor] next called a guidance counsellor to talk about and listen to my problem.  They both listened and [the Mentor] had taken notes earlier when I told her.  After that I told a police officer and was interviewed.  This is what I told them, explaining flashbacks, 2018, around October of time, I would hear my door creak open.  I would think it’s my mum so I would pretend to be asleep but it was [the appellant] yet I pretended to be sleeping.  I thought [the appellant] was checking on me but, wow, I was wrong.  Sleeping on my stomach, head facing my white shelves.  [The appellant] grabbed my left hand, held it with his hand and do a hand job movement.  Don’t really remember what the dates were but I knew this happened a few times.  Once I was sleeping on my back in my leopard onesie,  [the appellant] had creaked my door open and gently rubbed a finger or two around my breasts.  I was glad I was moved because he left.  That’s 2018.  Now, 2019.  After moving from [interstate], staying in [a regional country Motel], night time and I finished a movie.  Mum in her bed.  [The appellant] cracked my back like I asked him.  Then he tried to unclip my bra.  Failed.  I’m always wearing a sport bra.  So he slid my shorts down and my wear of the under.  He fingered around inside of me, you know where, then he licked me there as well as rubbed his unprotected meat stick on my gateway.  That’s what I remember from that one.  Term 1, some point, Mum asleep.  I asked for [the appellant] to crack my back.  So he does, not every day/night.  He would try to play with around with my top half.  Sport bra best thing ever.  Trousers or shorts slid down and underwear.  [The appellant] would lick or finger me second before putting his stick in me.  I wished I screamed.  Don’t know why I didn’t.  I had bit my tongue and kept my mouth shut.  Don’t know how long this went on for but it stopped before the 15^th of May.  Nothing happened when my Granny was over from [overseas].  Then it started up again days or weeks after the 17^th of June.  From today, 1 August ’19, this whole thing stopped around the end of June.  I have never asked for back crack since.  I just wished I spoke up sooner or screamed or it never happened.  But this is the truth as much as I remember.”[10]

    [10]AB 180-182.

25. The complainant said her grandmother came over for the birth of her brother.  The appellant started touching her again after 7 June 2019, when the grandmother left.  He did so for at least three days.[11]  She could not remember when was the last time.

    [11]AB 299/35.

26. The complainant accepted that moving around was unsettling for her, but she “got through it”.[12]  The Defence Force had programs to assist students who lived in a Defence Force household with social, academic or behavioural problems.  The complainant had attended a couple of times.  She had some problems with her behaviour as a child.  The complainant had been diagnosed with ADHD.[13]  There were occasions in primary school when the complainant assaulted or threatened other students.  In addition to counselling services, she saw a psychologist at least twice in 2017, when she was around 12 to 13 years of age.

    [12]AB 302/20.

    [13]Attention Deficit Hyperactivity Disorder.

27. The complainant said she was 13 or 14 years of age when the appellant first did something sexual to her.  It was in 2018, interstate.  She could not remember what part of the year, but said it was cold in her bedroom.  The light was off.  She pretended to be asleep.

28. The complainant could not remember how many times that sort of thing happened interstate.  She recalled at least about three events.  The complainant thought she was dreaming until it happened the other two times that she could remember.  It was after she had started seeing the psychologist and after she had engaged with counsellors at her high school in 2017.  She had engaged with counsellors after she had been suspended over taking a knife to school.  Another reason was because she had been making notes about self-harm.

29. The complainant accepted that in the leadup to returning to Queensland, there was a significant incident between her and her mother at a shopping centre.  Police became involved at that time.  They asked if the complainant wanted a protection order against her mother.  It was because of that incident, the appellant had to come back from an international posting.  Their return to Queensland occurred in circumstances where either the appellant had to get a posting back to Queensland, or her mother was going to go back overseas.

30. The complainant accepted that whilst they were staying in the motel, a friend had stayed at least a couple of nights in the same room with the three beds.  The complainant said she did not like the incident at the motel.  She felt frightened and was upset.  She did not want it to happen again.  She agreed she did not do anything herself to actively try to make sure it did not happen again.  She was scared to do anything as the appellant was trained “to do absolutely anything”.[14]

    [14]AB 313/40.

31. The complainant said sexual activity by the appellant started at their home three to four weeks into first term.  Each occasion was in her bedroom.  All occasions involved the same thing, in the same way.  She would ask for her back to be cracked.  She would be lying on her stomach when he removed her clothes and performed the various sexual acts.  It was on her bed on every occasion, except one, when it happened on the rug on the floor next to her bed.  The rug had been purchased when they lived interstate.

32. The complainant accepted that the first time she had said anything about it happening on the floor in the bedroom was the day before giving evidence.  She just remembered it had happened on the rug once.  No one was in the house at the time.

33. The first person the complainant spoke to, about what the appellant was doing to her, was the Mentor on 30 July 2019.  She did not mention it to any of the counsellors interstate.  At high school, she would discuss various things with other girls and friends.  She would tell them stories about books she planned to write and about the characters.  She denied writing anything sexual.  She denied telling her friends that she was a stripper.  She did not tell any of them anything about what had occurred with the appellant.

34. The complainant went to speak to the Mentor because she was having a fight with HA.  The complainant had told HA to stop spreading things.  HA had called her a slut.  HA was present when the complainant first started to speak to the Mentor.  At some point, the complainant spoke to a doctor about what had taken place between her and the appellant.  She told the doctor there had been vaginal penetration, but no ejaculation.  The complainant said each time the appellant “just pulled out”.[15]

    [15]AB 312/35.

    Preliminary complaint

35. The Mentor held the position of Defence School mentor at the complainant’s high school on 30 July 2019.  At about 8.50 am that day, the complainant came into her room very upset about issues with her friendship group.  They did not believe that she was not a virgin.  The Mentor replied, “You know, you shouldn’t be worried about that sort of thing at your age.  You probably should be proud not to be a virgin”.[16]  The complainant replied, “But I’m – I’m not.  My stepdad.”[17]

    [16]AB 158/35.

    [17]AB 158/35.

36. The Mentor said at that stage, the student that the complainant had been having issues with was in the room.  The Mentor asked her to leave immediately.  After that student left, the complainant told the Mentor her stepfather and the complainant had been having an intimate relationship for quite a while.  Her stepfather would come into her bedroom late at night and sexual acts would take place between them.

37. The complainant spoke of a few incidents.  One of them was that he would grab her hand and put it over his penis and masturbate with the complainant’s hand.  The complainant said she would pull away and try and act like she was asleep.  Other times they would wrestle and massage.  It would lead to him pulling off her underwear and having sex with her.  At one stage, he was not able to get her sports bra off.  The complainant said he would pull out because he did not want to get her pregnant.  The Mentor said the complainant told her the appellant “would say, ‘Thank God.  I’ve got to make sure I pull out in time.’ Words to that effect.”[18]

    [18]AB 159/25.

1. The Mentor said the complainant told her it had happened a few times before and that it had happened interstate where he was previously posted.  The complainant said she did not want to tell her mother because she did not want to cause trouble with the family.  The complainant also said the appellant was really good at massaging because he had been to Thailand a few times and he used to get a lot of massages over there.  The complainant said she was a dancer and she had a really bad back and the appellant used to be able to crack her back and help it.

2. The Mentor said as a result of that conversation, she took the complainant to the guidance counsellor.  Later that day, police attended the school.  The complainant spoke to police.

3. In cross-examination, the Mentor described her role as Defence Force mentor as like a youth worker for students with Defence parents.  The appellant used to come into her room a fair bit before, but she would not speak much.  The Mentor recorded notes of her conversation of 30 July 2019.  She did not record the name of the other student who was present at the start of the conversation.  The notes were just dot points.

4. The Mentor’s handwritten notes contained, “Last year, a couple of times pretended to be asleep, hand job.  This year, physically wrestling, cracking her back in her room.  Starts playing around.  Tries to unhook her bra.  Tries to pull trousers down.  Touches and licks you on her skin and vagina.  Puts penis in one or two handful of times.  Wet, but know it’s wrong.”[19]  The Mentor agreed that her impression from the conversation was that the complainant enjoyed the sexual contact.

   [19]AB 79/11-15.

5. After the conversation, the Mentor typed up maybe two small paragraphs.  The events were fresh in her memory at the time.  She did not make any note of what the other student said because she had nothing at all to do with what was being spoken about by the complainant.  The Mentor denied that the other student had said that the complainant “has been saying she had sex with the boys”[20] and that the complainant had denied it, but then said that her stepdad had raped her.

   [20]AB 163/5.

6. The Mentor’s typewritten notes contained the following:

   “She alleged her stepfather has had sex with her.  I asked her when this happened.  She stated it began last year, 2018, when he came into her room while he though she was asleep and used her hand to give him a hand job.  She stated she rolled away from him and folded her arms and continued to pretend she was asleep.  She stated that this had happened a couple of times.

   She then stated that this year, sometime during term 1, maybe term 2, they were wrestling, and he cracked her back like he often does.  She stated they were on her bed, and they started playing around.  He tried to unhook her bra, but it was a sports bra, and he couldn’t get it off.  She then stated that he pulled her trousers and knickers off and started to touch her and lick her around where her wee comes out, that he put his thing in and pulled it out and said, ‘That was close.’  She then stated that this had happened a handful of times.  [The complainant] stated she wanted to tell her mum, but didn’t want to upset her, and that she got wet when he did it, but knew it was wrong.”[21]

   [21]AB 164/20-28.

7. The Mentor said she recorded what she was told during the conversation.  These things were not prompted by the Mentor questioning the complainant at all.

8. There was a guidance officer (Guidance Officer) at the complainant’s school on 30 July 2019.  The Mentor brought the complainant to him that day.  The complainant told him she had been sexually abused by her stepfather.  It had happened earlier in the year and in the years prior.  Her stepfather would come into her bed; she would pretend to be asleep; and he would do sexual acts to her.  On one occasion, at least, he had had unprotected sex with her.  Some of the acts had occurred in term one and term two of that year.  There was one instance where her stepfather tried to massage her because she was feeling sore.  That led him to take off her underpants and bra and penetrate her vaginally.  She said they had had unprotected sex.

9. In cross-examination, Guidance Officer confirmed that only the complainant and the Mentor were present for his conversation with the complainant.  The Mentor did not provide him with any notes.  She told him of her conversation with the complainant.

10. HA spoke to police on 3 November 2019.  In that interview, which was recorded and played to the jury, HA told police the complainant, “would act way differently at school, like, like a slut and everything”.[22]  The complainant would tell everyone at lunch that she had sex with people her age and that she was a stripper.  She said she would go out at night-time and strip.  HA said she called the complainant a slut.  They then went to see the Mentor.  HA told the Mentor that the complainant had said she had had sex with boys her age.  The complainant said, “no I haven’t, but my step-dad like rapes me and stuff, like at night time”.[23]

    [22]AB 256/30.

    [23]AB 256/40.

11. HA said the Mentor asked the complainant if she was a virgin.  The complainant said, “no”.  The Mentor said that was okay and the complainant said, “cause my step-dad rapes me”.[24]  The Mentor then asked HA to leave the room.

    [24]AB 257/45.

    Investigation

12. Anthony Eyles (Eyles), a police officer, attended the complainant’s school on 30 July 2019.  He took a complaint of a sexual nature from the complainant.  Eyles agreed that one aspect of an investigation of sexual offending, is the making of a pretext call in an effort to obtain admissions.  The complainant did not want to do a pretext call.  At some point, the complainant asked whether it would be okay if she just recorded the appellant herself.  Eyles did not ask her to do so.  Later, the complainant gave him a USB stick containing a number of taped conversations.  Eyles never listened to those recordings as he had not asked her to record them.  The complainant had also told him there was not much on them in terms of assisting the case.

13. Eyles accepted that when he spoke to the complainant, the Mentor was present as her support person.  The complainant wanted her present in the conversation.  He accepted the complainant had told him that she did not really have a good memory.

14. Eyles also accepted that HA had said there were “a few people that know, that could, that [the complainant] told that her step-dad raped her and stuff”.[25]  Eyles could not recall why he did not ask who those people were, but agreed it would be appropriate to try to identify them as potential witnesses.

    [25]AB 197/45.

15. Eyles did not organise for an examination of the complainant by a forensic medical officer.  An examination is generally appropriate if the offence is said to have been committed within the last seven to 10 days.  It is an invasive procedure and there was nothing to indicate that there had been any recent offences.[26]

    [26]AB 206/10.

16. Lisa Weller (Weller), a scenes of crime officer, took photographs of the residence in September 2019.  Weller also undertook a scientific examination of one of the bedrooms to see if she could detect the presence of seminal fluid.  She was requested to screen the floor and mattress in the bedroom.  Samples of those sites were sent for confirmatory testing.  One of those areas was a purple rug on the floor.  The presumptive test indicated the possible presence of seminal fluid.  The area of the rug which tested positive on presumptive testing, was towards the edge of the rug furthest away from the bed.

    Other

17. Stacey Ponting (Ponting) a clinical nurse, undertook a clinical examination of the complainant on 31 July 2019.  The appointment was for a sexually transmitted infection bloodborne virus screen.  She took a clinical history and samples for pathology.  The complainant attended the examination with her mother.  Ponting did not know who requested the screening.  Ponting recorded a history of “Client reports stepdad sexually assaulted her twice in May and June 2019”.  She further recorded, “Declined to provide further details”.[27]  Ponting said the complainant did not want to supply details of the two incidents of sexual assaults.

    [27]AB 193/5.

18. The complainant’s mother gave evidence via video link from overseas.  She commenced a relationship with the appellant in 2008, after meeting him overseas.  Ultimately, a decision was made for the complainant and her mother to move permanently to Australia.  They arrived interstate in 2010.  They moved to Queensland in 2011.  They returned interstate in 2017.  By that stage, the appellant was effectively performing the role of the complainant’s father.

19. In January 2019, they returned to Queensland.  They stayed in a motel between 4 and 11 January 2019.  They spent two or three nights in one room and then moved to another room for about a week.  The second room had a main room with a kitchenette and TV area and a bedroom off that room.  The complainant was in the main room.  The complainant’s mother, the appellant and the complainant’s sister were in the bedroom.  One of the complainant’s friends came to stay when they were staying in the second room, but not every night.  The complainant’s mother said whilst they were in the motel, she was always first to go to bed.

20. The complainant’s mother said when they moved to their residence, the complainant had her own room.  The complainant had a purple coloured rug on her bedroom floor.  It had been purchased for the complainant whilst they were living interstate.  That rug had never been used in any other room.

21. Whilst they were living at the residence, her mother came to visit from overseas.  It was May 2019.  It coincided with the birth of the complainant’s brother.

22. On 30 July 2019, the complainant’s mother was contacted by police.  They told her that the appellant had raped the complainant.  Later, she received further information from the complainant, through a six page letter.  The complainant’s mother had asked the complainant to talk to her.  The complainant said she could not, so she asked the complainant to write it down.  The complainant was good at writing stories.

23. In cross-examination, the complainant’s mother agreed that whilst the complainant was at primary school, she experienced behavioural problems.  The complainant had been suspended whilst attending high school interstate in 2017.  The school arranged counselling.  One of the concerns the school had was that the complainant had made notes about self-harm.  The complainant’s mother said the complainant was being bullied at high school.  She agreed that the complainant would have tantrums at times and she would leave the house and stay with friends.

24. The complainant’s mother accepted that on 17 February 2018, there was an incident between her and the complainant at a shopping centre.  The complainant’s mother had struck the complainant across the face.  The complainant ended up running away.  She asked the appellant to return from an overseas posting as she was at her wits end.

25. The complainant’s mother accepted that after the appellant had been charged, police discussed making a pretext phone call.  She had indicated to police that she would not do a pretext call at the station.  She had discussed with a female police officer that she would go and engage in conversations with the appellant whilst secretly recording him.  She recorded a number of conversations between 5 and 12 August 2019.  They were handed to police.

    Admissions

26. The following admissions were made pursuant to s 644 of the Criminal Code:

    “One, the defendant was born on 13 August 1969.

    Two, the complainant was born [date of birth].

    Three, five sections of the purple rug found in the complainant’s bedroom were sent for DNA analysis. That testing revealed that the defendant’s sperm was located on section 5, which is depicted in the photographs marked 6, 7, 8 and 9 of exhibit 8. The amount of sperm located in the sample was found to be in the low range. The complainant’s DNA derived from epithelial cells was also located in the same area. The defendant’s DNA was not conclusively located on any of the other sections of the rug that were tested.

    Four, the complainant’s DNA was detected on all five sections of the purple rug that were sent for DNA analysis. This DNA was derived from epithelial cells, which originate from a range of sources such as skin cells, saliva or hair follicles. The analysis cannot determine what the originating source of the epithelial cells were.

    Five, the testing cannot establish the age of any DNA detected, that is, when any DNA was deposited there. The testing also cannot establish how any of the DNA came to be deposited on the purple rug.”[28]

    [28]AB 232/37-45, AB 233/1-7.

    Consideration

27. The determination of a ground of appeal that a verdict of the jury was unreasonable, requires the Court of Appeal to undertake an independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied beyond reasonable doubt, of the appellant’s guilt of the offence.

28. Whilst due regard is to be given to the constitutional role of the jury, if that independent assessment satisfies the Court that either by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence, the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt, the verdict of guilty is to be set aside as unreasonable.[29]

    [29]Pell v The Queen (2020) 268 CLR 123 at 145 [39]; Dansie v The Queen (2022) 96 ALJR 728 at [8]–[9]; [12].

29. In the present case, the appellant concedes that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the count of maintaining a sexual relationship.  However, the appellant submits that the jury’s verdict of guilty, of the count of rape, was unreasonable as the jury could not be satisfied of the act of penetration, beyond reasonable doubt.

30. The appellant submits that the complainant recorded in her handwritten note of 30 July 2019, that the appellant “rubbed his unprotected meat stick on my gateway.  That’s what I remember from that one”,[30] which was inconsistent with the appellant’s account to police in her recorded interview on the same day, as to penetration.  That inconsistency was significant as the two accounts were given on the same day.  Further, there was no specific reference, in the interview with police, to that particular offence, despite police asking the complainant if she could remember anything else. The complainant had said it happened at the motel, but only in response to a specific question from police.  Additionally, there was no real complaint of anything having occurred prior to term one in her preliminary complaint, when the events at the motel occurred prior to school commencing that year.

    [30]AB 44/13-14, AB 182/9-10.

31. Whilst those matters may properly be said to give rise to an inconsistency in the complainant’s evidence, that inconsistency was not of a nature that must have caused a jury to reject the complainant’s evidence.

32. First, the verdict of guilty of the other count strongly supports a conclusion that the complainant was inherently reliable and credible in her evidence.  A consideration of the complainant’s evidence as a whole supports the conclusion that it was open to the jury to be satisfied of her reliability and credibility.

33. Second, there was an inherent consistency in the complainant’s account to police, in her preliminary complaint to the Mentor and in her handwritten document to her mother of sexual activity by the appellant, including at the motel.

34. Third, the inconsistency as to “on my gateway” (my emphasis) is explicable having regard to the complainant’s obvious reluctance to tell her mother what had happened with the appellant.

35. When regard is had to those circumstances, it was open to a jury to be satisfied that the inconsistency in her handwritten account did not cause a reasonable doubt in accepting, as reliable and credible, the complainant’s unequivocal evidence that penetration had taken place in the motel on that one occasion.

36. Once the jury was satisfied as to the act of penetration, beyond reasonable doubt, it was open to the jury to be satisfied beyond reasonable doubt that no consent to that penetration had been voluntarily and freely given by the complainant.  The complainant said she had felt frightened and upset and was scared to do anything.

    Conclusion

37. On a consideration of the record as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence of rape.

38. The verdict of the jury on the count of rape was not unreasonable.

    Orders

39. I would order:

    1.   The appeal be dismissed.