R v BNC

Case [2018] QDC 79

DISTRICT COURT OF QUEENSLAND

CITATION:

R v BNC [2018] QDC 79

PARTIES:

R

v

BNC

FILE NO/S:

249/15

DIVISION:

Criminal

PROCEEDING:

Trial – Judge-Alone

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

4 May 2018

DELIVERED AT:

Ipswich

HEARING DATE:

3 and 4 April 2018

JUDGE:

Lynch QC DCJ

ORDER:

1.   The indictment be amended to include in count 1 the words “an unlawful” after the word “maintained”.

2.   In relation to Count 1, the offence of maintaining an unlawful sexual relationship with a child with circumstances of aggravation, I find BNC not guilty.

3.   In relation to Count 2, the offence of indecent treatment of a child under 16, under 12, who was a lineal descendant, and as a guardian, I find BNC not guilty.

4.   In relation to Count 3, the offence of indecent treatment of a child under 16, under 12, who was a lineal descendant, and as a guardian, I find BNC not guilty.

5.   In relation to count 4, the offence of rape, I find BNC not guilty.

6.   In relation to count 6, the offence of rape, I find BNC not guilty.

7.   BNC is formally discharged in respect of all counts.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – MAINTAINING AN UNLAWFUL SEXUAL RELATIONSHIP WITH A CHILD WITH CIRCUMSTANCES OF AGGRAVATION – trial by judge sitting without a jury – where defendant charged with offences allegedly committed upon his daughter – where complaint first made more than 20 years later – whether unfairness occasioned to the defendant by reason of the delay – where express denials of any offending by complainant in interim – where second daughter belatedly claimed to have been present for some offending

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – INDECENT TREATMENT OF A CHILD UNDER 16, UNDER 12, LINEAL DESCENDANT, AS A GUARDIAN – trial by judge sitting without a jury – whether evidence of complaint and sister credible and reliable – whether evidence of sister provides sound basis to accept evidence of complainant –  where no other evidence to establish offences – where offences not proved beyond reasonable doubt – where sister previously complained of offences committed upon her by the defendant not involving the complainant – where complainant aware of sister’s complaint and expressly denied any offending upon her by the defendant – where circumstances leading to complaint cause doubt as to its reliability

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – RAPE – trial by judge sitting without a jury – where significant inconsistencies in complainant’s account – where complainant previously complained about sexual abuse committed upon her by another person  

Legislation

Criminal Code Act 1899 (Qld) ss 210, 229B, 347, 572

Cases

KBT v The Queen (1997) 191 CLR 417

Longman v The Queen (1989) 168 CLR 79

R v MBX [2013] QCA 214

COUNSEL:

N. Needham for the Crown

S. Kissick for the Defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown

RJ Cutler for the Defendant

Proceedings

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Details
AGLC
R v BNC [2018] QDC 79
Case
[2018] QDC 79
Decision Date

CaseChat Overview and Summary

In the case of R v BNC, the defendant was charged with multiple sexual offences against his daughter. The court was required to determine whether the charges were proven beyond reasonable doubt. The complainant, ML, alleged that the defendant had sexually abused her between the ages of 7 and 9, including having sexual intercourse with her at least twice and possibly on more occasions. The complainant also alleged that the defendant had both her and her sister straddle his face and attempt to urinate in his mouth. The defence argued that the evidence was unreliable, and that the significant delay between the commission of the alleged offences and the reporting of them to police should be taken into account. The court found that the evidence of the complainant and her sister was not credible and reliable, and that the offences were not proven beyond reasonable doubt. The court also noted that the complainant had previously complained about sexual abuse committed upon her by another person and had inconsistencies in her account.

The court found that the acts identified as being the basis of each of the charges had not been proved beyond reasonable doubt to have occurred. The court accepted that the delay in reporting the allegations was commonplace but found that the circumstances of ML making her complaint were relevant. The evidence showed ML complained to her mother and sister in 2014 after experiencing a panic attack when watching news of the verdict in the Daniel Morcombe case. The court found that ML’s memories of the abuse only surfaced at the time she saw the television program and that her statements to counsellors and police suggested these “memories” were not genuine. The court also found that ML had expressly denied any offending by the defendant when spoken to by a guidance officer and an officer from the Department of Communities in 2002. The court found that the evidence of the complainant and her sister was not credible and reliable, and that the offences were not proven beyond reasonable doubt.

The court found the defendant not guilty on all counts and formally discharged him in respect of all counts. The court also ordered the indictment to be amended to include in count 1 the words “an unlawful” after the word “maintained”.

Orders

Orders of the court

1. The indictment be amended to include in count 1 the words “an unlawful” after the word “maintained”.

2. In relation to Count 1, the offence of maintaining an unlawful sexual relationship with a child with circumstances of aggravation, I find BNC not guilty.

3. In relation to Count 2, the offence of indecent treatment of a child under 16, under 12, who was a lineal descendant, and as a guardian, I find BNC not guilty.

4. In relation to Count 3, the offence of indecent treatment of a child under 16, under 12, who was a lineal descendant, and as a guardian, I find BNC not guilty.

5. In relation to count 4, the offence of rape, I find BNC not guilty.

6. In relation to count 6, the offence of rape, I find BNC not guilty.

7. BNC is formally discharged in respect of all counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is necessary to set out the evidence in some detail. EvidenceML ML said she lived at Mount Tarampa from when she was aged about 4 years until she was about 14 years. She lived there with her father, mother and sister.[4] [4] T 1-10 line 45 – 1-11 line10. ML said her father sexually abused her between ages 7 and 9.[5] She said this included him having her masturbate him, his having sexual intercourse with her at least twice and possibly on more occasions, his having ML and RG remove their pants and play a chasing game on the bed, and on one occasion having ML and RG both straddle his face and attempt to urinate in his mouth. [5] T 1-11 lines 24, 37-38; 1-18 lines 17-24; 1-20 line 34 – 1-21 line 38. ML described the event relied upon as count 4. She said this involved sexual intercourse. She said she was aged 8 and it occurred in her parents’ bedroom. She said she was lying on her back with her father on top of her. She said he was inside her and thrusting in and out which caused her pain, and he withdrew and “came” on the bedspread.[6] She said on this occasion her sister was in the bedroom but “managed to run out just before it happened”.[7] She said she was in grade 3 at this time.[8] She said she did not tell anyone what had actually happened but did complain to her mother a couple of days later that she had a sore private part. She said her mother took her to the doctor as a result.[9] [6] T 1-12 line 4 – T 1-13 line 21; 1-21 lines 5-6, 21-22.[7] T 1-12 lines 45-46.[8] T 1-13 lines 8-9.[9] T 1-13 lines 23-25. ML described another similar occasion which is relied upon as count 6. She said this event occurred just before she turned 9, also in her parents’ bedroom. She said on this occasion she recalled later going to the toilet and seeing “white stuff” in her pants.[10] [10] T 1-13 line 33 – 1-14 line 29; 1-15 lines 21-29; 1-21 lines 24-25. ML also described an occasion when her father had both ML and RG straddle his face and attempt to urinate in his mouth. This incident is relied upon as counts 2 and 3. She said she was aged 7 and in grade 3 when this occurred. She said her father was lying on his bed on his back. She said her sister RG, who had clothing on her top but no pants on, first straddled his face. ML said RG was facing towards her father’s feet and ML was then standing next to the bed. She said RG was unable to urinate, so her father asked her to try. ML said she then straddled her father’s face in the same position but was also unable to urinate.[11] She said this was the only occasion her father asked her to urinate on him.[12][11] T 1-15 line 34 – 1-18 line 8.[12] T 1-18 lines 10-15. ML also described other sexual activity. This activity, together with the specific allegations set out above, are the basis of count 1. ML said there were some incidents where her father would lie on the bed with his legs over the side and have her masturbate him to ejaculation. She said this occurred roughly once per month between ages 7 and 9.[13] She said she believed there were more than two acts of sexual intercourse but could not remember how many or any further detail of them.[14] ML said the activity first started when her father asked her and RG if they wanted to play a game and took them into his bedroom and removed their pants. She said this led to a “chasey” game on the bed. She said the activity eventually led to sexual things like “rubbing him until he ejaculated”. She said sometimes things happened with both her and her sister present and other times just with ML on her own.[15] She said the activity commenced when she was aged 7 and stopped when she was aged 9.[16] [13] T 1-11 lines 32-41. [14] T 1-13 lines 27-31; 1-15 lines 21-29.[15] T 1-14 line 31 – 1-15 line 19.[16] T 1-18 line 24; 1-20 line 34 – 1-21 line 38.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In this case the prosecution concedes that I should have regard to the significant delay between the commission of the alleged offences and the reporting of them to police, consistent with the decision in Longman v The Queen.[75] That decision identifies the need to recognise the unfairness occasioned to the defendant by reason of his reduced opportunity to adequately test or meet the allegations because of the passage of time.[76] In this case the offences are alleged to have been committed between 1992 and 1994, and the evidence shows the offences were reported to police in 2014. Hence the relevant delay is a period of twenty years.[75] (1989) 168 CLR 79.[76] R v MBX [2013] QCA 214; per Applegarth J at [105]. Consideration The real issue in consideration of this case is whether the acts identified as being the basis of each of the charges has been proved beyond reasonable doubt to have occurred. The thrust of the defence submissions was to the effect that the evidence, viewed in total, exposed such unreliability in the accounts of ML and RG, that it was not open to conclude beyond reasonable doubt the defendant had committed any of the offences. It is not submitted by the prosecution that any evidence, independent of ML, is capable of proving any of counts 1, 4 or 6. The prosecution however argue that RG’s evidence is capable of proving counts 2 and 3, independent of ML’s evidence. The focus therefore is upon the credibility and reliability of the accounts of ML and RG. Fundamental to that assessment is the delay in reporting the allegations. I accept current experience identifies that delay in reporting of child sex offences is common place. However, in this case, a number of circumstances are relevant to this consideration. Firstly, it is accepted by ML she did not complain of this offending even though she knew her sister complained of her own sexual abuse by the defendant. ML accepted she was asked by her mother, at the time of her sister’s complaint in 2000, whether the defendant had abused her. She then said he had not. In the passage set out above at [16], ML twice said, in effect, this statement to her mother was the truth. In addition, ML continued to deny any offending against her when interviewed, even after her father had been imprisoned for offences against RG. She specifically denied her father had done anything to her when separately spoken to in 2002 by a guidance officer and an officer from the Department of Communities. She maintained she then felt safe and admitted it was her own choice to continue to live with the defendant. Also, in the period after her parents’ separation, but prior to RG’s complaint, ML did complain to her father of sexual abuse of her by someone else. She said her father reported that to police and she was interviewed, not in her father’s presence, but did not complain about sexual abuse by him. The circumstances of ML making her complaint are also relevant. The evidence shows ML complained to her mother and sister in 2014 after experiencing a panic attack when watching news of the verdict in the Daniel Morcombe case. Although ML maintained in evidence she has always remembered her father’s abuse of her, statements she made to counsellors and police suggest these “memories” only surfaced at the time she saw the television program. In particular, ML variously described her memories as “dreams”, said they were “unreal” or “vague”, said she had a “blackout” and then realised her father was on top of her, and said she had a “revelation” after seeing the television story. She admitted the therapy she had undergone had taken her from being uncertain whether these dreams were real to certainty they were genuine memories.