R v PBN
[2024] QCA 216
•12 November 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v PBN [2024] QCA 216
PARTIES:
R
v
PBN
(appellant)FILE NO/S:
CA No 32 of 2023
DC No 2249 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 10 February 2023 (Byrne KC DCJ)
DELIVERED ON:
12 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
27 August 2024
JUDGES:
Flanagan and Boddice JJA and Kelly J
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of three counts of indecent treatment of a child under 16, under care and of the three counts of attempted rape – where the appellant was found not guilty of one count of rape and of the two counts of indecent treatment of a child under 16, under 12, under care – where, at trial, the Crown led evidence of text messages between the complainant and her mother, the complainant and the appellant and the appellant and the complainant’s mother – where the appellant sent a text message to the complainant’s mother that “Stuff has happened” and he had put his “hand down her pants” in reference the complainant’s disclosure – whether it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, citedCOUNSEL:
The appellant appeared on his own behalf
D Kovac for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
FLANAGAN JA: I agree with Boddice JA.
BODDICE JA: On 2 November 2021, an indictment was presented charging the appellant with one count of rape, two counts of indecent treatment of a child under 16, under 12, under care, three counts of indecent treatment of a child under 16, under care and three counts of attempted rape. All were domestic violence offences.
On 10 February 2023, after a five day trial, a jury found the appellant guilty of the three counts of indecent treatment of a child under 16, under care and of the three counts of attempted rape. The jury found the appellant not guilty of the one count of rape and of the two counts of indecent treatment of a child under 16, under 12, under care.
The appellant appeals his convictions. The sole ground is that the convictions were “unsafe and unsatisfactory having regard to the whole of the evidence”.
Indictment
The count of rape (count 1) and the two counts of indecent treatment of a child under 16, under 12, under care (counts 2 and 3) were alleged to have been committed on a date unknown between 4 December 2011 and 6 December 2013. The three counts of indecent treatment of a child under 16, under care (counts 4, 5, and 7) and the three counts of attempted rape (counts 6, 8 and 9) were all alleged to have been committed on a date unknown between 30 December 2019 and 13 January 2020.
All counts on the indictment concern the same female complainant. She was between six and eight years of age at the time of the alleged commission of counts 1, 2 and 3 and aged 14 years at the time of the commission of counts 4, 5, 6, 7, 8 and 9.
The appellant was the de-facto partner of the complainant’s mother. They commenced a relationship in late 2011. The appellant resided with the complainant’s mother, the complainant and her siblings between 2012 and mid 2020.
Count 1 was particularised as the appellant inserting his penis into the complainant’s mouth without her consent. Count 2 was particularised as masturbating in the complainant’s presence whilst she was under 12 years of age and under his care. Count 3 was particularised as licking the complainant’s vagina whilst she was under 12 years of age and under his care.
Count 4 was particularised as the appellant having touched the complainant’s vagina when the complainant was under 12 years of age and under his care. Count 5 was particularised as the appellant having touched the complainant’s breast and/or breasts whilst the complainant was under 12 years of age and under his care. Count 7 was particularised as the appellant having touched the complainant’s breast and/or breasts whilst the complainant was under 16 and under his care.
Counts 6 and 8 were each particularised as the appellant attempting to insert his finger and/or fingers into the complainant’s vagina without her consent. Count 9 was particularised as the appellant attempting to insert his penis into the complainant’s vagina without her consent.
Trial
At trial, formal admissions were made as to the complainant’s date of birth; the addresses of various residential properties and the dates of habitancy of those properties and the dates of locations attended by the complainant and the appellant relevant to the dates charged on the indictment.
The Crown called six witnesses and led evidence of text messages between the complainant and her mother, the complainant and the appellant and the appellant and the complainant’s mother.
At the close of the Crown case, the appellant elected to give evidence and to call the complainant’s mother to give evidence.
Evidence
Complainant
The complainant spoke to police on 27 July 2020. That conversation was recorded and played to the jury. In that conversation, the complainant described the appellant as a bit creepy because he used to come into her room at night. He stopped doing so once she told her mother about it. The complainant said he treated her siblings unfairly. He treated her like a princess and would yell at her brother.
The complainant told police the appellant first touched her in 2012. At that time, her mother worked night shifts. The appellant looked after them. Once, when she was six or seven, the appellant carried her into the bedroom, put on a movie really loudly so she would wake up and started touching her. He asked her if she could suck his penis. The appellant told her “it’s just like sucking a lollipop”. The complainant said she put his penis in her mouth (Count 1). After a while he pulled her up and said he was “about to cum”. He then sat back on the bed and moved his hand up and down on the penis (Count 2). After he ejaculated, he picked the complainant up and put her on his chest and put his mouth on her vagina (Count 3). The complainant said she laughed because it tickled. The complainant said she started squirming and trying to move away, but he held her down in place. After a while the appellant said, “you’re done now” and told her to go to bed. The complainant said she had not told anyone about these events. They had just “been like, my little secret”.[1]
[1]AB 451/30.
The complainant told police around 2 January 2020, when they were at the appellant’s nephew’s house in [northern regional Queensland], she woke up to find the appellant touching her. She pushed him away and told him to stop, but he kept coming back. She slept on the floor and he left her alone. On another night the same thing happened, but the appellant tried to put his “thing in me”.
The complainant said the appellant was touching and rubbing her in places he should not be, on her boobs and her vagina. He would grab them, rub them and put his mouth on them. He would slide his hand over her breast under his clothing and his other hand was touching her vagina. He tried sticking his fingers into her vagina, but she pushed his hand away. He was rubbing her vagina up and down, under her clothing.
The complainant said the appellant, her mother, her brother and the complainant arrived at [northern regional Queensland] on 31 December 2019. Her mother and brother went home on 4 January 2020. The complainant and the appellant stayed for another week as the appellant was tiling his nephew’s house. The appellant and the complainant left on 12 January 2020. They initially stayed at the first nephew’s place. They arrived at the second nephew’s house on 10 January 2020.
The complainant said the first occasion the appellant touched her at [northern regional Queensland] was at the first nephew’s house. It was the night her mother returned home. On this occasion, the appellant rubbed her breasts and vagina and tried to put his fingers in her vagina. It happened after they had dropped her mother off at the airport. When they were at the second nephew’s house, the appellant tried to put his penis in her vagina. She was wearing shorts that were loose. He could pull the middle of her shorts to the side. The appellant realised his penis would not fit and started trying to finger her. The complainant said it was hurting and she pushed him. He did not put his finger inside her vagina that time. The complainant said she grabbed her phone and started messaging her friend.
The complainant said at the second nephew’s house she was playing a drinking game with the appellant and the second nephew’s partner, she went to bed when she started falling asleep on the chairs. The appellant came in later and did not do anything that night, he fell asleep. The next night they started the same drinking game. It was that night that the appellant touched her. On this occasion, the appellant came into the room, he hugged her and started touching her breasts. She pushed him away. Later, the complainant woke up to find the appellant on top of her, trying to put his penis inside her. She had loose pants on and he could move the middle to the side. She stuck her legs together.
Later, the complainant told police she was wearing an oversized t-shirt and very loose overalls in bed. She could not be bothered changing into pyjamas. The overalls were denim with rips in them. When the appellant tried to put his penis in her vagina, he was holding down her right leg, trying to spread her legs to gain access. She said, “stop … I don’t want you doing this”. He tried to keep going, so she pushed him. She then rolled over and shut her legs together and held the blanket tight to her.
The complainant said she told her mother about what happened at [northern regional Queensland] via messages at the start of term one 2020. That text message exchange was in the following terms:
“COMPLAINANT: touching me. He did it while we were staying up north
MOTHER: Like how
COMPLAINANT: Places that shouldn’t be touched by a forty something year old man
He thinks im asleep when he does it
MOTHER: Where. You will need to tell me exactly what and the whole truth
Nothing more?
COMPLAINANT: He’ll come in and ill be asleep so hell lay on my bed and start touching my bum and hell pull me till I’m laying on my back and will start touching my vagina and boobs. I’ll wake up but because I’m asleep I cant tell him anything. I’ve woken up and told him to stop and get out once when Mac and Tonio where her and Tonio heard me tell him to get out. hes been doing this since u got mad at him for showing me porn
MOTHER: When was that
COMPLAINANT: Thats the whole truth. What bit
My shift key doesn’t work so I cant put a question mark
MOTHER: When did I get angry at him
What made you tell me now?
Why do you go everywhere with him
COMPLAINANT: When we lived at oakmoss. I’m less scared now…I don’t know
MOTHER: So years and years”
The complainant said she was having a mental breakdown, so she told her mother. The complainant’s mother asked if it was true or not. The complainant said she replied, “I wouldn’t lie about something like this. … it’s serious.”[2] The complainant’s mother said, “Go to bed, I’ll speak to you tomorrow.” That night she awoke to find the appellant in her room trying to take her phone. He asked why she did it. The complainant said she told the appellant she was not lying to her mother about anything. The appellant left the room saying, “I’m going to work”.
[2]AB 416/33-24.
The complainant said she told one of her friends what had happened the Friday before she spoke to police. She told her friend because she had been in an argument with her mother and the appellant all week. She told her friend that the appellant came into her room and touched her boobs and vagina. The friend said it was not okay and asked if she had told her mother. The complainant said she had told her mother and her mother had told her that she would talk to the appellant. The complainant said it looked like her mother was not doing anything, so she told her friend that the mother did nothing.
The complainant said her friend said she needed to tell someone that would actually do something about it. The complainant said she did not want to as her mother was happy and that was one thing she cared about. The friend said that she needed to care for herself. The complainant said her friend made her tell the school counsellor. The complainant told the counsellor about the appellant touching her, but did not go into much detail. The counsellor did not want that much detail.
On 28 September 2022, the complainant gave evidence. This evidence was pre-recorded and played to the jury.
In evidence in chief, the complainant said that she did not consent to any of the sexual things involving her genitals and the appellant.
In cross-examination, the complainant accepted that the appellant had: moved into their home after forming a relationship with their mother; remained living there until the middle of 2020; and had a good relationship with her when growing up. The complainant also accepted that she had had little to do with her biological father. She did talk to him occasionally. She missed him sometimes.
The complainant accepted that the appellant would pick her up from school, bring food to school, take her places and give her pocket money for helping him with his work as a tiler. She also accepted that she suffered from eczema and the appellant would help put cream on her arms, back and backs of her legs. The appellant also helped coach her sports team. She would travel with him in his car to and from training and games. She did not mind spending time with the appellant.
The complainant accepted that in the first half of 2020, the appellant and the complainant would text each other during the day, about a range of issues. On one occasion, the appellant had sent her a text message saying “need a prostitute”, in response to her message asking him where he was going. She had replied saying, “make sure to give her lots of money”. She had also sent a text message on 30 July 2020, asking the appellant to put $20 on her card. When he replied he did not have the money to give her, she had texted “Go be a stripper. You’ll earn heaps.” The complainant accepted that they texted each other, sometimes a few dozen messages a day.
The complainant accepted that she would sometimes find the appellant a bit overbearing and would get frustrated with him. On one occasion the appellant stepped in between a few people having an argument out the front of the school. She knew the people involved. She found it embarrassing. That was the same day she spoke to her friend. When she spoke with her friend, the complainant was quite upset with the appellant. She told her friend that she was sick of him and that she was also annoyed at her mother. She agreed she was tearful that morning.
The complainant accepted there were times when the appellant caught her sneaking out of the home to see her friends. The appellant had told her that she needed to change her behaviour or he would speak to her mother. Both the appellant and her mother were concerned about the complainant. They had spoken to her about what she had said to people in Snapchats and texts; and about the fact that she had snuck away from home to meet up with a boy. They were concerned that she was sexually active. They once asked whether she had sent nude photos of herself to anyone online. At one point she had gone to see the school guidance counsellor with her mother and the appellant, about the complainant sneaking out at night.
The complainant accepted that the text message exchange with her mother on 22 January 2020 was the first time she complained to her mother about the appellant. Her mother asked her to explain in more detail. She did not tell her mother anything more than what she had said in the messages. After those text messages, her mother booked her in to see a psychologist. Her reference to mental breakdowns in that conversation, was a reference to a lot of mental health issues. She was having a lot of outbursts. They were mainly verbal, although sometimes she was hitting walls. She was quick to anger.
The complainant accepted that the account she gave her mother in the text messages, was less than a month after she had returned from [northern regional Queensland]. She accepted that in that text conversation with her mother she had said that the appellant was “touching me” while they were staying up north; that he was touching her in “Places that shouldn’t be touched by a forty something year old man. He thinks im asleep when he does it”; and that “He’ll come in and ill be asleep so hell lay on my bed and start touching my bum and hell pull me till I’m laying on my back and will start touching my vagina and boobs.” She also accepted that in those text message exchanges, she had told her mother that “Tonio heard her tell him to get out”. Tonio was her sister’s boyfriend. The complainant accepted that when she spoke to police, she never mentioned a person named Tonio. Tonio was not in [northern regional Queensland].
The complainant accepted that when she spoke to police at the school, she had become confused about the order of things. She got times confused between the first and second nephew’s houses. She accepted she did not say anything about the appellant doing anything with his penis or mouth when they were staying at the first nephew’s house. She agreed that when she was talking at the start of the interview, she was speaking about the second nephew’s house.
The complainant accepted that when they were staying at the first nephew’s house, her brother’s bed was next to her bed. There was a gap which allowed two people to walk beside each other. The door to the bedroom was open all night. She agreed that the incident at the first nephew’s house happened on the night of New Year’s Day and that she had all of the next two days, before her mother and brother flew home. At no time during those days did she tell her mother that she wanted to fly home with them.
The complainant accepted it was her choice to stay in [northern regional Queensland]. The complainant wanted to help tile the house. She knew, before her mother left, that they would all be staying in a shed, at the second nephew’s house. She only was told she would be sharing a bed with the appellant when she got to the second nephew’s house. The complainant never said to her mother or anyone else that she did not want to do so. The complainant said she did not think the appellant would do it, with three other people right next door.
The complainant said that the appellant touched her on the first and second nights at the second nephew’s house. She ended up staying at the second nephew’s house for about seven or eight nights. She did not ask to come home early. They had already booked tickets. The complainant accepted that when she was speaking to police about what had happened at the second nephew’s house, she was talking about one night only. The overalls she was wearing on the night the appellant touched her were connected down around her thighs. She agreed she had initially told police she was wearing shorts. She considered overalls to be shorts. She denied that the appellant would not be able to pull the middle of the overalls to the side. They were loose.
The complainant accepted that when she spoke to police, she was not fully sure about what had happened at the nephew’s house. She accepted that when she spoke to the school guidance counsellor, she never said anything about the appellant trying to put his penis into her vagina. The complainant said she did not go into much detail. She also accepted that when she texted her mother in January 2020, she did not say anything about the appellant trying to put his penis into her vagina.
The complainant denied that the only skin-on-skin contact or touching between her and the appellant was one night at the second nephew’s house when the appellant rolled over and his hand slipped under her shorts, but over her undies, at which point she had grabbed his hand and threw it away. She denied that she had added things to her allegations because she was angry with the appellant and wanted to hurt him.
The complainant accepted that when she sent the text messages to her mother in January 2020, she was in trouble; that when she told her friend that the appellant had touched her and might have raped her, she was upset with the appellant; that when her friend said she was going to take her to the counsellor, she had said “No. Don’t do that.”[3]; that the friend had said if she did not go to the counsellor, the friend would go to the counsellor; that she pleaded with the friend not to go to the counsellor; and that when she went to see the counsellor, she was reluctant to tell her anything about the appellant. She denied that she pleaded with the friend because it was not true that the appellant had tried to rape her. She accepted that some months later she had said to her friend, “No, I don’t think he raped me.”
[3]AB 668/12.
The complainant said when she first complained to her mother in the text messages, she thought her mother would deal with it and get the appellant out of the house. That did not happen, so she escalated it to her friend, who escalated it to the counsellor. She denied it was something of a pay back. The complainant said it was “getting very heavy on my shoulders to keep it a secret from people”.[4] She denied that when she spoke to police, she thought she could not change the story.
[4]AB 215/13-14.
The complainant agreed that when she spoke to police she said she knew that people have lied about this sort of thing. The complainant had watched documentaries. True crime interests her. The complainant accepted she sometimes lied about things. She agreed that she would lie when it was in her interests to lie. The complainant accepted that she told police that when she was first touched by the appellant, when she was much younger, they were watching the movie Ted on DVD. She denied that there was no television or DVD player in her mother’s bedroom in that house.
The complainant agreed that in one of the text message exchanges with the appellant, the appellant had sent a message about a song titled “I Sucked a Lot of Cock to Get Where I Am”, with a follow-up message, “That’s your other option.” That exchange on 27 May 2020, was in the following terms:
“COMPLAINANT: imma ask
APPELLANT: Muhammed Ali is the greatest. He is Mike Tyson’s idol.
COMPLAINANT: i asked her
now i just gotta wait for an answer
APPELLANT: Will Smith played him in a movie about his life.
COMPLAINANT: it’s Muhammed
APPELLANT: I happen to know an air brush artist that could do that onto shoes. That’s all they’re doing with the ones you showed me.
COMPLAINANT: yeh i think so
APPELLANT: But like Twinkie says. “Hans labour ain’t cheap! You hearin me dawg”
COMPLAINANT: yes ik
and i’ll pay for them to be done by your friend if i have too
APPELLANT: You’ll
Need to come to
Work then won’t you. Lol
And work.
COMPLAINANT: that way you won’t have to
yeh ik
APPELLANT: (Attachment) music.apple.com/au/album/i-sucked-a-lot-of-cock-to-get-where-i-am
That’s your other option. Hahahaha
COMPLAINANT: gross
APPELLANT: (another music download attachment)”
The complainant accepted that those text messages were sent in the context of needing money. She did not find it appropriate for the appellant to send that song “and then be like, or you can do this”. She agreed, however, that it was not a request for her to perform oral sex. She denied that she wanted the appellant to be out of the way so that her mother and father could get back together.
In re-examination, the complainant said she interpreted the text message, “That’s your other option” as either she could go to work with him and tile and earn money that way, or she could suck his penis. The complainant accepted that in her text messages with her mother in January 2020, she had said “Tony overheard me tell him to get out. He’s been doing this since you got mad at him for showing you porn”. The complainant had not described that to police. That happened when she was aged between seven and 10 years. The complainant said she waited to tell anyone because the appellant was her mother’s first relationship where she was happy. She preferred her mother to be happy. However, it got to the point where she could not do it anymore. That was why she told her mother.
Preliminary complaint
A guidance counsellor at the complainant’s school was approached by the complainant and her friend, on 27 July 2020. The complainant first spoke about her mother’s boyfriend “doing some embarrassing things” around showing up at the school and approaching a former student in the car park. He had also been her soccer coach briefly and had sent her team off the field. The friend wanted the complainant to talk about sexual assaults. The complainant expressed awkwardness. The guidance counsellor asked her to show what had happened, using a two and a half foot high stuffed Tigger from Winnie the Pooh. The complainant indicated that her mother’s boyfriend had touched her, indicating the breast area and between the legs on Tigger. The guidance counsellor asked if it was inside or outside of her clothing and whether it was inside or outside of her body. She said “both”. The complainant did not provide any more detail. She did not tell the guidance counsellor the full name of her mother’s boyfriend. The guidance counsellor recorded the disclosure in the school computer system. She brought that document to the principal’s attention. Police were then contacted by the school.
In cross-examination, the guidance counsellor said she had been working as a guidance counsellor for approximately 15 years. She had first met the complainant approximately two years prior to 27 July 2020. She had also met the complainant’s mother and biological father and mother’s boyfriend, the appellant. The guidance counsellor accepted that when the complainant and her friend came to see her, the friend was quite insistent that the complainant speak and the complainant was uncomfortable. The complainant kept deferring to what the friend suggested be spoken about by the complainant. The friend first mentioned sexual assault.
The friend spoke to police on 16 November 2020. That conversation was recorded and played to the jury. The friend said about four or five months ago, the complainant had come to school really upset. She was in tears. Later at lunch, the complainant spoke about the appellant having embarrassed her by shaking a boy outside the school, that morning. The complainant said that she hated the appellant. He had been doing this stuff for ages and she was sick of it. The friend asked what sort of stuff. The complainant replied he had been doing stuff to the complainant in the night, touching her body. The friend told the complainant she needed to go see the counsellor. The complainant argued, but the friend persuaded her. They went to speak to the counsellor the next school day.
The friend said that she had once seen the appellant drop food off to the complainant and “the way that he was like touching her, and hugging her, for a fourteen year old girl, like he just seemed to get really feely and stuff, and yeah, it wasn’t nice to watch”.[5] The complainant had said, as she was walking to get her food, “you watch, he’ll give me a big hug, and kiss”.[6] As the complainant grabbed the food and turned to come back, the appellant grabbed her into a hug and gave her a kiss. It was massive, long hug and kiss on the head.
[5]AB 462/31-33.
[6]AB 466/50.
The friend said that after the appellant found out that the complainant had told her friend what he had done, the appellant had come into the complainant’s room and demanded her phone. He said, “How dare you tell anyone. This could wreck up my entire life.”[7] After that, the appellant moved out of the house, but the complainant’s mother was not supporting the complainant. The mother was angry at the complainant for kicking the appellant out of the house. The friend said the complainant had spoken to her mother, maybe a year before. Her mother pushed her away and did not listen.
[7]AB 365/41-42.
The friend said the complainant told her it had been going on since a year after the appellant moved into their house. Whenever the appellant came into the room at night, he would hug her, touch her chest and in between her legs. The complainant also told the friend that he had fingered her. The complainant said she thought he raped her. The complainant said she was a light sleeper and could feel everything when she sleeps. A couple of days later, the complainant said “no, I don't think he raped me”[8]. The friend said you can tell when the complainant is lying, but that if you are a close friend she does not often lie and she will not go back on the truth.
[8]AB 373/13.
The friend told police a few days before speaking to police, the complainant was talking to her about everything again. During that conversation, the complainant said she did not think the appellant raped her. The friend said the complainant rarely lied about anything, but when she did, it was clear because she would start laughing, or she would not look you in the eye. The friend was able to tell that the complainant was lying when she said that he did not rape her because the complainant looked down at the ground.
The friend gave evidence on 28 September 2022. That evidence was recorded and played to the jury.
The friend accepted that before going to the counsellor, the complainant was not sure whether she had been raped by the appellant. Further, some months later, the complainant, without prompting, said to the friend that she did not think that the appellant raped her. The friend asked the complainant why she felt that way. The complainant said, “it didn’t feel like it was – it was, like, it was something other than his fingers”.[9] The friend did not agree that the complainant said she thought she might have been mistaken about what she had told her. She did not say it did not happen. The friend accepted that the complainant was more leaning towards it did not happen at that time.
[9]AB 168/24.
The friend agreed that when the complainant spoke to her that morning at school, she said she hated the appellant. The complainant had previously said she hated the appellant. At that time, she did not say why she hated the appellant. The complainant was also having difficulties with her mother. She did not say why she was upset with her mother. The friend accepted she had described the appellant as being creepy. That was her impression both before and after the complainant told her about what he had done. She had seen the appellant once or twice at the school. She considered him to be overly affectionate to the complainant. He would touch her in a way that a father would not touch their daughter. The appellant would give the complainant a hug from behind, forcing himself onto her when she was clearly uncomfortable. He pressed himself against the complainant’s back, rubbing his hands up and down her body and kissing her head.
Nephew
The first nephew gave evidence that the appellant, the complainant’s mother and the complainant and her brother visited him around New Years Eve 2019. At that time he was living in the [northern regional Queensland] area. They stayed at his house for around a week. The appellant and the complainant’s mother stayed in one room, the siblings stayed in another spare room with two single beds. Whilst they were in the [northern regional Queensland] area, the appellant travelled to do work on the first nephew’s brother’s house.
In cross-examination, the first nephew accepted that this visit was the first time he had met the complainant’s mother and her children. They stayed at the house until 4 January 2020, when the complainant’s mother and brother flew home. The appellant and the complainant remained at his house for a few more days. He did not observe any change in behaviour whilst they were staying at the house.
Police
Nathan Cockerill (Cockerill) gave evidence that he attended the complainant’s school with another police officer on 31 July 2020, after police received information in relation to some disclosures by the complainant. During their conversation with the complainant, the complainant provided him with her mobile phone for the purposes of downloading its contents. Later that same day, Cockerill spoke to the appellant. He seized his mobile phone. An attempt that day to download its contents was unsuccessful. A later forensic examination produced some files, including a text message exchange on 23 January 2020, with the complainant’s mother.
That exchange was in the following terms:
“MOTHER: Did you go to work
APPELLANT: I’ve not mollested [the complainant]. Of that I’m 100% certain. Stuff has happened but not like she has said. I did have my hand down her pants when we were up north. That part is true. I was drunk and she woke me up and told me to Move my hand. It doesn’t make it right and it did happen.
No I couldn’t work. I can’t think about anything at the moment.
MOTHER: Ok
APPELLANT: The fact that she has said it is enough for me to look guilty of doing it. She has been my shadow for years and I have been doing into her room for the last couple of them at night when she can’t sleep. She asks me to draw circles on her with my fingers to put her to sleep. You’ve even seen me doing it. Everyone has. She has been asking me almost every other night lately. (even last night) That has to say something. There has been some stuff going on between [the complainant] and I. But not what she has said. It’s true that I had my hand down her pants when we were up north. I got drunk and [the complainant] woke me up and told me to move my hand. That’s one time that I know I did the wrong thing. I was drunk and asleep at the time. Not the it justifies it. I’ve smacked her on the bum almost daily but it’s not sexually. It’s messing around. She gives me nipple cripples often too. I pretend that I’m going to give her them back too but I don’t actually touch her boobs. I kiss her on her forehead often. I cuddle her often. I also hug and kiss [sibling] every night.
MOTHER: I will talk to her today and see here it has come from”
Later on 31 July 2020, Cockerill provided the complainant’s mother with an update of the investigation. She declined to provide a statement. Cockerill also contacted the appellant’s second nephew and his partner. Both declined to provide formal statements. The complainant’s mother also advised that she did not wish police to interview the complainant’s brother.
Appellant
The appellant gave evidence that he had been in a relationship with the complainant’s mother until he was arrested and charged with these offences on 31 July 2020. He has not had any contact with the complainant’s mother since that day. Whilst living with her, he assumed the role of step-father. He would assist in getting the children ready for school, look after them when the mother was away working, make meals and take them to sport. When he moved into the house in 2012, there were four children in the household. The appellant said he developed a very good relationship with the children.
The appellant said in late 2019, early 2020, he visited family in [northern regional Queensland]. In the six months after returning from that trip, his relationship with the complainant became more strained. He trusted her a lot less from the end of January 2020, because of her behaviour. The complainant was sneaking out of the house, stealing alcohol, meeting up with boys in parks at night and sending photos of herself to people on social media. The appellant spoke to the complainant about her behaviour. It became a source of friction between them. He also spoke to the complainant’s mother, but did so on a limited basis because he did not want to be “the person to throw [the complainant] under the bus”.[10] He asked the complainant’s mother to look at the complainant’s phone for herself, to see what was going on. Throughout that six month period, he was working as a self-employed tiler, on a contract basis. The complainant would accompany him to work sites. Often there would just be the two of them on site.
[10]AB 277/44-45.
The appellant said that at [northern regional Queensland] initially he stayed with the first nephew. The complainant and her brother stayed in one bedroom, containing two single beds. The appellant and the complainant’s mother stayed in a room at the far end of the house. It contained a very old style sprung bed. The complainant’s mother and brother flew home on 4 January 2020. The next day, the appellant and the complainant moved to the second nephew’s house. At that house, the complainant and the appellant shared a king size bed, head to toe. He only became aware of that sleeping arrangement when he arrived at the second nephew’s house. The second nephew’s partner stayed in the same area, in a separate bedroom.
The appellant said several weeks after his return from [northern regional Queensland], he became aware that the complainant had made accusations that he had sexually abused her. He had a text message exchange with the complainant’s mother on 23 January 2020. In that exchange he sent a message saying that he had not molested the complainant, of that he was 100 per cent certain. He also said that stuff had happened. The appellant explained, “Stuff being [the complainant] acting out, doing the wrong thing, and by doing the wrong thing I mean she wouldn’t come to work with me up at the house. She would just stay at the house all day. … I didn’t know what [the complainant] was doing to the extent that she was, but I did find out that she had sent a video of herself to somebody over social media.”[11]
[11]AB 281/30-34.
The appellant said the sentence in the text message “I did have my hand down her pants when we were up north”, referred to an incident that occurred on the last night they stayed at [northern regional Queensland]. He had some drinks with the second nephew’s partner. They were both drunk. After going to bed, the appellant was awoken by the complainant, who told him to move his hand. The appellant said he then realised that his hand was “inside her pants, not inside her underpants or anything at that time, and it never was”.[12] His hand had entered her pants on her side, on her hip. The complainant was wearing elastic-type shorts. The appellant said he moved his hand.
[12]AB 282/2.
The appellant said after his text message exchange, he had a very short verbal conversation with the complainant’s mother. He told her it had not happened. It was not pursued any further. The appellant said the night before he had that text message exchange, he had had a “rather large argument” with the complainant. The appellant said, “[The complainant] had her phone, etcetera, removed from her by her mother, and [the complainant] made these claims against me to her mother. Her mother then spoke to [the complainant] and then myself about it. The next morning, I was so distressed. Instead of going to work, I hopped in my car, went for a drive. I drove from Brookwater in Ipswich out past Toowoomba, up the new bypass road, just to clear my head and try and get my wits about me again, because I was really thrown and stunned by what had happened the night before.”[13]
[13]AB 282/16-30.
The appellant said in the days following that drive, life went back to normal, although he never stepped a foot again in the complainant’s bedroom, while she was in that bedroom. Prior to that, he would go into the complainant’s bedroom daily. The complainant would ask him on most evenings to put some cream on her for her eczema. That had continued in 2020.
The appellant said in the early days of his relationship with the complainant’s mother, they lived in a four bedroom residence. He shared a bedroom with the complainant’s mother. The complainant and her brother shared a bedroom. The two older daughters each had their own bedroom. There was no television or DVD player in the bedroom he shared with the complainant’s mother. It was impossible for him to have watched the movie Ted with the complainant, in that room.
The appellant accepted that he had hugged the complainant at the front of the school. He hugged the complainant daily, as he did the other children. He denied he was overly feely towards the complainant. He would kiss her on the top of her head. There was nothing unusual about that kissing. He did the same for the complainant’s younger brother. He also gave the brother a hug.
The appellant said that he had a physical uniqueness; his penis had a raised scar, from one end to the other and down around his scrotum, from surgery he received shortly after birth, to separate his penis from his scrotum. The scar is darker in colour and slightly raised.
The appellant accepted he had sent a text message to the complainant, referring to a song “I Sucked a Lot of Cock to Get Where I Am”. It was not unusual for them to send lyrics or songs. It was a joke. The message before said, “Come to work, earn the money if you want the money for the shoes.” The appellant said he had never touched the complainant on her breasts or vagina, and he had never shown the complainant pornography at any time.
In cross-examination, the appellant said that his relationship with the complainant was no different to her siblings. He agreed that the complainant would often accompany him to job sites. It was a good bonding activity. She enjoyed working with him. The appellant did not accept that it was inappropriate for him, as a step-father, to send a text message to the complainant, referring to “sucking a lot of cock”. It was not unusual for the complainant to send him something which would be deemed as inappropriate. His response to “some other options”, was a joke. The serious part of the conversation was that she could come to work and earn the money. He denied that he was asking the complainant “to suck [his] cock”. He denied that those text messages showed his sexual interest towards the complainant. He accepted he had earlier said that he had a soft spot for the complainant, but said “I do like [the complainant]. I like all the children.”
The appellant accepted that the complainant’s mother was working a lot of night shifts early in their relationship. He took on the role of looking after the children. He denied that on one of those nights he: picked up the complainant when she was sleeping, took her to his room, put on a movie; asked her to suck his penis; inserted his penis into her mouth; masturbated in front of her; and licked her vagina. He denied that he had a sexual interest in the complaint. He accepted he had opportunity, but said he had no desire and it did not happen. The appellant denied that whilst he was at [northern regional Queensland] he touched the complainant’s vagina and breasts; tried to insert his fingers into her vagina and attempted to insert his penis in her vagina.
The appellant said, in relation to his text message exchange with the complainant’s mother, that he was absolutely stunned and shocked by the allegations. He denied his text message, “But stuff has happened, but not like she has said” and “I did have my hand down her pants when we were up north”, was referring to sexual activity between him and the complainant. He denied it was a comment about touching the complainant and that he was showing sexual interest towards her. The part of the text message further down, “There has been stuff going on between [the complainant] and I, but not what she has said”, was a reference to the complainant’s misbehaviour in sending photos and videos of herself on social media. It was not stuff between him and the complainant. The appellant denied that the text message “It’s true that I had my hand down her pants when we were up north. I got drunk, and [the complainant] woke me up and told me to move my hand”, was an admission to touching the complainant in a sexual way, or to showing his sexual interest towards her.
The appellant accepted that he would often go to the complainant’s school. On many occasions, he would drop off food. He would give a hug and a kiss to the top of the head. He did the same for her brother when he took him food. When asked whether he had ever given the complainant a long hug and kiss, the appellant replied, “Not in an inappropriate way.”[14] He denied pressing himself against the complainant’s body. He denied rubbing his hands up and down her body.
[14]AB 301/35.
Complainant’s mother
The complainant’s mother gave evidence that she had been in a relationship with the appellant until mid-2020. She had not been in contact with him since the relationship ended, when the appellant was arrested for these offences.
The complainant’s mother said that the appellant engaged with her children, whilst they lived together, like a normal father/child relationship. The appellant was involved in the disciplining of the children. There was nothing out of the ordinary in that process. In January 2020, the complainant told her that the appellant had done something to her. The complainant’s mother was shocked and asked what she meant by those words. Leading up to that complaint, the complainant had been undertaking stuff that was inappropriate. There were boys, sneaking out and alcohol at the school. The appellant and her had both been dealing with those issues.
The complainant’s mother accepted that the complaint made was of a sexual nature. The appellant had touched the complainant when they were on holiday up north. The complainant’s mother spoke to the appellant about the allegations. He assured her that nothing had happened. She did not speak with police at that time. The complainant’s mother said that between that complaint and the appellant moving out, his interaction with the complainant was normal behaviour.
The complainant’s mother said when the appellant first moved in, they were living at a house at Calamvale. They only had one TV in the house. It was in the loungeroom. She did not observe the complainant to be upset at any time in that period.
The complainant’s mother said when they travelled to [northern regional Queensland] they initially stayed at the first nephew’s house. Their bedroom contained an old metal framed bed. You could not move without it making a squeaky, rattling sound. She would have been 100 per cent aware if the appellant had got out of bed at any time. The complainant’s mother also gave evidence of the appellant having a scar on the underside of his penis; of referring the complainant to counselling several times in her life; and of the complainant receiving counselling in 2020, for approximately six months.
In cross-examination, the complainant’s mother accepted that when she first commenced the relationship with the appellant, she was working as a nurse. She worked night shifts two to three times a week. She trusted the appellant to look after the children when she was away. The appellant also did most of the drop offs for school. She described his relationship with the complainant as a good one. She did not agree that the appellant had a soft spot for the complainant.
The complainant’s mother agreed that she had returned from [northern regional Queensland] on 4 January 2020, with her son. The appellant and the complainant stayed longer. She was not present when they stayed at the second nephew’s house. She was aware that when they were staying there, they shared a bedroom.
The complainant’s mother accepted that there had been an exchange between her and the complainant in January 2020, in which the complainant had said that the appellant had touched her in places that she should not be touched by a 40-something year old man. The complainant’s mother thought they had had a face-to-face conversation. She did not remember text messages. She did not go to police because she did not believe that what the complainant was potentially saying was the whole truth. She asked the complainant to give her details. She could not tell her where or when. After those conversations, she did not ask anything more.
The complainant’s mother said she did have a discussion with the appellant about it. He explained their text message exchange. He said he was drunk; the complainant woke him up and told him to take his hand off. She did not have any concerns by the statement “there has been some stuff going on between [the complainant] and I”. She did not go to police because the complainant was in trouble at that time for sneaking out, drinking and being with boys.
The complainant’s mother accepted that on 31 July 2020, she became aware that police had been speaking with the complainant. She had been asked by police to provide a statement. She did not do so. She did not consider she had anything worthwhile to provide to police.
Consideration
In determining a ground of appeal that a verdict was unreasonable and against the weight of the evidence, an appellate court is required to undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.[15] In undertaking that assessment, the appellate court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.[16]
[15]Dansie v The Queen [2022] HCA 25 at [38].
[16]Pell v The Queen (2020) 268 CLR 123 at [39].
The appellate court is to have due regard for the position of a jury in the criminal justice system and the advantages afforded to that jury by having seen and heard the witnesses.[17] However, if upon an independent assessment of the record there are inconsistencies, discrepancies or other evidence which, allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict of the jury is to be set aside as unreasonable.[18]
[17]Dansie at [9], citing M v The Queen (1994) 191 CLR 487 at 493.
[18]Pell at [39].
The appellant submits that it was not open to the jury to be satisfied of his guilt of any of the offences, beyond reasonable doubt, as the evidence established: that the complainant admitted to her friend that it did not happen; that when they were staying at the first nephew’s house the appellant had slept in the same bed as the complainant’s mother and could not have left that bed without her knowledge; that after the mother returned home, the complainant had slept in the same room as her brother, yet by that stage the brother had returned home with the mother; and that in respect of one of the nights at the second nephew’s house, the complainant wore overalls to bed which would have prevented the appellant from penetrating her vagina with either his penis or his fingers.
The appellant also submits that there was no physical evidence supportive of the complainant’s account; that the evidence was insufficient to support a sexual interest, as contended for by the Crown; that the complainant had reasons to make false accusations against him; and that his text message exchange with the complainant’s mother did not constitute a confession. Finally, the complainant’s conduct in asking him to draw circles on her belly, shortly after he had allegedly molested her, was inconsistent with her account being truthful.
However, a consideration of the record as a whole supports the conclusion that it was open to the jury to be satisfied of the appellant’s guilt of each of counts 4, 5, 6, 7, 8 and 9, beyond reasonable doubt.
First, it was open to the jury to reject the appellant’s evidence. His explanation of his text message to the complainant’s mother that “Stuff happened”, namely, that it was a reference to the complainant’s behaviour, was inconsistent with a plain reading of the words in that message.
Second, whilst a consideration of the record does support a conclusion that there were inconsistencies in aspects of the complainant’s account, those inconsistencies were not of a character that the jury ought to have had a doubt as to her reliability and credibility in respect of the allegations of sexual contact with the appellant, whilst staying at [northern regional Queensland]. In respect of those allegations, the complainant had been consistent in respect of the events that had taken place. Whilst she became confused between houses, when dealing with those allegations in the police interview, the centrality of her allegations remained consistent and were supported in material respects by the contents of the text message exchange with her mother, shortly after her return to Brisbane.
In addition to that consistency, once the jury had rejected the appellant’s evidence to the contrary, it was open to the jury to conclude that the appellant’s text message exchange with the complainant’s mother was supportive of a sexual interest in the complainant, which rendered it more likely that the appellant had committed the offences the subject of events at [northern regional Queensland].
Third, issues such as the complainant’s differing statements to her friend, whether the complainant was wearing shorts or overalls, and her continued interaction with the appellant after the events at [northern regional Queensland] were matters considered by the jury. None of them, individually or collectively, was of a nature that a jury must have a doubt as to the reliability of the complainant’s central allegation of sexual offending by the appellant, whilst at [northern regional Queensland].
Fourth, the fact that the jury found the appellant not guilty of counts 1, 2 and 3 does not support a conclusion that the jury had a doubt as to the complainant’s reliability and credibility. Those events, on the complainant’s account, had occurred many years before. Further, they had not been raised by the complainant in her text message exchange with her mother in January 2020, nor in her preliminary complaint to her friend, or the school guidance counsellor.
It was open to a jury, acting consistently with its duty to consider the charges separately and independently, to give the appellant the benefit of the doubt in respect of counts which had not been raised at the outset by the complainant. The giving of the benefit of the doubt to the appellant, in respect of those matters, did not, however, mean the jury ought to have held a doubt as to the complainant’s reliability and credibility in respect of the allegations which had been the subject of the text message exchange and subsequent preliminary complaint.
Conclusion
Upon a consideration of the record as a whole, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of each of counts 4, 5, 6, 7, 8 and 9. The Court could not be satisfied that the jury, acting rationally, ought to have had a reasonable doubt as to proof of the appellant’s guilt of any of those counts.
I would order that the appeal be dismissed.
KELLY J: I agree with Boddice JA and with the order proposed by his Honour.
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