text:
- Unreported Judgment
- Appeal Determined (QCA)
R v SDD [2018] QCA 280
CA No 62 of 2018
DC No 72 of 2016
Court of Appeal
Appeal against Conviction
District Court at Maryborough – Date of Conviction: 9 February 2018; Date of Sentence: 9 February 2018 (Reid DCJ)
19 October 2018
18 July 2018
Sofronoff P and Gotterson JA and Boddice J
1. Leave be granted to adduce the further evidence.
2. The appeal be dismissed.
Criminal law – Particular offences – Offences against the person – Sexual offences – Indecent assault and related offences – Generally – where the female complainant was a child, aged between 14 and 16 years of age, at the time of the offending – where the appellant was the complainant's step-father – where the appellant was charged with five counts of indecent treatment of a child under 16, under care, five counts of observations in breach of privacy, and three counts of sexual assault, all of which were Domestic Violence Offences – where the appellant had massaged the complainant on occasion, and had viewed her naked in the shower
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant plead not guilty to counts 1-13 – where the appellant was convicted by a jury of counts 5 and 6, relating to viewing the complainant naked in the shower, and acquitted the appellant of all other counts – whether it was open to the jury to be satisfied of the appellant's guilt, beyond reasonable double, in respect of counts 5 and 6 – where the household was one where practical jokes were played – where the appellant claims, in respect of counts 5 and 6, the relevant bathroom door had a lock the complainant could have used, but did not – whether the complainant was credible – where the complainant gave consistent evidence in her interview with police and subsequently at trial – where the complainant's evidence was supported by the evidence of her mother – whether the jury considered counts 1-4 and 7-13 could have been explained by accident, or practical jokes, such that they could not be satisfied of the appellant's guilty beyond reasonable doubt – whether the jury's verdicts were materially affected by them being inadvertently shown a photograph on the visualiser during the evidence of the complainant's mother
Criminal law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – where the appellant was convicted by a jury of counts 5 and 6, and acquitted of all other counts – whether the jury's verdicts on counts 5 and 6 were inconsistent with the verdicts on each of the other counts – where counts 2-6 involved the appellant observing the complainant naked in the shower – where counts 2, 3, and 4 involved the appellant throwing water over the complainant, unlike counts 5 and 6 – whether it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant's guilt on counts 5 and 6, when they were not so satisfied in relation to the other counts – where the complainant's evidence prior to, and at trial, was consistent – where the independent evidence of the complainant's mother supported the complainant's evidence in relation to counts 5 and 6 – whether the jury considered counts 1-4 and 7-13 could have been explained by accident, or practical jokes, such that they could not be satisfied of the appellant's guilty beyond reasonable doubt
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v GAN [2012] QCA 50, applied
R v SBL [2009] QCA 130, applied
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
G Walsh, solicitor (pro bono) for the appellant
C N Marco for the respondent
Greg Walsh & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- [1]
SOFRONOFF P: I agree with the reasons of Boddice J and the orders his Honour proposes.
- [2]
GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
- [3]
BODDICE J: On 9 February 2018, the appellant was convicted by a jury of two counts of observations or recordings in breach of privacy, both being domestic violence offences. The jury found the appellant not guilty of eight counts of indecent dealing and three further counts of observations or recordings in breach of privacy. On that same date, a conviction was recorded in respect of the two counts to which the appellant was found guilty with no other penalty being imposed.
- [4]
The appellant appeals his conviction on those counts. The grounds of appeal are that the verdicts of guilty were unsafe and unsatisfactory and inconsistent with the verdicts of not guilty on the remaining counts on the indictment.
- [5]
The complainant in each count on the indictment was born on 27 November 1998. The appellant was her step-father. She had known him since she was four or five years of age. He had married her biological mother in 2009. They were separated in 2015. They were in the process of getting a divorce at the time the complainant first spoke to police.
- [6]
The counts related to events when the complainant was aged between 14 and 16 years. During that period the complainant resided with her mother, the appellant and four siblings at two separate addresses, one in Hervey Bay and one at Aldershot. Counts 1-4 were alleged to have been committed in the residence at Hervey Bay. Counts 5-12 were alleged to have been committed in the residence at Aldershot. Count 13 was alleged to have been committed in the residence of the appellant's friend.
- [7]
Count 1 on the indictment alleged the appellant lay on the complainant's bed and spooned her, pressing his body against her and holding her. Counts 2, 3 and 4 alleged that whilst the complainant was having a shower, the appellant threw water over her and in so doing observed her naked. Counts 5 and 6 alleged that whilst the complainant was in the shower the appellant looked at her naked from the bathroom doorway. Count 7 alleged the appellant kissed the complainant and inserted his tongue into her mouth. Count 8 alleged the appellant massaged the complainant with white cream and in doing so massaged her bottom area and vagina. Count 9 alleged the appellant, whilst lying on a bed with the complainant, put his arms around the complainant, hugged her and kissed her on the mouth. Count 10 alleged the appellant massaged the complainant with olive oil, touching her backside, and vagina area. Counts 11 and 12 alleged the appellant massaged the complainant's breasts. Count 13 alleged the appellant, whilst in bed with the complainant, cuddled the complainant and touched her back and backside area.
- [8]
The appellant was found guilty of counts 5 and 6 only.
- [9]
The complainant gave a statement to police on 12 March 2016. It was admitted into evidence pursuant to Section 93A of the Evidence Act. The complainant gave further evidence and was cross examined in a pre-recorded hearing on 15 June 2017. It was admitted pursuant to Section 21AK of the Evidence Act.
- [10]
The complainant said when she was around 14 years of age, attending the Hervey Bay High School and living at Archer Drive, Hervey Bay, the appellant opened her bedroom door, walked in and closed the door behind him. The complainant was alone, on her bed wearing underwear and a baggy shirt. The appellant lay behind her and started cuddling into her. The front of his body was up against her back. His hands were on his stomach.
- [11]
The complainant rolled over to face him and asked "what do you want?" The appellant did not reply but used his legs to weave in between the complainant's legs, so that her legs opened. He then cuddled the complainant by putting his arms around her. At that point the complainant heard her mother, or one of the children call out. The appellant left the bedroom, closing the door behind him.
- [12]
That incident made the complainant feel insecure. She tried not to think too much about it because she trusted him. However, on another time at Archer Drive, the appellant entered the bathroom when the complainant was having a shower at night. There was no lock on the bathroom door. The appellant knew she was having a shower, because she told her mother and the appellant and waited for them to acknowledge that she was going to shower. The complainant did this so they would know it was her in the shower, not one of her younger siblings.
- [13]
The appellant walked into the bathroom and threw a cup of cold water over the top of the shower cubicle. He looked to make sure it got the complainant. The complainant told him to get out and quickly turned away from him. The appellant laughed and walked out. Her mother yelled, "She is a teenager, you shouldn't be doing that". The appellant "just got angry and walked off".[1] The complainant felt really embarrassed. If anyone else in the family walked into the bathroom whilst she was having a shower, they would say sorry and leave the bathroom straight away, "but that's not what [the appellant] does."[2]
- [14]
The same thing happened again on another occasion at Archer Drive. The complainant was in the shower, the appellant walked in, opened the glass door of the shower cubicle and threw a cup of cold water at her vagina and breasts. The complainant shouted "get out" and covered her breasts and vagina areas. She turned away to face to wall. The appellant laughed, shut the glass door and walked out of the bathroom. It made the complainant feel really insecure. If this had happened when she was younger, she would not have thought much about it, but at the time she was a teenager and felt it was not right.
- [15]
The complainant said another time, when she was still about 14 and living at Archer Drive, the same thing happened again. She had told her mother and the appellant she was going to have a shower. The appellant opened the closed door of the bathroom and walked in carrying a green jug of water. The complainant tried to cover her naked body. The appellant looked at her before opening the shower cubicle door and throwing the jug of water at her breasts and vagina areas. The appellant laughed like on every other occasion, and walked out. This happened once or twice a week for a few months while they were living in Hervey Bay.
- [16]
The complainant moved schools a few times because of bullying and then their house at Aldershot became available. They moved back to it, around August. The complainant was 15 at that time. The appellant continued to walk in on her in the shower. One of the first times at Aldershot she had told her mother and the appellant she was going to have a shower. The appellant opened the door of the bathroom. There was no lock on that bathroom door either. The appellant stood there for about five seconds, staring at her naked body. The complainant tried to cover her private parts and turned away. She was so embarrassed. The appellant then walked out. As he went to go, he said "sorry, I thought it was one of the girls in here."[3]
- [17]
The complainant said at Aldershot, because they had tank water, the appellant stopped throwing cold water on her in the shower. Instead, he would just walk in while she was naked and pretend he did not know she was in the shower. The complainant remembered another time when she was still about 15. The appellant opened the bathroom door, about 30 cm wide, so he had a full view of her in the shower. He used the same excuse of "Sorry, I didn't know you were in there. I thought it was one of the girls."[4]
- [18]
The complainant recalled another incident at Aldershot when she was around 15. Two of her younger siblings were playing in the parents' bedroom. The appellant was with them, as was the complainant. They were all lying on the bed. The two girls were being immature, saying to the appellant "you and mummy stick the tongue in". The appellant said "what, like this", and stuck his tongue out. He then rolled over next to the complainant, grabbed her head and kissed her and put his tongue in her mouth. He would not let go, even though the complainant tried to push him away. It lasted a few seconds. The appellant then pulled away but moved to do it again. The complainant said "stop" and pushed his head away. The complainant said she felt so uncomfortable.
- [19]
At Aldershot, a garage was converted into a bedroom for the complainant. The appellant would come to her bedroom sometimes, whilst her mother was busy with the younger children. The complainant recalled an occasion when she was still 15. She was on her bed watching TV. The bedroom door was closed. The appellant walked in and closed the door behind him. He told the complainant to lie down on the bed so he could give her a massage. The complainant lay down on her stomach. She was wearing a shirt with a boob tube top underneath and bike pants.
- [20]
The appellant asked "where is your cream?" The complainant obtained some lilly cream. The appellant pushed up her shirt and said "take it off". He started massaging the complainant's back. He pushed up her boob tube. He massaged up her back and down to her bottom area. He started massaging her bottom through her pants. He also touched the complainant's vagina once. When the complainant told him to stop, the appellant stopped massaging her and just lay beside her. The appellant then said "I've got to go to bed", and left the room.[5] The massage went on for five or ten minutes.
- [21]
The complainant remembered another time when she was about 15, lying on her parents' bed at Aldershot. It was on a weekend, around 5.00 pm. The appellant and the complainant were talking while lying on the bed on their sides, facing each other. The appellant put his arm around her, hugged her and kissed the complainant on the mouth once. He pulled his head away, looked at her face and said "I love you". He kept kissing the complainant on her lips and face. The complainant rolled over and jumped out of bed. As she did so, the appellant dragged his hand over her breasts. The complainant did not know if her breasts were touched by accident or on purpose. The complainant said as he was kissing her, it felt "kind of normal because he used to do it to me all the time", but looking back she felt disgusted.
- [22]
The complainant recalled the appellant giving her a massage on another occasion, she was 15. She was lying on her bed, with the door closed when the appellant walked in and closed the door behind him. The complainant thinks she may have asked the appellant for a back massage. The appellant told her to take off her shirt and boob tube. The appellant lay down beside her on the bed. He started massaging her back. He pulled her underwear down and started massaging her bum. He then started massaging lower so that both his thumbs were on her vaginal area and the rest of his hands were on her bottom. The complainant told him to stop. The appellant stopped massaging her vagina but kept massaging her bottom.
- [23]
After about 10 minutes the appellant stopped massaging the complainant and left the bedroom saying "I have to go."[6] The complainant said the appellant never stayed for long after she told him to stop. The appellant did not try anything after those massages. The appellant had given her massages before and after these two times, but there was not anything sexual about those other times because she still had her boob tube on and he did not try to massage her bottom or vagina.
- [24]
When the complainant started dating a male from across the road called "Jack", the appellant did not talk to her for months, or if he did it was for a brief time. The appellant stopped doing anything to her, like coming into the shower or trying to massage her, or even coming into her bedroom. It all stopped. The complainant was with Jack, off and on for about six months, but officially dating for about three months. They were off and on after they broke up on her 16th birthday.
- [25]
The complainant remembered a time when she was 16 and at home at Aldershot with her mother, the appellant and her siblings. The appellant said to her "if you weren't my daughter, I'd have sex with you."[7] The complainant did not know what to say. It made her feel insecure. She did not know if her mother heard the appellant say it.
- [26]
The complainant remembered another day, in the lounge room at Aldershot, when she was complaining about a sore arm. The complainant was 16 at the time. It was about 8.00 or 8.30 pm. The complainant's mother was asleep in her room and the siblings had all gone to bed. The appellant said he would massage her arms for her. The appellant sat on top of her with one leg either side, but his legs were taking his weight. He started massaging the complainant's left upper arm and shoulder blades. He then started massaging under the complainant's arms. He massaged the sides of both of her breasts. The complainant moved her arms in closer to cover her breasts to stop him, but he kept trying to get to her breasts under her arm. The appellant pushed her boob tube upwards so he was able to massage the side of her breasts underneath the boob tube.
- [27]
After a while the appellant told the complainant to roll over. He started massaging the complainant's right arm and then pulled up her boob tube at the front so it was sitting above her breasts. The complainant used her right arm to cover her breasts. The appellant said "you are my daughter, I should be able to make you feel better". He pushed her arm away and started massaging her breasts. The appellant said "don't tell your mother about me doing this, because she wouldn't think its right, because I'm your dad". He massaged the breasts for about two minutes before the complainant told him to stop. The appellant asked her if she enjoyed it. The complainant did not reply and left the room.
- [28]
In about October 2015, her mother and the appellant separated and the appellant moved to a caravan park. The complainant only saw the appellant there once, although there were times when she called to talk to him. The complainant said she still loved the appellant, despite what he did to her mother and her brother.
- [29]
On 9 January 2016, the appellant picked the complainant up from her grandmother's house in Tweed Heads. They drove to Brisbane to stay at a friend's house. The friend gave up his bedroom for the complainant, who went to bed at about 10.00 pm. The appellant was supposed to sleep in the lounge room. Instead, he lay on the bed beside the complainant. He touched her back and bottom close to her hips and started to pull her in closer to him. The complainant said "I don't want to be touched". The appellant asked "why, I always used to when you were little." The complainant said "well, I'm not your little girl anymore". The appellant said "you will always be my little girl." The complainant moved as far away as possible and slept on the edge of the bed.
- [30]
The next day, the complainant travelled with the appellant to go to her friend's birthday party. During the trip, the appellant asked the complainant questions about her sex life. He asked her "have you ever come?" and "would you ever let me make you come?" The complainant did not answer. She put on her ear phones. The appellant kept asking questions. After a while, the complainant took the headphones off. The appellant started to tell the complainant about his sex life with the complainant's mother. He said they had anal sex and how "she was really tight and just stuff that he shouldn't have been telling me."[8]
- [31]
The complainant had seen the appellant twice since that time. The first occasion was a couple of months before the police interview. She was going through some things with her mother at Aldershot. The complainant called the appellant and he came over after work. The complainant saw him outside. She hugged him and he hugged her back. The complainant's mother and the appellant then started arguing so the complainant told the appellant "just go", and he left. The second and last time she saw the appellant was a few weeks before the interview. He came to Aldershot to pick up some things.
- [32]
The complainant never gave the appellant permission to touch her inappropriately at any age. Whenever he touched her or spoke to her in a sexual way she felt insecure and uncomfortable. A few weeks before the interview she realised that what had been happening to her over the last few years was not right. She decided to report it to police. On 8 March 2016, the complainant told police she wanted to go ahead with a complaint. She made the statement on 12 March 2016.
- [33]
In her pre-recorded evidence, given when the complainant was 18 years of age, the complainant said she lived at Archer Drive for about two and half years. She moved there when aged 13. She moved out when aged 15 and a half years. The first thing the complainant remembered the appellant doing to her at Archer Drive, was linking his legs and hers and cuddling her from behind. The appellant positioned himself right behind her back, spooning her and cuddling her so that his whole body was touching the whole back half of her body. He was moving his legs between hers and wrapping his arms around her body. After about three minutes or so, the appellant rolled over. At that stage, she had moved away so that she was not touching him but his legs were still between her legs. Not long after, the appellant opened the door and left the bedroom. Her bedroom at Archer Drive was next to her mother's bedroom.
- [34]
Whilst at Archer Drive, the appellant walked into the shower whilst the complainant was showering and threw water over the top of the cubicle on four or five occasions, maybe more. The bathroom door did not have a lock. The appellant would get some water, open the door and throw it over the complainant when she was wearing nothing. The complainant could see him clearly and thought she was visible to him even though she turned away.
- [35]
The first time the complainant laughed because she thought it was funny and normal. The next time it happened was a few days to a week later. The appellant opened the door a bit further and threw the water over the complainant. The complainant told him to get out and turned her body away. The appellant was only in the bathroom long enough to throw the water and walk out. Again, she was wearing nothing. She would have been visible to the appellant although she turned her body away to face the wall to cover herself up. The shower was a glass shower with a swing door. The appellant threw the water over the top of the shower cubicle.
- [36]
On the third occasion at Archer Drive, the appellant opened the shower cubicle door and threw a whole litre of ice-cold water onto the complainant. She told him to get out. Again, she was wearing nothing. It happened on a fourth occasion at Archer Drive. On this occasion the appellant did not use a jug. He was back to using a cup of water. He walked in, threw it, the complainant told him to get out and he walked out of the bathroom.
- [37]
At Aldershot, the appellant touched her breasts whilst she was lying on the lounge room floor. The complainant complained of having a very sore left arm. The appellant asked if she would like a massage. The complainant said yes because she was in a lot of pain. It was around 8.00 pm at night. Everyone else was home but her mother and siblings were asleep in bed. The appellant massaged her back for approximately five minutes. He then asked her to roll over, so he could massage her arm. The complainant was wearing bike pants and a boob tube.
- [38]
The appellant asked the complainant to lift up her boob tube, saying it was easier to massage her. The complainant put her right arm over the top of her breasts. The appellant started massaging her arm before he went to the side boob area and started to massage her whole breasts. The appellant moved her hand away. He said "don't tell your mother about this, because she wouldn't approve of it. I'm your father – I'm your dad. I should be able to make you feel good."[9] The appellant was massaging the skin of her breasts for two minutes before she said "that's wrong". The complainant left and went to her bedroom. The complainant said she was 15 or 16 years of age.
- [39]
The complainant's next memory of an incident at Aldershot was when the appellant kissed her on the lips in front of two of her siblings. Her siblings put their tongues out and said to the appellant "you do this to mummy". The appellant said "what, like this?", and pulled the complainant's head to him whilst he stuck his tongue out. The appellant put his tongue inside the complainant's mouth and started to move it around. The complainant bit his tongue. She pushed his head away and said "stop". She estimated it lasted for five seconds. The complainant was 16 at that time, in year 11 at school. The bedroom door was open when the appellant kissed her.
- [40]
The next incident at Aldershot occurred when the complainant was lying on her bed in the converted garage. She had asked the appellant to give her a massage. The appellant came into the bedroom, asked for some white cream and started to massage the complainant's back, down to her hips and bottom. It was about 7.00 pm at night. No one else was in the room. The complainant was laying on her stomach wearing a boob tube and bike pants. The appellant was massaging her bottom over her clothing. He then moved back to her back. She was 16 at the time.
- [41]
The complainant recalled another time, exactly like that except the appellant used olive oil and he moved her bike pants down to just underneath her bottom. She had asked the appellant to give her a massage. He asked her to get the olive oil. He sat and rubbed the complainant's back whilst she was lying down in her bedroom. He moved down to her inner thighs, bottom and back to her back. She was wearing a boob tube and bike pants. The appellant was touching her bottom under her clothing.
- [42]
Similar occasions of massages occurred at Aldershot. On one of those occasions the complainant was wearing a boob tube and underwear but not wearing any bike pants. It occurred at night in her bedroom when she was 15 or 16. She had asked the appellant to give her a massage because she was in pain with knots in her shoulders. On this occasion, the appellant had his thumbs either side of her inner thighs, touching her vagina as he massaged her bottom. The complainant told him "you are touching my vagina. Can you not." The appellant moved his arms away and started massaging her back again, before he left the bedroom and shut the door behind him. The appellant was touching her vaginal area over her underwear, using two thumbs. He did not touch the vaginal area for very long. Everyone else in the house was asleep.
- [43]
The appellant massaged her vaginal area on two occasions. She was not sure whether there were any more than two. The second occasion also occurred whilst she was lying on her bed. She had asked the appellant for a massage. He started to massage her bottom and inner thigh before putting both his thumbs onto her vaginal area. He stopped when she said "stop, you are touching my vagina area". He then walked out. Again, she estimated she was 15 or 16 years of age.
- [44]
On one occasion, soon after they moved to Aldershot, she told her mother and the appellant she was going for a shower and asked if it was okay. They said yes. The complainant went to the shower and got undressed. The appellant knocked on the door. The complainant said "what" and he opened it. The appellant said "sorry, I thought it was one of the girls" and left the room. At the time he opened the door, the complainant was in the shower, underneath the running water. It was a glass shower cubicle.
- [45]
It happened on a second occasion at Aldershot. Again, the appellant walked in saying "Sorry, I thought it was one of the girls again". The complainant said every time she went for a shower she always informed her parents first and waited for their response before going to the shower. On the second occasion the appellant looked at her for a bit longer. The complainant told him to get out. There was no lock on the shower door.
- [46]
On another occasion, the complainant travelled with the appellant to attend a friend's 17th birthday party. They stayed at a friend's house. Whilst lying on a bed, the appellant started to spoon the complainant from behind. The complainant told him she did not want to be touched. She said she was not his little girl. The appellant replied "you are always going to be my little girl". He cuddled her. The complainant told him she did not want to be touched and rolled away. She was 17 at the time. The appellant was hugging her, squeezing her tight. One arm was wrapped around her stomach and the other was draped over the top of her breasts. The appellant put his arm on her stomach.
- [47]
When they were returning home in the appellant's truck, the next day, the appellant was asking the complainant questions about her sex life. The appellant spoke about how he would make her mother come and how he wanted to do anal and "just things like that".[10] The complainant also recalled an occasion when she was sitting on the kitchen bench having a conversation with her mother and the appellant. The appellant said "if you weren't my daughter, I would have sex with you."[11] The appellant spoke quietly but loud enough so the complainant could hear it. She thought her mother also heard it but was not sure.
- [48]
In cross examination, the complainant said it was always the appellant who gave her massages. She did not think he ever massaged any of the other children. The complainant agreed she was diagnosed with diabetes and coeliac disease just before her 12th birthday. These two conditions meant she had to be on a special diet. She also had to regularly check her sugar and insulin levels. Her mother took her to any check-up appointments. The appellant "was always working". The complainant did not accept she was bullied at school because of those health issues.
- [49]
The complainant accepted that when she was growing up the appellant would play regularly with all of the children, including the complainant. The family played practical jokes on each other. One practical joke was to hose the appellant. That joke was always performed when people were clothed. Other practical jokes included when washing up and there were lots of bubbles, throwing soap at each other.
- [50]
The complainant was diagnosed with autism at Archer Drive. She commenced seeing a psychologist, Karen Hooge, when in grade 9 at school. She continued to see her regularly up until November 2016. During 2013, she was seeing her perhaps once a week. Her mother and the appellant thought she needed to see the psychologist. The complainant mainly spoke to the psychologist by herself. At the end of the appointment the psychologist spoke to her mother about her home life.
- [51]
During 2013 and 2014, there were difficulties in the household because of her brother's autism. The appellant would lose his temper and beat her brother. The complainant started to open up to Hooge about everything in her life. She was trusting of the psychologist by the end of 2013. She would talk to the psychologist about personal issues in her life. She could confide in the psychologist about anything that was troubling her.
- [52]
At the time of the first incident with the appellant, the cuddling incident, the complainant was roughly 14 years of age and not very happy at school. The household was noisy and chaotic. She spent a lot of time in her bedroom alone. She would shut the door and watch movies or work on her computer. At this time, she and the appellant had quite a cuddling relationship. She would hug the appellant to greet him. There were occasions the appellant would lie on her bed to ask about her day or to check about her mental health. The appellant would never knock. The appellant would always kiss her on the face, usually the lips. He never kissed her on the cheek.
- [53]
The complainant told the psychologist she would seek hugs from the appellant and her mother to make her feel better. It was a comfort thing to know someone cared about her. The complainant only sought hugging from the appellant, "never the intimate touching that he would do".[12] The complainant never told the psychologist about the cuddling incident. She thought it was perfectly normal. It was only in 2016, when the appellant started to ask her intimate questions about wanting her to come and whether she would let him make her come, that she drew the line and she knew it was inappropriate. The appellant did not weave his legs or spoon the other children.
- [54]
At Archer Drive, the complainant's mother and the appellant had rules about how long a person could shower. After three minutes, they would come in and say "you need to get out because you are wasting water". The complainant denied the appellant would throw a cup of water over the top of the shower because she had been in there too long. One of the reasons the appellant threw water over the shower door was to make her cold because it was winter. He thought it was funny. The complainant had thrown cold water over the top of the shower on the appellant on one occasion. She covered her eyes, hoped for the best and walked out. The appellant did it to her multiple times and would look at her in the shower. On occasions, the appellant opened the shower door and threw water directly at her chest and vaginal area – nowhere else.
- [55]
The complainant denied the appellant only threw water at the complainant over the shower door. The complainant denied opening the bathroom door blocked the shower door. You could see into the shower cubicle and you could still open the shower cubicle door when the bathroom door was open. At the time these shower incidents were happening at Archer Drive, she did not say anything to the psychologist.
- [56]
The appellant never threw water over the shower cubicle when they were living at Aldershot. On the occasions when she was showering at Aldershot, the appellant did not enter the bathroom. He opened the bathroom door wide enough to look at the complainant. He then said he thought it was one of his daughters. There was no locking device on the bathroom door. If it had, she would have used it.
- [57]
The complainant agreed that photographs of the bathroom at Aldershot revealed the bathroom door did not have a wooden handle, as described by the complainant. The complainant was not sure if the doorhandle in the photograph was the same. A further photograph revealed the doorhandle in the photograph had a locking device. The complainant did not remember a lock on the door. She agreed she did not raise either of those incidents with the psychologist. She also did not tell the psychologist about the kissing incident in front of her siblings or about the massage incidents.
- [58]
The appellant gave her a massage to relieve pain in her back. She did not recall having pain in her vaginal area "or on my arse for that matter".[13] The complainant asked for massages because they were initially harmless. As the touching increased, to include touching of her vagina, bottom and breasts, she asked for no more massages. Whenever the appellant offered massages, she declined a massage. The appellant had given her other massages before and after the inappropriate touching, but as soon as the breast incident happened, the complainant did not request any more massages. She did not tell the psychologist about the olive oil massage.
- [59]
The complainant denied she offered for the appellant to sleep in the same bed at the friend's house. She denied the appellant said he needed sleep before he started work in the early hours of the morning. She denied that all the appellant did was give her a good night kiss on the cheek. At that stage the appellant and her mother were "split".[14] Her mother had kicked the appellant out after he had hit her brother in the head three times. She was upset with the appellant, for hitting her brother. She did not "care" that the appellant left the house.[15]
- [60]
The complainant denied knowing that her mother had spoken to the psychologist about the complainant's risk taking behaviours, including unprotected sex. Her mother did not know she had lost her virginity until the appellant told her, when they were living at Aldershot. At that time, the complainant's mother confronted the complainant about it. The complainant spoke to the appellant about that kind of thing because his reaction was more "guessable". She did not talk to her mother.
- [61]
The conversation she had with the appellant on the trip was not about whether boys and alcohol were going to be present at the party. The appellant asked her if she would like alcohol and purchased some alcohol for her. The appellant met the mother of the person having the party. The appellant had a concern about the complainant's blood sugars going low while drinking. The appellant asked her to focus on her diabetes and to make sure her blood sugar levels did not get low. The appellant said if she needed him, he would come and pick her up.
- [62]
The complainant denied that in that conversation she told the appellant she had been going to Hervey Bay and having sex with a male. She denied the appellant said "you didn't let him come inside you, did he?" and that she had replied "no, we used protection".[16] The conversation was about the appellant asking if she had ever come and if she would ever let him make her come, and telling her about her mother's sex life. The discussion was not about the complainant's risky sexual practice and her mental health.
- [63]
The complainant did not sleep with Jack until the middle of 2015 when they moved back to Aldershot. There was a time when she was not telling her parents the truth about her relationship with Jack. They found out about the sexual relationship by reading some of her Facebook messages. There was a meeting with Jack, the complainant and both sets of parents. The meeting was about a pregnancy scare and what was going to happen if it came back positive.
- [64]
The complainant accepted that in her sessions with the psychologist in early 2015 she did not raise any problems with the appellant. The complainant told the psychologist about the appellant's sexual behaviour towards her after the trip incident in January 2016. The complainant then spoke to a neighbour about what was happening to her. She did not want to hurt her mother. Her mother found out and spoke to her about what had happened with the appellant. The first person she ever told was the psychologist.
- [65]
In re-examination, the complainant said she continued to hug and cuddle the appellant after he left Aldershot because she saw him as her father who had been there for her throughout her life. She did not tell the psychologist before the beginning of 2016 about the sexual things because she "just thought it was normal".[17] She told the psychologist when she realised that what was happening was not right. The appellant crossed the line saying he wanted to make her come. You do not talk to anyone like that.
Preliminary complaint
- [66]
DG, met the complainant, her mother and the appellant as neighbours in 2014. They became good friends. In about October 2015, she became aware the complainant's mother and appellant had broken up. In about February 2016, she spoke to the complainant about the appellant at Aldershot. The conversation occurred in the complainant's bedroom. Only the complainant and DG were present. DG had gone down to see the complainant because she was getting messages from the complainant's mother that the complainant was upset. DG described the complainant as "about to break … just mentally crying".[18]
- [67]
DG asked the complainant why she did not get her mother to make an appointment with the psychologist. The complainant said "no" and then started "blurting out the things" about the appellant.[19] The appellant had picked her up at Tweed Heads and they had conversations about how many times the complainant had orgasmed and what kind of sexual positions. The appellant was also trying to tell the complainant about his sex life with her mother. The complainant told DG about a night in Brisbane when she was in the same bed as the appellant and she felt uncomfortable. The appellant would also massage her and touch her inappropriately on the breasts, sometimes sliding down around the buttocks and vagina. The complainant "would literally sort of throw her hands down if it got too close to either parts, but she said she felt uncomfortable about it".[20]
- [68]
DG was talking to the complainant in the bedroom for about an hour. The complainant was crying. DG was asking the complainant "are you sure this is what happened?" and saying she needed to talk to her mother, not DG.[21] The complainant was literally a mess. At the end of the conversation the complainant asked DG to speak to her mother.
- [69]
In cross examination, DG estimated she first met the complainant and her family in about June 2014. The families became great friends. It was not uncommon to discuss problems associated with their children. DG described the appellant as hard working, with a close bond with his children. All of the children were happy to see him. The appellant did "muck around" and joke with the children. DG was aware that if there were problems with the complainant's use of her telephone, the appellant would go through her telephone to discover things.
- [70]
DG agreed that at the time of this conversation she was aware that the appellant and the complainant's mother had separated and that it was a big shock. They seemed a happy loving couple. The complainant's mother was "just heartbroken".[22] The complainant also seemed devastated but DG could not say if it was about the breakup as the complainant was constantly upset at that time.
Complainant's mother
- [71]
The complainant's mother gave evidence that she was in a relationship with the appellant between 9 November 2003 and 30 October 2015. Throughout the relationship, the appellant played the role of the complainant's father, having control over the complainant, including disciplining her. The complainant called him dad. The complainant's mother had one other child to the same father as the complainant's father. Her remaining three children were the appellant's biological children.
- [72]
In February 2012, the family moved to Archer Drive. She separated from the appellant, between October 2013 and June 2014. During this period the appellant was living in a flat. When they reunited, he moved back to Archer Drive for a short period. In June 2014, they moved back to a house they had built at Aldershot. They were living at Aldershot when she separated from the appellant in 2015. At that time, she remained at Aldershot with the children.
- [73]
At Archer Drive, and at Aldershot, the complainant had a routine of asking if it was okay for her to have a shower. The complainant would ask them to let the other children know so they did not come into the bathroom. The complaint still did this routine today. There was no lock on the main bathroom door at either residence.
- [74]
The complainant's mother recalled an occasion at Archer Drive when the complainant's shower was interrupted by the appellant. She saw the appellant get a jug of cold water out of the fridge. When she asked what he was doing the appellant said "I'm just going to play a practical joke on [the complainant]".[23] The appellant took the jug down the hallway. The complainant's mother then heard the complainant scream. The complainant's mother had asked the appellant not to do it because the complainant was having a shower and she is a teenager. The appellant replied "don't worry, I'm not going to look".[24] At that time the complainant was 14 years.
- [75]
There were numerous times the complainant's mother had seen the appellant grab some tupperware out of the cupboard, fill it with the water and go down the hallway. She would hear the bathroom door open and hear the complainant scream. On every single occasion, without fail, the complainant had announced she was about to use the shower before the appellant filled the Tupperware. On each occasion, the appellant had been present. On no occasion at Archer Drive, did the appellant do this to any other child.
- [76]
The complainant's mother also observed the appellant interrupt the complainant in the shower at Aldershot. The complainant had said she was going to have a shower, asked if that was okay and requested they make sure the children do not come into the bathroom. Not long after, the complainant had turned the shower on. The bathroom door was shut. The appellant walked past the complainant's mother into the bathroom. The complainant screamed and said "get out". The complainant was 15, probably closer to 16. The appellant was about 42. The complainant's mother could hear the pressure pump and the water hitting the shower screen and floor.
- [77]
Whilst at Aldershot, the appellant made sexual comments towards the complainant. At the time, the complainant was being very negative and was upset as she had broken up with her boyfriend. The complainant was sitting on the opposite side on the kitchen bench. The appellant said "if you weren't my daughter, I would have sex with you". The complainant's mother told the appellant he should not be saying that to her. The appellant replied he was just trying to make her feel better.
- [78]
Whilst they were living at Archer Street and at Aldershot, the appellant would massage the complainant. He massaged the complainant a lot at Aldershot. The appellant would get the complainant to lie on her stomach, either in her bedroom or in the lounge room. The complainant would undo her bra and take her shirt off. The appellant would massage her shoulders, arms, back, legs and bottom. The complainant's mother did not ever see the appellant massage the complainant's breasts or vagina.
- [79]
After she had separated from the appellant, the complainant told her things the appellant had been doing to her. The first conversation occurred when they were in their car looking at a property. The complainant said something about a conversation she had had with the appellant and made a joke about the mother's sex life with the appellant. The complainant's mother told her that was not something she wanted to discuss with the complainant. The complainant's mother spoke to the complainant's psychologist before taking the complainant to police in late February or early March 2016.
- [80]
Before taking the complainant to police, she had another conversation with the complainant in the complainant's bedroom. The complainant said the appellant had given her a massage and touched the side of her breast and the complainant felt uncomfortable. The appellant was getting too close to her vagina and she did not like him massaging her backside. The complainant also did not like the appellant walking in on her in the shower. Once, when the complainant got out of the shower and had walked to her bedroom, the appellant stood there while the complainant was half naked and refused to leave. There were also a lot of sexual conversations between the appellant and the complainant. The appellant would look at everything on her phone for a very long period.
- [81]
In cross examination, the complainant's mother agreed she massaged each child until about a year and a half old. The complainant's mother did not recall encouraging the appellant to apply cream to the children's legs, arms and backs. She accepted the appellant was a good father. The children would greet him each afternoon. There were difficulties between the appellant's relationship with one of the children, who suffered from autism and resisted discipline. That became a problem in the family.
- [82]
The appellant had a practice of giving the children slobbering kisses. The appellant would stick his tongue out and ask the little ones to do the same. They would then touch tongues. The appellant would also chase the children around the house. On occasions, the appellant and the complainant would chase each other around the house. The complainant would put salt in the appellant's coffee. The appellant and the complainant liked to play practical jokes on each other.
- [83]
The complainant's mother rang Child Youth and Mental Health for assistance with the complainant. Hooge was assigned to the complainant. They visited Hooge about various problems, every two or three weeks. Hooge would talk to the complainant's mother after she had finished with the complainant. There was only one or two occasions the complainant's mother was present with Hooge and the complainant. There may have been occasions when the appellant was also present. Hooge gave advice about behavioural management of the complainant in particular, but also the other children in general. The complainant's mother would pass that advice on to the appellant.
- [84]
In around June 2014, she was concerned about a photograph on the complainant's Facebook. The complainant's mother told the appellant about it. She did not go to the extent that the appellant went, of looking at every single thing on the complainant's telephone for long periods of time. She asked the complainant to remove that image. Hooge gave advice about being very proactive about sexting. Both she and the appellant took on that role. Hooge also gave advice that she and the appellant should take the complainant's telephone from her at 7.00 pm, so that she could go to sleep.
- [85]
In 2014, the complainant's mother became aware that the complainant formed a relationship with Jack, who lived across the road at Aldershot. She and the appellant learned the complainant had had unprotected sex on two occasions with Jack. This was the period when the appellant started to go through the complainant's telephone a lot. The complainant's mother felt they needed to protect her privacy. The appellant said they needed to make sure she was not talking to other people about things she should not have been talking about. They became concerned the complainant was not telling them the full details of her relationship and sexual involvement with Jack.
- [86]
Up until this stage, the complainant had not ever made a complaint about the appellant engaging in inappropriate behaviour towards her. Even the day the complainant told her what was happening, the complainant did not realise it was wrong. Both in the car and in the bedroom, when she discussed it with the complainant, the complainant said she felt uncomfortable but did not realise it was wrong because the appellant was her dad.
- [87]
There were at least 10 occasions at Archer Drive that the appellant threw water over the complainant in the shower. On none of these occasions did the complainant's mother actually see the appellant enter the bathroom. She heard the complainant scream and, on occasions, heard the door open. There was no lock on the bathroom door at Archer Drive or at Aldershot. A lock was only put on the bathroom door at Aldershot, not long before they moved out. The toilet door had a lock on it.
- [88]
The appellant had a practice of massaging the complainant. The complainant's mother saw the appellant use olive oil when massaging the complainant. The appellant would massage the complainant's back, shoulders and arms while he was sitting on her backside. The appellant then moved off to the side to do her legs and backside. She did not like the appellant massaging the complainant's backside, but did not think anything of it because he was her dad.
- [89]
The complainant's mother saw the appellant enter the complainant's bedroom in Archer Drive, on an occasion when the complainant had come out of the shower with a towel wrapped around her. The appellant was walking ahead of the complainant's mother down the hallway. He walked into the complainant's bedroom. The complainant was half naked with no bra on and the towel around her waist. She was covering her breasts. The complainant's mother asked him to get out because the complainant was half naked. The appellant said "no, I'm not going anywhere. I'm her dad, it's alright. I'll just wait till she's dressed."[25]
- [90]
There was another occasion when she saw the appellant in the complainant's bedroom at Aldershot and the complainant was not dressed properly. The appellant was giving the complainant a massage. The appellant was lying down beside the complainant, who had her bra undone. The appellant was massaging her, whilst the complainant was lying on her stomach. The complainant got up and left saying she was going to have a shower. She did not make any complaint to the complainant's mother about the appellant.
- [91]
The marriage ended in October 2015 after the complainant's mother found the appellant had one of their sons in a headlock. She saw the appellant punch the son in the head. The appellant said he could "not do this anymore" and left the house. He later apologised to their son. At that point in their marriage, the appellant was always angry or upset. The appellant then lived in a caravan park. Whilst there, the complainant stayed with the appellant on more than one occasion, usually for two nights duration. The complainant also spent time with the appellant and his family at Christmas 2015. There was no reluctance on the part of the complainant to spend time with the appellant.
- [92]
The conversation the complainant's mother had with the complainant in the car in February 2016 arose after the complainant made a sexual joke. She asked if the appellant and the complainant's mother had had anal sex. The complainant's mother asked why the appellant was discussing this with the complainant. The complainant said that when she was with the appellant driving home in January 2016, the appellant had asked her if she had come before and if she had used anything or used her hand or fingers. The complainant's mother said this was wrong and they would speak to the psychologist.
- [93]
In the later conversation in the bedroom, the complainant's mother asked the complainant what had been going on. The complainant's mother went into the bedroom because DG had told her about a conversation with the complainant. The complainant's mother spoke to the complainant about the massaging near her breasts and getting too close to her vagina and the discussions the complainant had had with the appellant. The complainant said the massages made her feel uncomfortable. The appellant got too close to her vagina.
- [94]
Caryn Hooge, psychologist, worked with the complainant on a number of issues across 12 sessions between 14 April 2015 and March 2016. On 22 February 2016, the complainant told her about things the appellant had been doing to her. When she had some pain in her ribs, the appellant had placed his hand over the majority of her left breast and applied pressure. There were other occasions when the appellant would give her a massage and bring his hands down her back, over her buttocks, into her inner thighs and brushing her vagina with his fingers. The complainant felt uncomfortable. This was the first time the complainant had raised any inappropriate touching by the appellant.
- [95]
Hooge had earlier seen the complainant through Child and Youth Mental Health on 26 April 2013. There had been a number of consultations in that role between 26 April 2014 and 14 April 2015. During that period, Hooge was seeing the complainant in the vicinity of every two or three weeks. On occasions the other children would also be part of the sessions she undertook with the complainant's mother and the appellant in 2013 and 2014.
- [96]
In cross examination, Hooge agreed that in a session on 13 November 2015, the complainant began talking to her about sexual behaviour between the appellant and the complainant's mother. The complainant indicated she did not want to know about those things. On that day, the complainant's mother had also revealed that the complainant had told her the appellant had been asking the complainant questions about her own sexual history with boyfriends and about whether the complainant masturbates.
- [97]
Hooge accepted the complainant did not ever raise with her, in their session on 8 February 2016, a conversation with the appellant, when getting a lift from Brisbane to Aldershot. Hooge did not recall the complainant raising with her, in the session on 22 February 2016, the appellant looking at her in the bathroom, tongue kissing her or throwing water over her in the shower. The complainant also did not make any disclosure, in the session on 22 February 2016, that she had requested massages from the appellant.
- [98]
Hooge accepted that when she initially saw the complainant in April 2013, she was told the complainant had low motivation, had diabetes and other medical conditions, was bullied at school and suffered social withdrawal. The complainant also had problems with duration of computer use. The complainant gave her a history of living in a converted living space with no door and in a chaotic household with a number of children in the house. The complainant described the relationship with the appellant as close, saying she could tell him anything "sometimes more than mum, as he's more available".[26]
- [99]
At that time her role included, not only assessing and treating the complainant, but giving advice and guidance to the complainant's mother and the appellant about the complainant's problems. There were occasions when they were present with the complainant. At that time, Hooge spoke about parenting support for problem solving situations within the family. On 24 June 2014, an issue had arisen about the complainant's mother going through the complainant's Facebook. The complainant was concerned about her privacy. The complainant's mother was concerned about risk taking by the complainant. Hooge educated the complainant's mother about some of the implications of those types of events.
- [100]
On 15 July 2014, the complainant had provided information about spending a lot of time with Jack. Later, on 22 July 2014, the complainant discussed with Hooge problems with her mother's response to the relationship with Jack. Hooge was not certain when the complainant told her she was in a relationship, beyond friendship, with Jack. The complainant told her on 11 September 2014, she may have been pregnant to Jack. The complainant said her parents were struggling to believe her because of the broken trust.
- [101]
On 21 November 2014, there was a meeting involving the complainant, her mother and the appellant. The issue was broader than just the relationship with Jack. The complainant was not being entirely forthcoming about every aspect. Hooge, the complainant's mother and the appellant discussed the possibility the complainant may have been having unprotected sex. Hooge gave them some advice, including ensuring the complainant used protection to avoid pregnancy and contracting a communicable disease.
- [102]
The appellant gave evidence that he first met the complainant's mother in 2003. At that stage she had two children, the complainant aged around four and a son aged two. In early 2004, the complainant's mother fell pregnant with their first child. Their second child was born in 2006. That year they purchased land at Aldershot and subsequently built a house. They married in 2007.
- [103]
After the birth of their first child, the appellant observed the complainant's mother massage the child's legs and other parts of their body. She said it was important to use cream. It helped with bonding and dry skin. The complainant's mother showed him how to do it. Thereafter whenever he bathed and dressed the children he would use cream. It was a practice he adopted with each child until about the age of about 18 months.
- [104]
The appellant worked long hours as a truck driver. When he arrived home, all of the children would give him a cuddle and a kiss. He would kiss the children either on the forehead or on the cheek. He would play games with them, such as chasey and water fights. On occasions, he would play a joking game called slobbering kisses. It was a really sloppy kiss on the cheek. He denied ever putting his tongue out and touching the tongue of the child. His relationship with the complainant was "good, really close".[27] The appellant had problems in his relationship with his wife's other son.
- [105]
When they lived in Archer Drive, the complainant started to spend a lot of time in her bedroom, as did her brother. The appellant would go into her bedroom if the complainant did not come out to greet him when he came home from work. The bedroom door was shut. He would always knock. He would sit on the bed and chat, or lie next to her, stomach down. He would talk for five minutes or so, before giving her a kiss on the cheek and going out of the bedroom. He denied ever spooning the complainant or putting his legs between her legs.
- [106]
In early 2013, they started to experience problems with the complainant's behaviour. She was referred to a psychologist at Youth Mental Health Service, Hervey Bay. The appellant did not attend the initial sessions with the psychologist. Later, he did attend several sessions with his wife. The purpose of those sessions was to understand the complainant more in order to help their relationship. The appellant learned the complainant was conveying inappropriate communications to boys on her iPad or iPhone. The psychologist gave advice to monitor the complainant's Facebook and to limit her use of the telephone. They had a practice of taking her telephone at 7.00 at night. They adopted the same practice with the other children. The appellant did not spend up to an hour and a half going through the complainant's telephone. He accessed it once a week or fortnight because of the concern about messages found previously. The complainant's mother accessed it just as frequently.
- [107]
There were three occasions the appellant threw water over the complainant when she was in the bathroom at Archer Drive. The first occasion was in 2013, when the complainant was about 14 years of age. It was around dinner time and the complainant was still in the shower. The appellant said to his wife he would get the complainant out. He got a jug of water out of the fridge, filled it up with ice, opened the bathroom door 10 to 15 cms, just enough to put his arm through and "chucked" it over the top of the shower cubicle. The bathroom door restricted the capacity to open the shower door. He heard the complainant scream because the water was icy cold. The appellant returned to the dining area, sat down and started eating dinner. His wife said "that was mean".[28] The appellant accepted the complainant had a practice of saying she was going to have a shower.
- [108]
The second occasion was a couple of weeks to a month later. He did it to get the complainant back. He had been in the shower when the complainant came in with a cup of water and threw it on him to get back for the earlier occasion. He took a cup, filled it with water and ice, walked down the hallway, opened the bathroom door just enough to get his arm in the bathroom and threw it back over the top of the shower. He denied ever throwing the water at the complainant's breast area or her vaginal area. He denied seeing the complainant in the shower on the second occasion. He did it as a running joke between them. His wife did not say anything to him on this occasion.
- [109]
On the third occasion, the appellant again took a cup filled with ice and water, opened the bathroom door just enough to put his arm in and threw it over the complainant. He did not open the door of the shower on this occasion. He did not throw the water at the complainant's breast or vaginal area. He did not see any part of her body. On this occasion, his wife said "you shouldn't be doing that, she is a teenager," to which he replied "it's only a joke". That was the last time he threw water on the complainant.
- [110]
The appellant denied ever going into the bathroom at Aldershot to look at the complainant when she was in the shower. When that house was completed in 2009, a lock was put on the inside of the bathroom door by the builders. When they returned to occupy the home in June 2014 the same door handle with the lock was on the bathroom door. It was depicted in the photograph shown to the complainant. The appellant arranged for that photograph to be taken by a family friend after he had been arrested for these offences. Three doors locked in the house; their bedroom, the toilet and the bathroom.
- [111]
The appellant denied ever tongue kissing the complainant. He would give the complainant massages every couple of months. The complainant had pain in her back. She had also developed a red lump in the hip area, near the belt line. On these occasions, the complainant's back, shoulder or neck were hurting and she asked him to massage her. He had done so from around 2013 up until October 2015 when he separated from his wife. He did not massage the complainant after that separation.
- [112]
He would massage the complainant in the lounge room or in her bedroom. The complainant was wearing bike shorts and a bra or boob tube underneath a t-shirt. He would massage her shoulder for five or ten minutes. When he massaged her back, she would lie on her stomach with her clothes on. On one occasion he used olive oil. He could not remember using cream. He only used olive oil on her shoulder. He did not ever touch her breast or vagina whilst giving her massages. The appellant used his thumbs, backwards and forwards in a circle sort of motion. He only ever massaged her hip area once.
- [113]
There was an occasion when he massaged the complainant's ribs, in the lounge room. He denied ever sitting on the complainant's backside. He weighed about 105 kilos and would have squashed her. The complainant was wearing her boob tube, a t-shirt and bike pants. He did not touch the complainant's breasts or cause her to expose her breasts or lift up her boob tube. He did not touch her vaginal area. He denied ever pulling down her underwear over her bottom to massage her bottom or having his thumbs on her vaginal area. He denied any occasion, that the complainant's breasts were exposed, or ever giving the complainant a massage in her bedroom when she had no bra on. He denied ever kissing the complainant on her lips, or saying if she were not his daughter, "he would have sex with her".
- [114]
In about mid-2014, the complainant had become inseparable from 'Jack', who lived across the road. She was pushing the boundaries and not doing her household chores. The appellant went to see the psychologist with his wife about Jack. The complainant was denying an intimate relationship with Jack but they learnt that was not correct. Eventually, the complainant told them Jack and she were dating and having sex. His wife raised whether it was protected sex. They said if they were going to do that, they had to do is safely. There was a concern the complainant may have fallen pregnant. At one point, there was a meeting between the respective parents and the complainant and Jack.
- [115]
There was an occasion when the appellant drove the complainant from Brisbane to Aldershot to attend a party. They stayed at a friend's house in Brisbane. It had two bedrooms. One was used for storage. The complainant went to bed at about 10.00 pm in the bedroom. The appellant slept in the same bed. Both were clothed. When he went towards the bedroom the complainant asked if he was going to sleep in there tonight. He said there was nowhere else. She said "oh, that's alright".[29] He did not spoon her at any stage. He did not put his arm over her side and touch her breasts.
- [116]
On the trip back home the next day, the appellant had a general conversation with the complainant about the party. He asked if there were going to be boys at the party. He asked the complainant if she was seeing anyone. She said yes, a boy in Hervey Bay. She had been sleeping with him. He asked the complainant if she was using protection. The complainant said "no, he used me". The complainant asked him not to tell her mother. Later, he took the complainant to the party. He spoke to the mother at that residence. They exchanged phone numbers in case the complainant's blood went low.
- [117]
The appellant separated from his wife after an incident with the complainant's brother. He was trying to discipline him and became frustrated and punched the brother in the arm. He told his wife he could not do this anymore and left the house. When he returned after a few hours, he apologised to the complainant's brother. The appellant remained in the house for another two weeks before he moved into a caravan park. The complainant came to stay with him, on one occasion by herself and on another occasion with the other children. She only stayed for one night. He also saw the complainant at Christmas 2015. There was no problem in their relationship.
- [118]
In cross examination, the appellant accepted he had previously worked as a pre-school teacher's aide. He was aware of age appropriate behaviour. He met the complainant's mother while he was the complainant's teacher's aide. Thereafter he assumed the role of the complainant's father, responsible for caring for her at home and for her discipline. He spent a lot of time with her while she was growing up. They had a close relationship.
- [119]
Part of his role was teaching the complainant appropriate interaction with boys. There was a concern whether she was aware of appropriate behaviour with boys when she was about 14 to 16 years. She was having problems with what was right and wrong in certain behavioural situations. There was a lot of physical contact between him and the complainant. She trusted him. If he told her not to tell her mother something she would listen to him. He denied ever saying that to the complainant.
- [120]
The appellant accepted there were occasions at Archer Drive when he would go into the complainant's bedroom when there was just the complainant in the room. He would close the door behind him, but only when the complainant asked him to do so. On occasions, he would lie on the bed beside her when she was a developing young girl aged 14. They were physically close to each other but he denied that in that position he cuddled the complainant, or put his hands on her stomach or pushed his legs between her legs, or pressed his body against her body.
- [121]
On three occasions whilst at Archer Drive, he went in to the bathroom, knowing the complainant was in the shower. He only stopped doing so after his wife told him to stop. In hindsight, he accepted what he did was wrong and not appropriate. It was only meant as a joke. He would never have done that to the complainant's 14 year old friends, if they came over to the house. He did not walk into the bathroom at any stage. When the complainant came out of the bathroom, after he threw the cold water over her, she laughed and said "I'll get you back".[30] He knew she was naked on all these occasions.
- [122]
It was the complainant's habit to tell him and his wife that she was going to have a shower. He denied the complainant ever said on those occasions "don't let the kids come in".[31] The complainant told them she was having a shower as part of her autism. The complainant had a routine even when she went to bed at night. She was compulsive. She had to kiss the appellant first goodnight and her mother last. If they joked around to take her out of her routine, she had to go back to it until she got it right.
- [123]
Whilst at Aldershot, there was at least one occasion when he was in his bedroom with the complainant and two of his children. He did not think there was ever an occasion when the children were kidding about the appellant kissing their mother. He denied ever sticking his tongue out and putting it in the complainant's mouth. He denied ever spooning the complainant. That would be indecent. Massaging the complainant around the vaginal area would be indecent, as would massaging her breasts.
- [124]
There were a number of massages he gave to the complainant at Aldershot. On some occasions, he massaged her in the bedroom. On other occasions, in the lounge room. He denied being sexually interested in his step daughter. He denied touching her vagina with his thumbs. He denied kissing the complainant on the mouth and saying "I love you". He denied the complainant, on any occasion during these massages, told him to stop. The complainant knew what was not appropriate for a father to do to a daughter. He accepted the complainant needed expert help to teach her what was appropriate with boys, but denied he took advantage of that aspect because he had a sexual interest in her.
- [125]
The appellant denied being intimate with the complainant at his friend's house in Brisbane. He denied asking the complainant if she had ever come or would let him make her come. He denied ever talking to the complainant about having anal sex with his wife and about sexual positions. He denied ever saying to her that if she were not his daughter, he would have sex with her. The appellant had never spoken to the complainant about anal sex, except one time in 2014, when the complainant asked him because Jack was asking the complainant about it. He asked her to talk to her mother about it. The complainant said whenever she spoke to her mother about sex, she got angry at the complainant. He replied, "well, I'd prefer you not to, but if you do, make sure you use protection, for say, you know, no diseases or anything like that. Just be safe."[32]
Other witnesses
- [126]
PN, the appellant's sister, gave evidence that the appellant was a normal dad in his interaction with his children. His relationship with the complainant was just like a loving father/daughter relationship. The complainant came to stay with them at Christmas 2015. The appellant was present during that stay. Later she saw the appellant in Maryborough. The complainant was present at that time. The complainant related well with the appellant during that visit.
- [127]
TQ gave evidence that he had known the appellant for about 10 years. He also knew the appellant's children, including the complainant and her brother. He had regular contact with the appellant when he was at Archer Drive and at Aldershot. The appellant was very close to his children. TQ had stayed at Aldershot on a number of occasions. The bathroom door had a lock. He used that lock when he had a shower.
- [128]
On 9 January 2016, the appellant asked TQ to accompany him to Tweed Heads to pick up the complainant. They returned to TQ's house in Brisbane at around 7 or 8 o'clock at night. It was a small, two bedroom house. Only one was set up as a bedroom. The complainant was given the option of sleeping in the bedroom. The complainant said it was okay for the appellant to come into the bed with her.
- [129]
In cross examination, TQ accepted his recollection was that the appellant and his family lived continuously at Aldershot from 2009. He could not recall a period, after they built the house at Aldershot when they lived at Hervey Bay. His recollection was that they lived at Hervey Bay before building the house at Aldershot. He was definite the bathroom door at Aldershot had a lock on it. When you have a shower it is common place for the shower door to have a lock on it. He had to lock the door as the children were running rampant.
- [130]
TF gave evidence that she had known the appellant for five years. She first met him in 2013. She attended the appellant's house from time to time because her child became friends with the appellant's children. She described the appellant as a "pretty good dad".[33] After the appellant moved to Aldershot they did not see him as frequently but maintained their friendship. She and her husband had stayed at Aldershot on two occasions. They helped build a bedroom for the complainant out of the garage in 2014. They later went back to assist in building a retaining wall in 2015.
- [131]
At Aldershot she had a shower in the bathroom. The bathroom door had a privacy lock. It had a handle that flicked either left or right to either lock or unlock. The bathroom lock was in the same condition each time she stayed at the house. TF was asked by the appellant in 2016 to take a photograph of the bathroom door and lock at Aldershot. She took the photographs tendered in evidence.
- [132]
In cross examination, TF accepted she had only stayed at Aldershot on a few days in 2014 and 2015. She was asked by the appellant to take the photograph of the bathroom door and handle after the appellant had been charged with criminal offences. She did not accept that is why she remembered the door lock. The children in the household were on the spectrum of having autism. They knew no boundaries. You needed to lock the bathroom door when showering because otherwise people would come in. Her recollection was that all five rooms inside the house had locks on them.
Appellant's submissions
- [133]
The appellant submits the verdicts of the jury on counts 5 and 6 are unreasonable on the ground that the complainant obtained treatment from a psychologist for a significant period of time in respect of sensitive issues, but raised no complaint with the psychologist at that time. It was only after the ending of the marital relationship and the incident involving the complainant's brother, that the complainant raised these allegations with the psychologist. Further, the steps taken by the appellant and his wife to limit access to the complainant's iPhone and internet, were not demonstrative of a sexual interest by the appellant in the complainant. They were consistent with genuine concern for her welfare, in circumstances where the complainant had a good relationship with the appellant and would seek him out for comfort and advice.
- [134]
The verdicts given on counts 5 and 6 must be viewed in the context of a household which involved regular practical joking. It was in that context that the allegations in counts 2, 3 and 4 had occurred, in respect of which the appellant, in evidence, conceded in retrospect, it was not appropriate, but said it was a joke and not done out of any sexual interest towards the complainant.
- [135]
Further, counts 5 and 6, which on the appellant's case did not occur, were alleged to have taken place at Aldershot where there was evidence there was an internal lock on the bathroom door. That evidence was supported by the appellant, TQ and TF, as well as the photographs. The complainant's own evidence on counts 5 and 6 was that the appellant opened the door, but did not enter the bathroom. The complainant gave evidence that the doorhandle was a normal round doorhandle and she was 100 per cent certain it had no locking device. There was no complaint made by the complainant to the psychologist of the offending, the subject of counts 5 and 6. Having regard to the nature of the professional relationship, it would have been expected the complainant would disclose such matters to the treating psychologist. Instead, the disclosure occurred in the context of an acrimonious separation between the appellant and his wife.
- [136]
It is also significant that the jury acquitted the appellant in respect of all counts pertaining to the massage incidents, which must have involved a rejection of the complainant's credit. There was evidence of alleged discreditable conduct, including a remark made by the appellant that if the complainant were not his daughter he would have sex with her, and a conversation in the truck about sex. The jury's acquittal as to the count relative to the truck is indicative of the jury not accepting that conversation could amount to discreditable conduct by the appellant.
- [137]
Finally, the appellant relies upon the fact that the jury, in error, observed a photograph being placed on the viewer by defence counsel and subsequently requested access to that photograph, suggesting the jury may have been influenced by it in returning a verdict of guilty on counts 5 and 6. Evidence of the complainant's mother about the appellant still showering with the complainant may also have impacted on those verdicts.
- [138]
The appellant submits the verdicts on counts 5 and 6 were inconsistent with the verdicts of not guilty on all remaining counts. The complainant's mother had given evidence supportive of the three incidents of the appellant having thrown water over the complainant whilst she was showering in the residence at Archer Drive, yet the jury acquitted the appellant on those counts. Although counts 5 and 6 related to a different residence, there was inconsistency in the complainant's evidence having regard to the evidence of a lock on the bathroom door. The complainant conceded in cross examination that if there was a lock on the bathroom door at Aldershot, she would have utilised it to prevent the defendant from coming into the bathroom. There was evidence the lock did exist and the appellant denied entering the bathroom at Aldershot.
- [139]
The differing quality of the evidence in respect of each count does not explain the variation on the jury's verdict. The variation was also not explained by the existence of corroboration on counts 5 and 6. Nor are the differing verdicts explained by a merciful verdict. The placing of the photograph on the visualiser in error, by defence, and the redirection by the trial judge, which referred to the complainant's mother's evidence of the appellant still showering with the complainant, are important features explaining the differing verdicts, even though there is no criticism of the trial judge in relation to how these issues arose during the course of the trial.
Respondent's submissions
- [140]
The respondent submits that the verdicts of the jury on counts 5 and 6 are not unreasonable. The evidence did not compel a conclusion that there was a lock on the bathroom door at Aldershot and it was not necessary for the jury to determine that issue. What was an issue on counts 5 and 6 was whether they accepted the appellant opened the bathroom door for the purpose of observing the complainant in the shower. It was open to the jury to accept the complainant's evidence that the appellant opened the bathroom door to observe her naked body. The complainant provided a consistent account of those offences. Her evidence was supported by her mother's evidence. The complainant's credit generally was also bolstered by the preliminary complaint.
- [141]
The respondent submits it was open to the jury to find beyond reasonable doubt that the appellant's purpose in opening the bathroom door was to observe the complainant showering. The appellant knew the complainant was in the shower before he opened the door. The reliability of the complainant's account, the lateness of the complaint and the circumstances in which that complaint were made were all matters for the jury. They did not compel a rejection of the complainant's evidence, nor did the fact that the complainant did not complain of this specific conduct to the psychologist or the neighbour.
- [142]
The respondent submits the fact the mother was inadvertently shown a photograph on the visualiser, did not give rise to a miscarriage of justice and there is no basis to support a conclusion it affected the reasonableness of the jury's verdict on counts 5 and 6. There is also no basis to conclude that the reference by the complainant's mother, in cross examination, that the appellant was still showering with the complainant at Archer Drive, gave rise to a miscarriage of justice or affected the reasonableness of the jury's verdict. That conduct occurred in a different house to counts 5 and 6 and at an earlier time, when the complainant may have been much younger and required supervision or assistance.
- [143]
The respondent submits the verdicts on counts 5 and 6 were not inconsistent with the verdicts on the remaining counts. The complainant's evidence in respect of counts 5 and 6 was corroborated by the complainant's mother, which set it apart from the other offences. The appellant also accepted he had, on occasions, entered the bathroom when the complainant was showering, although he denied doing so on the occasions, the subject of counts 5 and 6.
- [144]
The acquittals on counts 2, 3 and 4 are explicable by reason of the jury not being satisfied that the throwing of the water was for the purpose of observing the complainant, rather than a practical joke. The acquittals on counts 1 and 13 may also been explained by the jury having a reasonable doubt as to whether that conduct was indecent, given the relationship between the appellant and the complainant. The acquittal on counts 7 and 9, are explicable as they related to conduct in which the complainant's evidence was not supported by other witnesses or bolstered by preliminary complaint evidence. Counts 8, 10, 11 and 12 involve circumstances where the complainant accepted she had requested massages and continued to accept massages after these events. Against that background, the jury may not have been satisfied beyond reasonable doubt there had been a touching of the complainant's vagina or that the other touching was indecent. Counts 11 and 12 also involved touching, in circumstances where there were inconsistencies in the complainant's evidence and her preliminary complaints.
- [145]
The respondent submits that having regard to these differences in the quality of the complainant's evidence, and the presence or absence of corroborative and bolstering evidence, there was a rational, logical basis for the different verdicts in those circumstances. The differing verdicts are consistent with the jury properly considering each charge separately.
Unreasonable verdict
- [146]
A determination of whether the verdicts on counts 5 and 6 are unreasonable and cannot be supported having regard to the evidence, requires an independent review of the record to determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant's guilt of each of those counts. In doing so, special respect and legitimacy must be afforded to the jury's verdict.[34] Setting aside a jury's verdict is not to be taken without particular regard to the advantage enjoyed by the jury in seeing and hearing witnesses called at trial.[35]
- [147]
Evidence of the appellant having, on two occasions, opened the bathroom door at Aldershot and looked at the complainant when she was showering, was given specifically by the complainant in her interview with police and subsequently at trial. That account was not materially affected in cross-examination. Even when confronted with a photograph of what was said to be a lock on the bathroom door, the complainant maintained the incidents had occurred and the bathroom door was incapable of locking at the time of each incident.
- [148]
The complainant's account was supported in material respects by her mother's evidence. The complainant's mother gave evidence of an occasion at Aldershot when she observed the appellant walk to the bathroom door, after the complainant had informed them she was going to shower. The mother heard the complainant screaming "get out". She could hear water hitting the shower screen and floor. The complainant's mother also confirmed that at the time the bathroom door was not fitted with a lock.
- [149]
Whilst there was no complaint made by the complainant to DG, consistent with the events the subject of counts 5 and 6, or indeed any recount of such events to the psychologist, the complainant's mother's evidence was significant in respect of these counts. The jury was entitled to accept that evidence as compelling evidence for two reasons. First, it directly supported the complainant's account of the appellant having opened the bathroom door when she was in the shower at Aldershot. Second, the only explanation for the appellant's conduct in opening the bathroom door on the complainant when he knew she was showering, was to observe the complainant in her naked state. Unlike counts 2, 3 and 4, there was no other explanation for the appellant's conduct, like engaging in a practical joke of throwing cold water over the complainant.
- [150]
The acquittals of the appellant of all of the remaining counts does not mean the jury did not accept the reliability of the complainant's evidence. It was open to the jury to have accepted the complainant's evidence as reliable and accurate, but still not have been satisfied beyond reasonable doubt of the appellant's guilt of the remaining counts.
- [151]
The jury may have been satisfied the events, the subject of counts 1, 2, 3 and 4, had taken place, but not have been satisfied beyond reasonable doubt, that the conduct constituted indecent dealing, in respect of count 1, or observations in breach of privacy in respect of counts 2, 3, and 4. The complainant accepted the appellant would often visit her in her bedroom to see how she was, and would engage in practical jokes. The jury may have given the appellant the benefit of the doubt as to whether there was a criminal aspect to his conduct, sufficient to found each of those counts.
- [152]
Similarly, the jury may have been satisfied that the events, the subject of counts 7, 9 and 13, occurred as recounted by the complainant, but not have been satisfied, having regard to the context in which each of that conduct had taken place, that it amounted to indecent dealing in all of the circumstances.
- [153]
Those explanations would not account for the jury's verdicts in counts 8, 10, 11 and 12. Each of those counts involved specific allegations of touching of the complainant's bottom and vagina (counts 8 and 10) or breasts (counts 11 and 12). If the jury accepted the complainant's evidence there could be no doubt the conduct was indecent. The complainant had given evidence not merely of the touching of those areas. She had given evidence of a deliberateness, with an aspect of pleasuring the complainant.
- [154]
However, there were features of the complainant's evidence which explain why the jury, whilst accepting the complainant as generally reliable and credible, may have doubted the accuracy of the complainant's evidence on these counts. Those features were the complainant's own evidence that she continued to accept massages from the appellant after these events and that she did not see anything abnormal in the circumstances of these massages until after the appellant "crossed the line", in respect of the conversations about sexual conduct during the trip in January 2016. The jury may properly have concluded, that in the absence of evidence independent of the complainant's account, to establish the occurrence of these events, the appellant ought to be given the benefit of the doubt.
- [155]
Such a conclusion explains the jury's satisfaction beyond reasonable doubt of the appellant's guilt in counts 5 and 6. The occurrence of those two counts was supported by evidence independent of the complainant. That evidence arose from the complainant's mother's account of having observed the appellant interrupt the complainant whilst she was showering at Aldershot. An acceptance of the complainant's mother's evidence in that respect was not diminished by evidence of the existence of a lock on the bathroom door at Aldershot. The complainant's mother gave an account as to why a photograph taken many months after the incidents in question might have revealed the existence of a lock. In those circumstances, it was open to the jury to reject the accuracy of the evidence given by both TQ and TF as to the existence of a lock at that time.
- [156]
An acceptance of the complainant's evidence in respect of the events of counts 5 and 6 and of the complainant's mother's evidence relevant to those counts, was not materially affected by the jury inadvertently being shown a photograph on the visualiser during the mother's evidence. The affidavit evidence goes no further than to suggest that in the course of deliberations the jury made an enquiry about the existence of other photographs. That enquiry did not extend to a formal request of the trial judge. There is no basis to conclude that a brief exposure to a photograph not admitted into evidence materially affected the acceptance of the reliability of the account given by the complainant and her mother in respect of the events in counts 5 and 6.
- [157]
Similarly, the fact the complainant's mother gave evidence the appellant continued to shower with the complainant whilst they were living in Archer Drive, could not materially have affected the jury's acceptance of the complainant's evidence in respect of events at Aldershot, having regard to the independent support afforded by her mother. That evidence related to events at a separate residence when the complainant was younger. Importantly, the jury acquitted the appellant of the counts relating to showering in that residence.
- [158]
Having considered the whole of the record, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of each of counts 5 and 6. The verdict of the jury were not unreasonable. This ground fails.
Inconsistent verdicts
- [159]
To succeed on this ground, it is necessary for the appellant to establish that no reasonable jury, properly applying its mind to the facts of the case, could have arrived at these differing verdicts. This is a conclusion not lightly reached, having regard to the need to afford appropriate respect to the jury's constitutional role in determining guilt or innocence at trial.[36] As was said in MacKenzie v The Queen:[37]
"….. [I]f there is a proper way by which the appellate Court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."
- [160]
Verdicts may rationally differ for a variety of reasons. Some of those grounds were identified by Holmes J (as the Chief Justice then was), in R v Smillie:[38]
"The jury may have found the quality of the crucial witness' evidence variable while accepting it as generally truthful. For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others. A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection. The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood in some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness' general honesty…." [citation omitted]
- [161]
Verdicts of acquittal on some counts also do not necessarily indicate a rejection of a complainant's evidence. They might show only that the jury was not satisfied to the criminal standard in respect of those acts.[39]
- [162]
In the present case, there was a rational, logical explanation for the jury's verdicts of guilty on counts 5 and 6, but not guilty on each of the remaining counts. That rational, logical explanation related to the quality of the evidence on counts 5 and 6. On each of those counts, the complainant's evidence was supported by the complainant's mother. For the reasons given above, the mother's evidence was significant, allowing the jury to be satisfied beyond reasonable doubt, not only as to the event of the appellant having opened the bathroom door, but as to the circumstance in which the appellant did so, for the purpose of observing the naked complainant.
- [163]
Contrary to the state of the evidence in respect of counts 5 and 6, there were, for the reasons referred to above, reasons why the jury may have afforded the appellant the benefit of the doubt in respect of each of the remaining counts.
- [164]
The verdicts of the jury on counts 5 and 6 were not inconsistent. There is no basis to justify this court setting aside those guilty verdicts. This ground also fails.
- [165]
The appellant has failed to establish any basis upon which this court could properly intervene to set aside the guilty verdicts on counts 5 and 6.
- [166]
I would order:
- Leave be granted to adduce the further evidence.
- The appeal be dismissed.
[34]MFA v The Queen (2002) 213 CLR 606 at [59]; [2002] HCA 53.
[35]R v Baden-Clay (2016) 258 CLR 308 at 329; [2016] HCA 35.
[36]R v GAN [2012] QCA 50 at [37-40].
[37] (1996) 190 CLR 348 at 367 per Gaudron, Gummow and Kirby JJ; [1996] HCA 35.
[38] [2002] QCA 341 at [28]; (2002) 134 A Crim R 100.
[39]R v SBL [2009] QCA 130 at [32].
Editorial Notes
- Published Case Name:
R v SDD
- Shortened Case Name:
R v SDD
- Court:
- Judge(s):
Sofronoff P, Gotterson JA, Boddice J
19 Oct 2018
Litigation History
|Citation or File
|Primary Judgment
|DC72/16 (No Citation)
|09 Feb 2018
|Date of Conviction and Sentence (Reid DCJ).
|Appeal Determined (QCA)
|19 Oct 2018
|Leave to adduce further evidence granted; appeal against conviction dismissed: Sofronoff P and Gotterson JA and Boddice J.