DISTRICT COURT OF QUEENSLAND
CITATION:
R v CR [2020] QDC 269
PARTIES:
THE QUEEN
(Crown)
v
CR
(Defendant)
FILE NO:
Ind 318/20
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Beenleigh
DELIVERED ON:
23 October 2020
DELIVERED AT:
Beenleigh
HEARING DATE:
21 – 23 September 2020
JUDGE:
Chowdhury DCJ
ORDER:
Count 1 (Maintaining a sexual relationship with a child): GUILTY
Count 2 (Indecent treatment of a child under 16): GUILTY
Count 3 (Rape): GUILTY
Count 4 (Rape): GUILTY
Count 5 (Rape): NOT GUILTY
Alternatively
Count 5 (Carnal knowledge of a child under 16): GUILTY
Count 6 (Carnal knowledge of a child under 16, under care): GUILTY
Count 8 (Carnal knowledge of a child under 16, under care): NOT GUILTY
Count 9 (Carnal knowledge of a child under 16, under care): NOT GUILTY
Count 11 (Carnal knowledge of a child under 16): GUILTY
Count 12 (Rape): NOT GUILTY
Count 13 (Rape): NOT GUILTY
CATCHWORDS:
SEXUAL OFFENCES – TRIAL BY JUDGE ALONE
LEGISLATION:
Criminal Code 1899 (Qld)
CASES:
Longman v The Queen (1989) 168 CLR 79
R v Markuleski (2001) 52 NSWLR 82
R v Sunderland [2020] QCA 156
R v UC [2008] QCA 194
Robinson v The Queen (1999) 197 CLR 162
COUNSEL: C. Birkett for the Crown
M Bonasia for the defendant
SOLICITORS: Director of Public Prosecutions for the Crown
McMillan Criminal Law for the defendant
Introduction
The accused CR is charged with the following offences:
Count 1 – that between 12 August 2001 and 3 July 2005 at Jimboomba and elsewhere in the State of Queensland [the accused] being an adult, maintained an unlawful sexual relationship with [STC], a child under 16 years.
Count 2 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] unlawfully and indecently dealt with [STC], a child under 16 years.
Count 3 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].
Count 4 – That on a date unknown between 12 August 2001 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].
Count 5 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] raped [STC].
Count 6 – That on a date unknown between 31 December 2002 and 3 July 2005 at Crestmead in the State of Queensland [the accused] had unlawful carnal knowledge of [STC], a child under 16 years, and [the accused] had [STC] under his care.
Count 7 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.
Count 8 – that on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba or elsewhere in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years, and [the accused] had [STC] under his care.
Count 9 – That on a date unknown between 31 December 2002 and 3 July 2005 at Undullah or elsewhere in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years and [the accused] had [STC] under his care.
Count 10 – That on a date unknown between 31 December 2002 and 3 July 2005 at Jimboomba in the State of Queensland [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.
Count 11 – That on a date unknown between 31 December 2002 and 3 July 2005 at Calliope in the State of Queensland, [the accused] had unlawful carnal knowledge of [STC] a child under 16 years.
Count 12 – That on a date unknown between 2 July 2005 and 3 July 2007 at Cedar Grove in the State of Queensland [the accused] raped [STC].
Count 13 – That on a date unknown between 2 July 2005 and 3 July 2007 at Cedar Grove in the State of Queensland [the accused] raped [STC].
The accused pleaded not-guilty to each of the 13 charges. A trial proceeded before me as a trial by Judge alone.
The particulars
The following particulars were provided in writing at the commencement of the trial, and were marked for identification “A”:
Count 1: The complainant describes sexual offending by the defendant from about the age of 13 until she turned 16. [The accused] maintained a sexual relationship with [STC]. The relationship included the accused making contact with the complainant’s vagina and/or penetrating her vagina with his finger/s and/or penetrating her vagina with his penis.
Count 2: The complainant describes this as being the first incident of sexual contact, she was sleeping over at the defendant’s house. The accused’s hand made contact with the complainant’s vagina.
Count 3: The complainant describes sleeping over in the front spare room at the defendant’s house when he came in and offended against her. He penetrated her vagina with his finger/s.
Count 4: The complainant describes a time when she was 13 sleeping in the dining room in Hill Street. The accused penetrated the complainant’s vagina with his penis.
Count 5: The complainant describes an occasion when the defendant raped her while she was menstruating. He penetrated her vagina with his penis.
Count 6: The complainant describes an occasion where the accused drove her home after he refereed a soccer game. He stopped at his work on the way home, and penetrated the complainant’s vagina with his penis.
Count 7: The complainant describes this as being the last particular occasion she can remember in 2003. She describes it being winter, she was in his spare room, he came in, and had intercourse with her.
Count 8: The complainant describes an occasion where the defendant was driving her to work at McDonald’s and he had intercourse with her; he was wearing a fluorescent jacket.
Count 9: The complainant describes and occasion when the accused was driving her to her friend’s house. He pulled over on the side of the road at a spot he didn’t usually stop at, and had intercourse with her.
Count 10: The complainant describes an occasion the pair were having intercourse in the defendant’s house in the spare room. They both heard a noise, paused, the defendant left, but returned a short time later and continued having intercourse.
Count 11: The complainant describes an occasion when she and her family went camping at a property in the Gladstone region. She describes an incident where her and the defendant had intercourse in her tent.
Count 12: The complainant describes an occasion where she was in a caravan, and she woke up to the defendant with his penis in her mouth, and he ejaculated inside her mouth.
Count 13: The complainant describes an occasion the accused put his penis in her anus. She initially allowed him to try, told him no, and that she didn’t want it anymore, but the defendant put his penis back in her anus.
Evidence of the complainant
The complainant gave evidence that she met the accused through her mother. Her mother met the accused online, and when she was about 10 or 11 years of age, her mother and the rest of her family went to the accused’s house in Jimboomba, in particular in Hill Street. At that time she and her family were living in Murwillumbah in New South Wales.
The complainant gave evidence of her mother’s name, and her three brothers. Around this time the complainant’s parents separated, and her mother formed a relationship with the accused. She couldn’t recall when her parents separated, she remembered it was about six months into Year 7 which was high school in New South Wales.
As a result of the separation the complainant, her mother and brothers moved to Queensland and stayed in Elimbah with a friend of the mother’s. They eventually moved to an address in Samantha Street, Boronia Heights. While living at that house she would regularly see the accused, a couple of times a week. On occasions she and her family would go and stay at his house in Hill Street, Jimboomba.
The complainant said that when she and her family stayed at the defendant’s house in Hill Street, Jimboomba, she would sleep in a room in which there were bunk beds; she would sleep on the bottom bunk. Her brother slept in a spare room at the end of the house, while her mother slept in the accused’s bed. On occasions the accused’s children would come over to stay, every second weekend she believed.
The complainant described her relationship with the accused as:
“he was always nice to me, like, he was – he was nice. Like, he sort of, I guess, treated us - yeah, he was nice, he – he wasn’t mean, he was polite and nice.”[1]
[1]R1-12, l 40.
The complainant went on to describe that the accused would tickle her and always play practical jokes and play games with her. The complainant said that the tickling games changed as time went on. She could not remember exactly how old she was, but it was not long after she had met him, “maybe a few months after we’d met him that the tickling began. And then a few months after that, I would say, it – it changed.”[2]
[2]R1-13, l 40.
She said that the tickling changed to “him putting his fingers inside me or on the outside, sort of, of my vagina.”[3]
[3]R1-13, l 42.
The complainant remembered a specific occasion when she was sleeping on the bottom bunk in the front room, before the family moved from New South Wales. For that reason she “often go back to 11 when it first started.”[4] She said that she was asleep, she woke up, the accused told her to be quiet and not to call out, and then put his hand down her pants. She gave the following evidence when asked about the first occasion the accused touched her vagina:
“I would have been wearing my boxer shorts and a sports bra and a shirt and he put his fingers sort of inside my vagina but on the outside. And I – I remember sort of pulling away and moving and sort of saying ‘no’, ‘don’t’. But then as – as he was putting his hands down but then, once was there, I sort of just froze throughout that. And I remember it being sort of painful. He had really rough hands with, like cracks in his fingers.”[5]
[4]R1-14, l 5.
[5]R1-14, l 15.
The complainant said that the accused on this occasion touched her vagina on the skin, but on the outside of her vagina. When asked how old she was at this time, she gave this answer:
“Yeah, I would have been – I – I believe I was about 11. I keep going back to 11, like, 12, but I don’t remember a time that he wasn’t doing it which is why I go back to that age.”[6]
The complainant said that she knew it was the defendant because there was light coming from a computer reflecting through the dining room and kitchen and she could clearly tell it was the accused.
[6]R1-15, l 1.
The complainant then said that after that occasion the touching became
“sort of regular that he would come into my room and – and do that. And during that time, I remember a conversation where he – he told me not to tell anyone and I don’t know that was before the next – so just became a regular thing where he would just put it inside – like, just on the outside, under my underwear”.[7]
She confirmed it became a regular occurrence that the accused would come into her room, put his hand inside her underpants and touch her on the outside of her vagina.
[7]R1-15, l 35.
The complainant then said that this touching occurred “almost every time we stayed at [the accused’s] house.” She then said after that touching occurred for a time, it changed to him actually inserting his finger inside her. She said that that was a matter of months after the touching began. I pause to observe that the incident she described on the bottom bunk before her family had moved from New South Wales to Queensland is the basis of Count 2.
The complainant said she could recall a specific occasion where the accused put his finger inside her vagina. She was again on the bunk bed in the front room, and she was asleep. The accused would stay up late on his computer, and then come into her room when she was asleep. On this occasion he had put his hand down her pants as before, but he progressed and:
“…and he’d come in, and started to put his hands down my pants again. And I remember, sort of, pulling away a bit. I wasn’t consenting at that stage. I believe I said “No,” or “Don’t do that,” or something to that effect. But as he progressed, he actually put his fingers in – finger inside me, and I remember it being – I, sort of, just froze and I was really confused on what was happening on what he was doing and I believe it was then or around then that he actually said to me not to tell anyone, and that my Mum wouldn’t believe me anyway.”[8]
She believed it was the accused’s right hand which was put beneath her shorts, and he put one finger inside her vagina. She described it as painful as “I was still a virgin at that point. I had never been through anything like that.”[9]
[8]R1-17, l 8.
[9]R1-17, l 23.
The complainant said she did not say anything, she just remembered lying there and “freezing”. She thought she may have whimpered, when the finger hurt her. She recalled the defendant saying “Shh, it’s OK.”[10] When asked what the accused was doing with his finger, she said that he was slowly putting it in and out. This incident is the basis of Count 3.
[10]Ra1-17, l 36.
The complainant said that after that incident in Count 3, the penetration of her vagina by the accused with a finger became regular, when she would stay over at his house. She said that at that time she and her family were going to the accused’s house at Jimboomba multiple times a week, but that there might have been some weeks where they did not go until the weekend; and other weeks they would stay for four nights during the week.[11]
[11]R1-19, l 1.
The complainant was asked whether she said anything to the accused when he would come into the bedroom and put a finger inside her vagina. She said:
“I recall saying ‘no’ and ‘don’t’ or things to the effect of that. Like, I didn’t want it to happen before, but it seemed that each time it did, I still froze – like I felt I couldn’t talk.”[12]
[12]R1-19.
When asked if she said or did anything to try and stop it from happening, the complainant said:
“So I’d often say things to the effect of, like, ‘is that mum?’ or, ‘what’s that noise?’ and he would stop, and he would leave the room, and he would walk – then come back a little while later. Sometimes, I guess, if Mum was awake, he wouldn’t come back, but most of the time he did come back a little while later.”[13]
[13]R1-20, l 5.
She recalled that as time went on, the accused would insert two fingers into her vagina.
She recalled a specific occasion when it was hot weather, and she was asleep on lounge cushions. She could not recall if the accused’s children were there. She woke up to the accused on top of her; she was sleeping on her stomach. He pushed her underwear and boxers to the side, and from behind inserted his penis inside her. She recalled him breathing heavily when he did that. She recalled him putting one of his hands over her mouth. This event relates to count 4 on the indictment.
The complainant said that after the accused finished, he got off and she remembered “feeling really wet, like gross, and I went to the bathroom, and when I wiped, there was bits of blood mixed in with other stuff, and at the time, I didn’t really know much about what the other stuff was. But I’d gone to the toilet and wiped a few times, and there was sort of light spotting and – mixed in with blood – mixed in with fluid. It was, like, slimy fluid.”[14]
[14]R1-22.
The complainant was asked how old she was at the time of this incident. She remembered it being well before her 14th birthday, when her family were living in Samantha Street in Boronia Heights.[15]
[15]R1-23, l 15.
From that time on, whenever she and her family stayed over at the accused’s house he would have sexual intercourse with her. She said that that occurred “right up until I was 17 or 18”.[16]
[16]R1-23, l 45.
When asked where else sexual intercourse would occur, she said:
“So it – it occurred in his car at work where he worked on – when it was in the car, it was on the side of the road. So he would drive me – when I was 14 and once I’d got my first job at McDonalds and often we would stay at his house on – on the weekends and he would be working early in the morning. So instead of Mum getting up to take me, he would drive me to work at – sort of 5 or 6 o’clock in the morning on Saturday.”[17]
[17]R1-24, l 5.
The complainant gave evidence of an occasion on her 14th birthday, when she and the family were at the accused’s house in Hill Street, Jimboomba. She was in the shower, and when she was drying herself the accused came into the bathroom. She rushed to put her clothes on, and the accused came in and had a can of whipped cream and sprayed whipped cream up the leg of her pants. The accused made a big joke of it.[18]
[18]R1-24, l 35.
In respect of each occasion of sexual intercourse, she said that he would always ejaculated inside of her.
She recalled a specific occasion when the accused was driving her to work. He pulled off on a service road that ran beside the Mt Lindesay Highway at Jimboomba. She believed the accused was driving the black Falcon. She said that the accused pulled off onto the service road sometime around 4.15am or 4.30am; she was starting work at McDonalds at 5.00am. She recalled this specific occasion because the accused was wearing a “high-vis” bright yellow jacket. When asked how the sexual intercourse took place, the complainant said the following:
“Yeah, so he would just pull over and ask me to get in the backseat of the car, and then just pull my pants down a bit and have sex. By this stage, although I wasn’t 100% consensual with it, it was normal to me, and this was just something that we done. So I wasn’t fighting it each time by then”.[19]
[19]R1-27, l 35.
The complainant said she recalled the specific occasion on the service road when the accused was wearing his “hi-vis” shirt, because when she got to work, there was “cum – all over my underwear, and I had to sort of wash it in the sink at work, and then I used a dryer to try and dry it so I could clean up before I started my shift.”[20]
[20]R1-28, l 4.
The incident that the complainant just described is the basis of count 8 on the indictment.
In respect of count 6, the complainant recalled an occasion after the accused had refereed a soccer match. Her mother and brothers had been at the soccer match, but left in a separate car. At this time, the accused was working at a textile business called Logan Textiles, near Browns Plains. She recalled driving with the accused in his black Falcon to the factory, and he went down a series of gates towards the back of the building. They went inside and she could recall that there were machines working, and the accused turned the lights on. She recalled that he had sexual intercourse with her on the floor of the factory; the accused was wearing black dress pants and as it was cold he had a black puffer jacket on. She said that the accused pulled her to the floor and had sexual intercourse with her. She recalled that he ejaculated inside her because on the drive home, she was really uncomfortable and her underwear was wet from semen. When they got back to the accused’s house in Hill Street, Jimboomba, the accused asked the complainant for her clothes and said he would wash them with his referee gear.[21]
[21]R1-30, l 15.
When asked when this occasion was, she believed it was sometime just before her 14th birthday or just afterwards. She did not believe she had started work by then, but she recalled that Logan Textiles had burned down. She recalled that this incident occurred before the business burned down.
When asked if she consented to having sexual intercourse with the accused on this occasion she said: “I – through – through this period, I – I wasn’t consenting and – and willing do it but I wasn’t fighting it either. It was – it was normal.”[22]
[22]R1-30, l 45.
She recalled an occasion when her family went camping with the accused at his ex-wife’s parents place at Cedar Grove. She recalled that during a day while they were staying at Cedar Grove she couldn’t recall where anyone else was or what anyone was else doing. She recalled being in her mother’s tent that the accused was sharing with her, and had sexual intercourse with her. She recalled that during that Christmas period there was sexual intercourse on two or three occasions.
She recalled an occasion when the family went away for the weekend, or for Christmas or Easter and they stayed at the house of the brother of the accused ex-wife near Gladstone. She recalled staying in a tent, and she recalled having sexual intercourse with the accused. She recalled there was a conversation while she was there about how the accused was caught sleep walking with a pillow, and that made her remember that occasion. She recalled on that occasion they went to Rainbow Beach, and she recalled that the accused received a speeding ticket. She could not recall what year that was or how old she was.
The complainant was “pretty confident” that she was staying in a tent there, and that sexual intercourse took place. However she could recall what year that incident took place, or how old she was.[23]
[23]R1-32, l13.
The complaint gave evidence that she could recall the accused taking her on driving lessons, out the back of Jimboomba and Flagstone. In that area, one of her friends lived on acreage, and he would drop her to that house and pick her up. There are few occasions when he pulled over on the side of the road and he would have sexual intercourse in the car on the side of a dirt road. She said it was Undullah Road. She said that her friend’s house was in between Jimboomba and Flagstone.
The complaint recalled a specific occasion when the accused pulled off on the side of the road that looked like a driveway but wasn’t, before a bridge. She recalled this incident took place in the blue Falcon. She went on to say that that location was a regular location for intercourse, she would get in the back seat, pull her pants down and he would have sexual intercourse with her. She did not recall him taking his pants off, he would always just undo them and pull them down a little bit before inserting his penis into her vagina.[24]
[24]R1-34, l40.
The complainant said that sexual intercourse occurred more than once at this location. When asked if there was any discussion or conversation between her and the accused, she said: “he – not really. There had been, where he said not to tell people and he sort of reiterated that. But by this time – by the time it was getting on, it was just normal to me. Like it was – almost like it – it just happened, it was just something that happened, and he would joke and be smart about things, like buy me things and say ‘you can pay me in sexual favours’, like, when my mum wasn’t around.”[25]
[25]R1-35, l15.
When asked how old she was on these occasions visiting her friend Terry near Flagstone, she said she was “probably between about 15”. She said “I would have been in year 10, 11 or 12; because I went to Flagstone in 10, 11 and 12 and we went to and from that house a lot throughout those years.”[26]
[26]R1-35, l30.
One of the occasions at the side of the road on the way to Terry’s house at Flagstone is said to be the basis of Count 9.
She recalled an occasion between her 15th and 16th birthdays. On this occasion, the accused when driving the complainant to her friend Terry’s house, he pulled over close to Terry’s house, and got in the backseat with the complainant. She then gave the following evidence:
“It was the same, so he just – he pulled in, got in the backseat, didn’t take his clothes off, just pulled it down enough – and I used to remember, what stands a lot to me is, he would always pull the skin back, and I didn’t realise at the time that he wasn’t circumcised. And that – so before – before having sex, he would always have to pull skin back … On his penis, before putting it in.”[27]
[27]R1-36 – R1-37.
The complainant was then asked whether she tried to locate the area where the accused pulled over on a dirt road were looked like a driveway. The complainant said that with the police officer they tried to find it on google maps. An aerial photograph from google maps was shown to the complainant, and she identified an area on the photograph where the accused pulled over his car to have sexual intercourse with her. That photograph became Exhibit 1.
The complainant recalled there was an occasion when the accused moved in with his ex-wife’s parents at their house at Cedar Grove, where they had camped. The accused was living in a caravan on their property, and that the accused had sexual intercourse with her on a number of occasions in the caravan. She could not recall how old she was on those occasions.[28]
[28]R1-38, l 45.
In respect of Count 12, the complainant gave evidence of an occasion when she had driven herself to the Cedar Grove address. There was one time she was sleeping beside the accused on the floor, and she woke up as the accused had put his penis inside her mouth, and ejaculated in her mouth. She recalled spitting the semen into a pair of underwear that was under the bed.[29] She said that that was not the first occasion that he had put his penis into her mouth, but it was the first time that he had ejaculated inside her mouth. When asked to describe this occasion, she said the following:
“I would have woken up just before, but I had been to sleep before. Then he just made out like it was nothing and he just rolled over and went back to sleep and I felt sick. My Mum was in the bed with him, on the other side; and I just felt gross.”[30]
[29]R1-40.
[30]R1-40, l 35.
The complainant could not recall how old she was on this occasion; she thought maybe 16 years old. The complainant said that this was the first and only occasion that the accused ejaculated inside her mouth. This is the basis of Count 12.
The complainant was asked about any other specific occasions when the accused put his penis inside her mouth. She recalled an occasion either just before her sixteenth birthday or after her sixteenth birthday, when her mother had gone to New South Wales. The complainant had a boil on her back. She was in a lot of pain with it and the accused took her to Beaudesert Hospital to get it checked and dressed. When they went to the hospital, the accused told the staff that the complainant was his daughter. She recalled an occasion during the day she was staying at his house that he put his penis inside her mouth.[31]
[31]R1-41.
In respect of the visit to the Beaudesert Hospital, she recalled that they also had sexual intercourse, and she specifically recalled the accused commenting on her weight, and in particular about the front of her vagina. The accused made some comment that she would look so much better if she could lose the weight from around her vagina.[32]
[32]R1-42, l 1.
The complainant also said that during this occasion when she had to go to the Beaudesert Hospital she would have sexual intercourse with the accused in his bedroom.
The complainant said that while her mother was away in New South Wales, she would perform oral sex on the accused before having sexual intercourse. She said that by that stage she was willing to perform oral sex on him.[33]
[33]R1-43, l 25.
The complainant gave evidence of an occasion which is the basis of Count 13. She said the following:
“There was more. So once in the caravan he put his penis in – anal, in my bottom and I’d sort of said ‘no’. Like, I wasn’t willing to do that and he’s like, it – he said, it’ll be OK, and then done a bit and it was very painful. And then I sort of pulled away and he said, ‘you know, try it again.’ And then he tried it again and it was still painful and then when I said that it was painful, he stopped. He didn’t persevere with that. That was in the caravan at – at Cedar Grove. One time he used – again, in the caravan at Cedar Grove, he used a bottle, like a – it was a glass bottle. Not like a beer bottle, it was like a – like a soft drink bottle but with a screw cap and he inserted that into my vagina. He said, ‘let’s try this’, and he inserted that into my vagina and it hurt, obviously, I know, because it had the lid on it. So then he took the lid off and tried it again and then I asked him to stop and – and it stopped.”[34]
[34]R1-43, l 40.
In respect of this occasion, she thought she was probably 16 years of age.[35]
[35]R1-44, l 35.
The complainant gave evidence of an occasion where the accused video-taped them having sexual intercourse. She said by then she was consenting. She said the following:
“And he’d videoed it and – and I remember after he’d videoed it, it was like a handheld video camera and he took – he wiped himself on, like, a towel or a pair of underwear that were in – something at the end of the caravan. And then he took the cassette or the – the thing out of the video player and he put it on top of the cupboard. And then I’d gone inside and – and cleaned up and – and come back out and I left and then, the next time I was there, I went to get – to get it from the top of the cupboard and it wasn’t there. And I don’t know what he done with it or where he put it, but I was concerned because there’s a video of me somewhere and I – I don’t know what happened to it.”[36]
[36]R1-44, l 5.
In respect of Count 5, the complainant gave evidence that she first got her periods when she was in Year 9 at school. She gave evidence that there was an occasion when she had not had her periods for very long, and she was only wearing a pad. She recalled that the accused had sexual intercourse with her in the bed in the spare room of his house, and on this occasion period blood had seeped out to the sheets and onto the bed. When she woke up in the morning, she saw that she’d pulled the covers over to cover the blood stains. On the next occasion she visited the accused’s house the bed and sheets had been cleaned.[37]
[37]R1-45, l 40.
The complainant gave evidence of an occasion when her family were living in the caravan and the accused had a shed which had a pool table, a television, a computer and a refrigerator. She recalled one time being on the floor, watching TV, with the accused when he put his toes beneath a blanket and put them beneath her shorts and put his toes inside her vagina. When asked if it was more than one toe, she thought it was his big toe. She could not recall how old she was.[38]
[38]R1-46, l 35.
She recalled an occasion when there was a barbeque, and the accused walked up behind her and touched her bottom. She could not recall how old she was when that occurred.
She recalled an occasion when the family were living at Gregory Street in Boronia Heights. The complainant and her family and the family next door had gone to Southbank to swim. The accused texted the complainant telling her not to go with her mother. She could not recall the specifics but she did not go with her mother to Southbank; the accused came to the house in Gregory Street and had sexual intercourse with her.[39] After they had intercourse, the accused took her to Grand Plaza at Browns Plains and bought her a new pair of swimmers and board shorts, and then drove the complainant to Southbank to meet up with her mother. The complainant recalled that she was 16 on that occasion but not 17.
[39]R1-48, l 5.
In response to the question about her relationship with the accused, the complainant said the following:
“He – he was always – he was always nice to me. Like, he always – he always referred to me as his daughter. Like, there was myself and – two of my brothers that were around a lot, but he always referred to myself and my youngest brother as – like, as if we were his own kids. And he would buy us stuff, I remember him buying me lots of things. And each time he would give me something it would be ‘you owe me’ or ‘now you owe me’ and that was – he said that a lot. …so he would buy sometimes clothes. Like, he bought that red – red shirt, swimmers. He bought us Christmas presents, sunglasses and stuff like that. He bought me a camera. I don’t recall if he bought me the camera, but he bought me the camera bag. And I remember him turning up with it in the boot of his car. And he’d give – like, when he would drive me to school, like for, for lunch money or bus money he would – he would always had coins around, and he would give me coins and money.”[40]
[40]R1-48 – R1-49.
The complainant said that she moved out of home when she finished school; she was 17 years old. The complainant could not recall the first people she told about the offending; it was either her work colleagues, Allen Walsh and DTS, or her aunt, KW. She recalled that she had started as an apprentice in a furniture-making business, and she was getting a rough time from some of the people at work. She had moved to live in the garage at her aunt, KW’s house. She recalled an occasion when she came home from work, became upset and said to her aunt who was hugging her: “that [CR] had been molesting me or sexually abusing me. I believe it was molesting – since I – and I believe I told her since I was 14.”[41]
[41]R1-50, l 20.
In respect of her co-workers, she was working at a smaller second factory along with Mr Walsh and DTS. She could not recall word for word what she told them, but she remembered saying along the lines of “that he’d been sexually abusing me since I was young”.
The complainant said that she told her friends Elijah Smit and Jessica De Rouw. She recalled telling them that the accused had sexually abused her from a young age. She did not give them any other details than that.[42]
[42]R1-52, 1, 20.
She also said that she spoke to another friend, Jasmine Butler, about what happened. She told her that she was uncomfortable around the accused, and that he had sexually abused her from when she was younger but it was not happening anymore.[43]
[43]R1-53, l 1.
The complainant also told another friend, Kirsty Leuken. She was a friend from Murwillumbah, who had been one of her good friends for a very long time. She recalled telling her that the accused had sexually abused her from a young age. She said the same thing to another school friend from high school, Kelly Morell.
The complainant approached another friend of hers, Amy Thornton, who was a police officer, and asked her advice on what she should do. She recalled speaking to Ms Thornton through Facebook messenger, and that conversation was printed and became Exhibit 2.
The complainant went to the police on 25 January 2018. A formal statement was given, and on 31 March 2018 she took part in a “pre-text phone call” with the accused. The first conversation that was recorded became Exhibit 3.[44] Exhibit 3 also contained a further phone conversation of 21 July 2018.[45]
[44]A transcript of that Exhibit was marked for identification “B”.
[45]A transcript of the second pre-text call was marked for identification “C”.
The complainant said that when she left home, her mother was still in a relationship with the accused. They finally separated in 2014, around the time the complainant had a son.[46]
[46]R1-58, l 40.
In cross-examination of the complainant, the following was established:
·The complainant accepted that she graduated from high school when she turned 17, which was 2006;
·She was aware that the accused had been in the Royal Australian Air Force, and that he had a uniform in his cupboard;
·She accepted that on 3 July 2005 she turned 16;
·In respect of the trip her mother took to New South Wales to visit a friend, Lou Luviana, the complainant said she would have been 15 at that time. She accepted that her mother’s trip to New South Wales could have been in January 2006, by which time she had already turned 16;[47]
[47]1-63, l 35.
·She accepted that the accused had given her a loan to purchase her first car, a 1991 Toyota Corolla, and the agreement was that the complainant would pay back the accused in instalments;
·She agreed that she moved out of her mother’s house when she was 17 years of age, and moved in with her aunt. She accepted that she had an 18th birthday party in 2007, and the accused was invited to the party. She also agreed there was an occasion when she was living with her aunt that the accused came over for dinner;
·She recalled being involved in 2008 in a fund raising event called “relay for life”, and that the accused was also involved in that;
·She could not recall walking part of that event with the accused;[48]
[48]R1-67, l 5.
·She agreed that she turned 21 in 2010, and that she had a 21st birthday party at the accused’s house. Her mother organised the party;
·The complainant recalled purchasing the accused’s Ford BA Falcon in 2010. It was arranged that she would pay the accused the value of the car in cash instalments;
·She recalled that her mother and the accused entered their relationship in about 2014. When asked if she was aware whether her mother was given notice by the accused to move out of the house, she said:
“I wasn’t really involved in any of that. I just had a child and our relationship was very strained.”[49]
[49]R1-69, l 10.
·When asked if she could remember in 2014 confronting the accused about trying to kick her mother out of the house, she said:
“My mum had attempted to commit suicide, and I turned up at that house. And he was walking around, smirking. And, yes, I approached him in the kitchen and told him it was his own fault and he needed to do it. It was his fault that she’d done that, and he should be doing the right thing.”[50]
[50]R1-69, l 20.
·She confirmed that she gave birth to her first child in September 2014;
·When asked if she was aware in 2015 of an application by the accused to the Queensland Civil and Administrative Tribunal to evict her mother, she said:
“I was informed that all my family had been locked up because he had – they turned up in a big kerfuffle broke out. So I had to call the police station to find out why they were – what was going on.”
She said she did not know the context of “how that all went down”, but she believed that she had been given information that the accused had successfully applied to QCAT to have her mother and brother evicted;[51]
[51]R1-70, l 10.
·The complainant accepted that she had approached the accused to collect childhood toys of hers, which were missing. She could not recall the exact date that arrangement was made. She was reminded that on 20 January 2018 that she sent a Facebook message to Amy Thornton. She said too that earlier that morning she had gone over to the accused’s premises to try and retrieve her property. The accused’s nephew opened the house to let her and her husband in, and they searched through some boxes. Her property wasn’t there. During the morning the accused turned up at his house, and there was a conversation about the complainant’s childhood property. The complainant accepted she was upset that she could not find her childhood property, and at some point the accused said that he had sold stuff at a garage sale. She accepted that she was upset about that. She denied making threats to the accused about going to the police about the property;
·The complainant conceded that on 20 January 2018 there was an altercation between the accused’s nephew and her husband, where the nephew chased her husband with a shovel. She said that her husband said to the accused, “I know what you’ve done to [the complainant] and it’s not OK. She accepted that there was also a conversation about the nephew smoking drugs in the house and a threat to tell the police about that. She did not recall her husband saying to the accused “game over”. She accepted that her husband “potentially” may have said that.[52] The complainant accepted that it was later that same day, 20 January 2018, that she messaged Amy Thornton on Facebook about getting assistance. She accepted that the first thing she raised in the message with Amy Thornton was about her property issues. She accepted that Amy Thornton told her it would be difficult in relation to the property, and then she made mention of the accused being a paedophile;
[52]R1-73, l 25.
·The complainant said that she had made an anonymous call to Police Link, before going to the Caboolture Police Station on 25 January 2018;
·She accepted that she commenced giving a statement to Detective Bicanic on 25 January 2018, but she did not sign her statement until 21 October 2018, some 10 months later. She accepted that in the intervening period there were “lots of email and communication between you and Officer Bicanic about the contents of her statement.”[53]
[53]R1-76, l 10.
·She accepted that over that period of time Detective Bicanic would send her a draft statement with questions, and there were occasions when she went back to the police station to provide some details in person. She accepted that she had added details to the statements during that period, and then finally on 21 October 2018 she signed it;
·She agreed that the accused had a job when she first met him, when she was still living with her family in New South Wales;
·She could not recall the accused tickling other children. In respect of the whipped cream incident, she accepted that that was on her 14th birthday. She recalled there were other people in the house. She could not recall other people “having fun with the whipped cream”, or other people being sprayed or covered with whipped cream or food;[54]
[54]R1-79, l 5.
·She could not recall if it was her plan or the accused’s plan to give her mother a break and visit her friend in New South Wales. She accepted that the accused paid for the airfares to New South Wales;
·The complainant accepted that she had not told her mother about the allegations before she went to police in January 2018. She accepted that she asked the police when they were proposing to contact her mother, as she wanted to tell her mother about the allegations first;
·She did not recall telling her friends Jessica De Rouw, Elijah Smit, Jasmine Butler, Kirsty Leuken or Kelly Morrell that the police officers would be contacting them;[55]
[55]R1-83.
·She accepted that before she went to the police in 2018, she had never told her brothers, or her grandmother about the allegations;
·She could not recall if she told DTC and Alan Walsh at the same time about the allegations at the factory;
·She could not recall speaking to her mother about working out her ages at relevant times. She added that “I’ve never sat down and had a conversation with her about it, no. … I mean, over the years, I guess I may have asked her how old we were when they separated. But we’ve never sat down and had a conversation about it.”[56]
[56]R1-86, l 1.
·In respect of her evidence that the first occasion when anything sexual occurred was him coming into the room and touching her on the vagina, she accepted that in her evidence in chief she said that occurred when she was 11 years old. However she conceded she was not certain that she was 11 years old at that time. She said “well, I put it back to that because that was the age when I met him.”[57] When asked if she could have been 13, she said “I don’t recall”;
[57]R1-86, l 25.
·The complainant accepted that she said in her police statement that she was 13 years of age at the time of the first incident;[58]
[58]R1-87, l 10.
·The complainant was asked about the occasion when she said the accused first penetrated her vagina with a finger. She accepted that she said that happened in a matter of months after the first incident. She could not recall exactly how old she was at that time, saying “I linked ages with milestones and things that happened around that time and that’s how I worked it out for the statement.”[59]
[59]R1-87, l 28.
·She said she was potentially wrong in respect of her age at the time incidents occurred. She added:
“So - which is what I said before, is my sentence link to certain milestones, and that’s what’s contributed to that. However, when I look back, I never recall knowing him when he wasn’t sexually abusing me. Which is why the age – whether it be 11 or 13 – is – it’s in the – I’ve written to the best of my knowledge at that time, what age I believe I was.”[60]
[60]R1-87, l 42.
·When asked about the contradictions in ages between her police statement and her evidence in court, the complainant said:
“Yes. But I also understand it was a very traumatic time in my life, and I’ve had to relive it time and time again. So I put in –, in that statement at that time to the best of my knowledge, and I’m speaking to the best of my knowledge, now.”[61]
[61]R1-88, l 10.
·The complainant accepted that she made no mention in her police statement that after the first digital penetration of her vagina, she noticed some blood;
·When asked if she had developed romantic feelings for the accused, she said:
“I find it hard to agree or disagree with that because I feel that the context and the way it was instilled and I was groomed in – in some way to believe that what was going on was – he had feelings for me and I had feelings for him throughout the course of it.”[62]
[62]R1-90, l 15.
·She accepted that “during the middle of it” she was attracted to the accused, then adding “I wouldn’t say attracted but I felt it was more, it was more of a relationship during a period of time.” She accepted that she came to this view when she was between 16 and 17;[63]
·She rejected the suggestion that after she had turned 16 she made a move in a romantic sense towards the accused. She rejected the suggestion that she came up with the idea of having her mother travel to New South Wales in order for her to spend time with the accused;
·She disagreed that the first sexual encounter between the two of them was at Christmas 2005 when she performed oral sex on him;
·She agreed that while her mother was in New South Wales she and the accused engaged in sexual intercourse, which was consensual.[64] She disagreed that that was the first time that she and the accused had sexual intercourse;
·She accepted that she and the accused had consensual sex “many times” over the weekend when her mother travelled to New South Wales;
·In respect of the complainant’s evidence about the accused commenting on her weight, she accepted that she did not put that in her police statement;
·She accepted that there was a conversation with the accused about him filming them having sex. She accepted she agreed to have sex with him on that occasion, on the understanding that he would record the activity then delete it straight away;[65]
·It was put to the complainant that the accused never touched her on the vagina when she was 13 years old, to which the complainant replied: “I can’t be certain that he never touched me, no.”
·It was then put more simply, that the accused never touched her on the vagina when she was under 16 years, to which the complainant disagreed;
·She accepted that during the tickle games sometimes her mother would yell out and say “cut it out”. She accepted that she never yelled out to her mother that the accused was touching her on the vagina.
[63]R1-90, l 25.
[64]R1-91, l 45.
[65]R1-93, l 3.
It was put to the complainant that sexual activity never occurred when she was under 16, to which the complainant rejected. It was also put to the complainant that the accused never had sexual activity with her on the side of the road on the way to her work, in Gladstone, that he never penetrated her with his toes or a bottle, never attempted anal intercourse with her, and never had sexual activity with her at Logan Textiles. All of those suggestions were rejected by the complainant.
The complainant denied that she was upset because the accused was evicting her mother and brother from his house; the complainant said that she had been encouraging her mother to move out for a long time beforehand.[66] The complainant denied she was upset that her mother and brother had been taken away by police officers; she conceded that she was upset that the accused had sold her property.
[66]R1-95, l 3.
The complainant was asked whether the sexual allegations made against the accused were her way of getting back at the accused for not getting her property back. The complainant rejected that proposition. She denied lying about sexual activity occurring when she was below the age of 16, and denied lying simply because she wanted to get back at the accused. The complainant said she would never do that. She denied exaggerating the true state of things, and denied that there was only a brief consensual sexual relationship after she turned 16. She denied making the allegations as revenge for the way the accused treated her family.[67]
[67]R1-96, l 14.
In re-examination, the complainant was asked why it took 10 months to finish her statement. She said:
“So the detective was on another case as well, and when I would respond to him, it would sometimes take him a period of time to respond, and I would actually – in that period – email him and say ‘well, look, is there someone else I can speak with – that will deal – that is able – that has the time to deal with this?’ But he responded and said that he would be dealing with it, and it was – him taking leave and stuff going on.”[68]
[68]R1-06, l 34.
The complainant in re-examination was asked why she never made a complaint to her mother or her brothers. She said:
“So my relationship with mum was strained. She had left my dad and her whole life revolved around [CR]. And he – I felt that – I honestly felt that, had I told her, she wouldn’t have believed me or she would have blamed me from the get go, because she was very jealous – very jealous – of me and I honestly didn’t think I would have her support if I did tell her. … My brothers are all ADD, ADHD or ODD. They’ve got – they’ve got stuff going on and we aren’t really close. They’re not someone I would ever confide in.”[69]
[69]R1-97, l 10.
Evidence of the complainant’s Mother and brothers
BJS, the younger brother of the complainant, gave evidence that his mother began a relationship with the accused when he started Grade 1 at primary school, around 2001. He recalled that his family would often go and stay at the accused’s house in Jimboomba. That occurred a few times a month.
Over the years he noted that the accused treated the complainant differently from the rest of his siblings. It was clear that the complainant was shown favouritism by the accused.[70]
[70]R1-103, l 15.
He recalled occasions when his family would stay at the accused’s “ex parents-in-law, Sandy and Edmond”. The family stayed in a caravan; that occurred when he was still in primary school. He observed that the complainant would sleep on the floor beside the bed in which his mother and the accused slept; the complainant would sleep on the floor closest to where the accused was sleeping.
When staying at the accused’s house in Jimboomba, he and his brother, D, shared bunk beds in the spare room. The complainant would sleep in another spare room closest to the kitchen and lounge room.
In cross-examination, he accepted that he had to be evicted by the accused from his house, and that in 2014 his mother was given a notice to leave. He recalled an occasion when he arrived back at the house when police were there. He denied that the police were telling him to leave; he said that “we were there waiting on a tow truck to come and collect my mother’s car. ... And then an incident occurred where – that’s when they arrested me and my brother and put us in the police vehicle and took us away. There was no ever mention of that we want to let out the property, that we had to leave. … It was all good until an incident occurred out the front.”[71]
[71]R1-106, l 30.
The mother of the complainant, TLS, gave evidence that she had four children, three sons and a daughter, the complainant. The complainant’s date of birth was 3 July 1989.
She first met the accused in an online chat room in 2001. They commenced online chatting regularly, when she was living in Murwillumbah. She eventually met the accused in person around 12 August 2001, at his residence in Hill Street, Jimboomba. She would visit the accused on most weekends, every second weekend. That continued for a while until she moved to Queensland in 2002. She stayed with a friend at Elimbah for probably six to eight weeks while she found her own place to stay. She signed the lease on her own address in Samantha Street, Boronia Heights on 1 August 2002.
When she was still living in New South Wales she would bring the complainant with the two younger boys to visit the accused. The older boy decided not to travel to Queensland. She said that she would bring the complainant to Queensland more often than the boys, as the boys stayed with their father and the complainant wanted to be with her.
The mother said that the accused got on well with her children; the complainant and the accused “seemed to get along quite well. It wasn’t seen to be too many issues between them.”[72]
[72]R2-22, l 30.
She knew that the accused had two children of his own; the accused’s daughter was born the same year as the complainant. She recalled that the accused would play games with the complainant, “tickle and wrestle and, you know, chase her around and things.”[73] The accused did not do the same sort of things with the boys when they were present.
[73]R2-23, l 8.
The mother said that when she moved to Boronia Heights she still had to have regular contact with the accused, visiting him most nights. If the children were with her, she would stay all night. Sometimes if the older son was at her home, she would go out by herself to visit the accused and then come home later. It was about a 15 minute drive between Boronia Heights and Jimboomba.
The mother described the accused’s house in Jimboomba as a unit, with three bedrooms.
The mother gave evidence that the accused made up a nickname for the complainant, using the individual letters of her name. The complainant was embarrassed about that and did not like it. The accused did not have nicknames for her other children.
The mother gave evidence that after a period of years at Samantha Street, they moved to Cunningham Drive in Boronia Heights. The accused still lived in Jimboomba at the unit at that stage. After staying at Cunningham Drive for about 12 to 18 months, she and her family moved to Gregory Street in Boronia Heights. These were all rental properties.
The mother gave evidence that the complainant moved out of the family home at Gregory Street, Boronia Heights when she had finished school, and had got her driver licence. She thought the complainant was 17 years of age at that time.[74]
[74]R2-25, l 23.
The mother said that after living at Gregory Street for about 12 months or so, she went and stayed with the accused at Sandy and Edmonds’ place at Cedar Grove. There were two caravans out the back of the residence at Cedar Grove, one for the accused and the other for guests and also contained a games room of sorts. She stayed at Russell Court, Cedar Grove for about three months before moving to an address at Flagstone.
She and the accused later moved to an address in Turpentine Drive, Cedar Vale. The complainant never lived with the mother at that address. The mother recalled that she and the accused moved to Turpentine Drive, Cedar Vale in December 2008.
In respect of when her family stayed at the accused’s house in Hill Street, Jimboomba, she recalled that her boys would sleep in one room in double bunks, and the complainant would sleep in a double bed in another bedroom. The mother slept with the accused in the main bedroom. If the accused’s children were staying, they got the double bunks and her boys would be on a mattress on the floor.[75]
[75]R2-27, l 25.
She said during her relationship with the accused, he would help her out financially, with groceries, bought her a car which she paid back, and help her out financially if they needed anything. She recalled that the accused bought the complainant’s formal dress for her, and provided a loan for the complainant to buy a car.
The mother gave evidence that the accused was a referee for soccer matches, so she and her family would go to soccer every weekend. Sometimes it could be six games of soccer over a weekend, if not more. On an occasion the accused and the complainant’s family went to an air show out at Amberley Air Base.
She believed throughout the time she was with the accused she was in a relationship with him. She and the accused were building a house together, at Turpentine Drive, Cedar Vale which the accused financed. She had “a lot of input with, you know, colour selections and stuff like that and even the design of the house.”[76]
[76]R2-28, l 33.
The mother gave evidence that the accused had referred to the complainant as his daughter. The accused would take her to and from school, and if he had a finished a night shift in the morning he would drop her to school, sometimes he would pick her up from school. When the complainant started working at McDonalds he would take her to and from work.[77]
[77]R2-29, l 5.
The mother said that throughout her relationship with the accused he had an EL Falcon, black in colour as well as a blue Ford Falcon XR6. She recalled that the accused obtained the blue XR6 in October 2004. That XR6 was stolen at some point, so he obtained a 2009 XR6, again coloured blue. She thought he got that second XR6 in 2009.
Throughout her relationship with the accused she recalled that the accused was first working at an engineering business, and then at Logan Textiles, before working for Visy Board. She recalled that the accused started working for Logan Textiles sometime around 2002 or 2003, until the factory burnt down.[78]
[78]R2-30, l 25.
The mother gave evidence that she did take a trip to New South Wales to visit a friend; she was living at the Cunningham Drive, Boronia Heights address at that time. She stayed in New South Wales for about two weeks. She made arrangements for her mother to come up from New South Wales to look after the children. While she was away she did have contact with her children. She recalled a telephone conversation with the complainant about the accused taking her to hospital about a boil on her back that needed treatment. She also had a conversation with the accused about that later on that evening.[79]
[79]R2-31, l 45.
The mother recalled an occasion when she and the complainant, and the accused and his children went up to Calliope for Easter. It was a camping trip. They stayed with the accused’s ex-wife’s brother and his wife and family; they all camped in a tent in the backyard. There were quite a few other family members that were there as well and they were staying in the house. She recalled that the accused’s children stayed in the house, while she, the accused and the complainant were in the tent.[80] She recalled that on the way home they made a trip to Tin Can Bay.
[80]R2-33, l 20.
The mother said there was one occasion that concerned her. This occurred at the accused’s unit in Hill Street, Jimboomba. One night she woke up and the house was all in darkness. She went out to look for the accused but she could not find him. She saw the complainant’s door open and found the accused in bed with the complainant. When asked what she did, she said:
“I just lost it and went off at him, got the children up out of bed, the two boys, obviously in the other room in the bunks. Got them out of bed and headed back home to Boronia Heights.”[81]
[81]R2-33, l 37.
The mother said that she thought the complainant was about 14 or 15 at the time; she later changed that to say “no, she would have been younger because she was only – yeah. So, no, she was probably 13.”[82]
[82]R2-34, l 5.
The mother said that she verbally abused the accused, took the kids and went back to her house. By the time she got home she had received several text messages from the accused, saying that he had been sleep walking.[83]
[83]R2-34, l 25.
The mother said that she continued to visit the accused and be in a relationship with him, “because I believed what he’d said to me about sleepwalking because he did have different occasions where, when I was staying there, that I’d wake up and he’d be underneath the bed or out in the kitchen doing something or getting dressed, going to fix someone’s car while asleep. So, yes, he did suffer from sleepwalking.” She said that her relationship with the accused ended in March 2014 “or thereabouts”.
In cross-examination, the mother accepted that she had worked at Logan Textiles for “probably six months, maybe”. She recalled that the business burnt down in about October of 2004.[84]
[84]R2-38, l 45.
In respect of the mother’s trip to New South Wales, she accepted that the flights were paid by the accused. She could not recall the year that trip took place, it was either 2005 or 2006. It took place in either January or February. She was questioned about her statement to police, and she conceded that she had told police that the trip to New South Wales was in late January or early February of 2006.[85]
[85]R2-40, l 25.
In respect of the incident when she found the accused in bed with the complainant at Hill Street, Jimboomba, she conceded that she told the police that that incident took place in about 2005 or 2006.[86]
[86]R2-41, l 5.
The mother accepted that in March 2014 the accused was trying to evict her from the Turpentine Street, Cedar Vale address; and that he gave her a notice to quit. She accepted that she tore that notice up in his face. She accepted that the accused then had to apply to the Queensland Civil and Administrative Tribunal to have her leave the address. She agreed that the police had to come and remove her and her sons.
The mother accepted that her property had been sold at a garage sale; and that she told the complainant that some of her property had been sold at a garage sale. When asked if the complainant was angry about that, the mother said “[the complainant] got quite a fair bit of her stuff back.” She accepted that the complainant did not get all of her property back, but maintained that she had the childhood toys of the complainant.[87]
[87]R2-42, l 15.
DRS, another brother of the complainant, gave evidence about meeting the accused with his mother sometime in 2001. He recalled that they would stay with the accused on weekends, and then on a couple of nights a week sometimes. He said that when they stayed at the accused’s unit at Hill Street, Jimboomba, he would sleep in a bunk bed with one of his brothers. He said that the complainant would sleep in a spare bedroom.
In respect of the accused’s relationship with the complainant, he described the accused treating her “like a queen”. He said that “he’d go out of his way to do anything and everything for her.”[88]
[88]R2-46, l 25.
He gave evidence of an incident at the Hill Street, Jimboomba unit when there was a food fight. The complainant went to have a shower, and he saw the accused using a card to unlock the door and spray whipped cream on her when she was in the bathroom.[89] On another occasion he had walked down a hallway at the Hill Street, Jimboomba unit to get a drink of water and saw that he was in bed with the complainant. As a result he went and woke his mother up, and the family left.[90]
[89]R2-47, l 43.
[90]R2-47, l 45.
In respect of the whipped cream incident, he said that the complainant “would have been no older than 13, 14.” In respect of the second occasion when he saw the accused lying in bed beside the complainant, he said that he would have been 12 at that time; the complainant was two and a half years older than him, therefore she was 14 and a half at the time of that incident.[91]
[91]R2-48, l 35.
He recalled his family staying with the accused in a caravan at a place at Cedar Grove. He said that the sleeping arrangements were his mother and the accused in the bed, he and his brother down at the foot of the bed, and the complainant sleeping on the bed on the floor, on the accused’s side of the main bed.[92]
[92]R2-51, l 5.
In cross-examination DRS admitted that he didn’t like the accused, and had never liked him. He admitted that the accused was the cause for his mother and father separating.[93]
[93]R2-52, l 10.
DRS said he was aware that the accused went to QCAT in 2015 to have his mother evicted from the address in Turpentine Street, Cedar Vale. He was not initially present at that address when police arrived to remove his mother, but arrived some way through the incident. He accepted that he and his brother were arrested, along with his mother. When asked “so there’s no love lost between you and [CR]?”, DRS answered “there’s no love to be had.”[94] He admitted that he loved his sister, and he would do anything for her.
[94]R2-55, l 5.
Preliminary complaint witnesses
Amy Thornton gave evidence that she met the complainant in High School in about 2004. She did not know the accused. She recalled that she had a Facebook message exchange with the complainant in January or around 20 January 2018. She was shown Exhibit 2, and agreed that was the electronic communication she had with the complainant.
In cross-examination, Ms Thornton said that the complainant was aware when she was training to be a police officer, and she would have known when she was sworn in as a police officer. She said that over the years she and the complainant would communicate on Facebook for life events, “when either of us was pregnant with a child or birthdays, but not regular conversations, as such.”[95]
[95]R2-4, l 25.
Ms Thornton now confirmed that the only conversation she had about sexual misconduct between the complainant and the accused was contained in Exhibit 2.
Kelly Ann McMurdy (neé Morell) gave evidence that the complainant was one of her best friends. They met in High School in Grade 8. She continues to be friends with the complainant. She recalled meeting the accused a number of times, as he was the complainant’s mother’s boyfriend.
When asked if she had ever had a conversation with the complainant about things happening with the accused, she said:
“There was one time she did tell me a little bit, but she was just trying to recall what had happened and she was telling me that something that had happened but she wouldn’t go into too much detail but she did tell me that there was a time where [CR] had tried to open up the bathroom with a knife, and that was as far as she went. She didn’t want to give any further detail.”[96]
[96]R2-6, l 23.
Ms McMurdy said that the complainant was “trying to recall a time where some, like, sexual abuse had happened, and she couldn’t remember how old she was, but she was trying to recall the house she was in and that was one of the defining things that she could remember, was that particular bathroom and that door.”[97] Ms McMurdy was not sure exactly when this conversation took place, it could have been three to five years ago.
[97]R2-6, l 40.
In respect of Count 12, the complainant gave evidence that she was sleeping in the caravan at Cedar Grove on the property of the accused’s former parents-in-law. She recalled sometime when she was “maybe 16” she was sleeping beside the accused on the floor of the caravan. The complainant said she woke up and the accused put his penis in her mouth and ejaculated inside her mouth. That was the first occasion that he had ejaculated in her mouth that she recalled, and she spat the semen out. She said that that was not the first occasion that he had put his penis in her mouth.[168] Significantly, the complainant was not asked whether she consented to that activity. The complainant in her evidence admitted that she would perform oral sex on the accused sometimes before having intercourse with the accused, and that was during the period when her mother was away. She agreed that she willingly performed oral sex on him.[169] In the circumstances I cannot be satisfied beyond reasonable doubt that this charge has been proved, and I find the defendant not guilty of Count 12.
[168]R1-40, l 26.
[169]R1-43, l 25.
In respect of Count 13, this is the allegation of anal rape in the caravan at Cedar Grove. It is important to consider closely her evidence on this. The complainant said that the accused put his penis in her bottom, and “I sort of said, no. Like, I wasn’t willing to do that and he’s like, it – he said, it’ll be okay, and then done a bit and it was very painful. And then I sort of pulled away and he said, you know, try it again. And then he tried it again and it was still painful and then when I said it was painful he stopped. He didn’t persevere with that.”[170]
[170]R1-43, l 35.
The complainant did not positively say that she had told the accused “no” and that she did not want any penetration of her anus. I accept the complainant’s evidence that this incident occurred, and it has the hallmark of sexual experimentation. On the evidence the accused stopped trying to penetrate her anus when she said it was painful. In the circumstances I cannot be satisfied beyond reasonable doubt that the complainant did not begrudgingly give consent to that experimentation, and I find the accused not guilty of Count 13.
I then turned to Count 1, the charge of maintaining a sexual relationship with a child under 16. It is significant that the period charged is between 12 August 2001 and 3 July 2005. There are different directions in the Supreme and District Court Criminal Bench Book in respect of this offence, depending on when the alleged maintaining occurred. This obviously reflects changes in the law to s 229B Criminal Code over the years.
As I discussed above, the complainant was uncertain as to her age when sexual offending commenced. That is why Count 1, along with a number of the other charges, has a wide date range. I am satisfied beyond reasonable doubt on the evidence that sexual offending against the complainant occurred from when she was at least 13 years of age, and continued until her 16th birthday on 3 July 2005. I have directed myself in accordance with Bench Book Direction number 157.
I am satisfied beyond reasonable doubt that the accused was an adult during the relevant period. I am satisfied that the accused maintained an unlawful relationship of a sexual nature, that included not only the specific unlawful sexual acts in Counts 2, 3, 4, 5, 6, and 11, but also included numerous uncharged acts of the accused touching the complainant on the outside of her vagina, on her skin, digital penetration of her vagina, and unlawful carnal knowledge. I therefore find the defendant guilty of Count 1.