R v DAT

SUPREME COURT OF QUEENSLAND

CITATION: R v DAT [2009] QCA 181

PARTIES: R v DAT (appellant/applicant)

FILE NO/S: CA No 49 of 2009 / DC No 274 of 2008

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction / Sentence Application (Extension Granted)

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 19 June 2009

DELIVERED AT: Brisbane

HEARING DATE: 1 June 2009

JUDGES: Holmes and Muir JJA and McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Appeal against conviction on count 1 allowed;****Verdict and conviction on count 1 set aside;****Verdict of acquittal entered on count 1;****Application for extension of time within which to seek leave to appeal against sentence granted;****Application for leave to appeal against sentence granted;**Sentences imposed on counts 2 to 5 varied to the extent of suspending them after four months, with an operational period of three years.

CATCHWORDS: Criminal law – appeal and new trial – verdict unreasonable or insupportable having regard to evidence – appeal allowed – where appellant pleaded guilty to four counts of indecent treatment of a child under 16 with circumstances of aggravation, and not guilty to a count of maintaining an unlawful sexual relationship with the child over a five year period – where appellant convicted of the maintaining offence after judge only trial – where complainant’s evidence suggested improper touching may have occurred on seven occasions over the five year period – where appellant said he may have improperly touched the child up to 10 times – whether evidence showed continuity or “habituality” of sexual contact – whether evidence sufficient to prove beyond reasonable doubt appellant maintained unlawful sexual relationship – whether conviction reasonably open on the evidence / Criminal Code 1899 (Qld), s 229B, s 615C / MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited / R v Kemp (No. 2) [1998] 2 Qd R 510; [1996] QCA 514, applied / R v S [1999] 2 Qd R 89; [1998] QCA 71, cited

COUNSEL: S T Courtney for the appellant/applicant / M J Copley SC for the respondent

SOLICITORS: Butler McDermott Lawyers for the appellant/applicant / Director of Public Prosecutions (Qld) for the respondent

1. HOLMES JA: The appellant pleaded guilty to four counts of indecent treatment of a child under 16, with the aggravating circumstances that she was under 12, his daughter and under his care. He went to trial before a judge sitting alone on a further count of maintaining a sexual relationship with the child between June 1996 and June 2001, and was convicted. He appeals against his conviction on the ground that it is “unreasonable, or can not be supported having regard to the evidence”.¹

2. Section 615C of the Criminal Code provides that in a trial by a judge sitting without a jury, the verdict of the judge has the same effect as a jury's verdict, and chapter 67 (which deals with appeals) applies “with all necessary changes” to the defendant in the same way as it applies to defendants tried by jury. It was common ground (and properly so) that the Court should resolve the appeal by applying the test formulated in M v The Queen² and accepted in MFA v The Queen.³ The issue on the appeal is whether it was reasonably open to the judge to be satisfied beyond reasonable doubt that the evidence showed a continuity or “habituality”⁴ of sexual contact sufficient to establish the maintaining charge.

The Crown case

3. The Crown case at trial, which was essentially uncontested, rested on the s 93A⁵ statement of the complainant, T, and a record of interview with the appellant. T’s mother, called by the Crown, explained that she had separated from the appellant in 1995. T, who was born in June 1993, was then about two and a half years old. After the separation, the appellant had access to T and her sister at his parents’ house every Saturday, until, at some time between 2001 and 2002, T told her mother that the appellant had touched her private parts. The mother confronted the appellant, who said that it had only happened once. He had been tickling the child and his hand had stayed “in the wrong spot too long”. After that, the appellant’s parents had supervised his access to the children.

4. T was 15 when, in September 2008, she was interviewed about the sexual assaults. She said that when she was seven, her father had touched her vaginal area, sometimes outside her clothes, “but mainly on the inside”. This had occurred at different places: at the beach; in her father’s lounge room; in her grandparents’ lounge room; and “down in the paddock”. At the beach he had put his hand down her togs. The same thing had occurred on an occasion when they went swimming in a dam “down the paddock”; this allegation was the basis of count 4 on the indictment. On another occasion, she had gone to sit down in her father's lounge room and he had put his hand underneath her so as to touch her vulva outside her clothes (count 5). The improper touching had happened “quite a few times” in her grandparents’ lounge room; on those occasions, while she was sitting on her father he had touched her vaginal area inside her clothes, “feeling around”.

5. At the end of the interview the police officer asked, somewhat confusingly:

“You said that all this happened quite a few times, is there any way that you can think about how many times is ‘quite a few times’?”

T responded “More than 3”. It is not entirely clear whether T related the question back to her use of the expression “quite a few times” earlier, when she was speaking about the incidents occurring in her grandparents’ lounge room, or whether she was speaking about the total number of incidents, in response to the police officer’s question about “all this”.

6. Police interviewed the appellant. He said that he had touched his daughter’s private parts, but when she was three to six years old, not when she was eight. It was put to him that he sexually abused his daughter when she was aged between five and eight years old. He responded:

“[I]t didn’t happen all the time. It just happened a few times over probably two years.”

Later, he referred to “a few times over about three years”. The first such occasion occurred in the living room at his parents’ house. T was jumping on him and he had touched her vulva outside her underpants, accidentally at first; but he did not then remove his hand. That incident was the basis of count 2 on the indictment.

7. After that, the appellant said, there were “a couple more times over those years”. On one occasion, at the beach, when T was four or five, he had put his hand on her vaginal area (count 3). Asked how many times he had touched T improperly, he said, “It could have been ten times”. He denied ever having placed his fingers inside T’s vagina. He was asked whether he had touched T on the outside of her vagina but underneath her underpants, and said, “I may have. I honestly cannot remember if I actually did”. These events usually happened on a Saturday, when his daughters visited him at the farm where his parents lived.

The trial judge’s finding

8. The learned trial judge identified the only live issue before him as whether:

“there was a sufficient continuity or habituality to the activity of a sexual nature to conclude a sexual relationship, an unlawful sexual relationship, was maintained, as opposed to some isolated incidents which occurred, on occasions, when the physical proximity was such that activity of a sexual nature could occur.”

The learned judge expressed the view that the appellant’s “recall of times [might] not be particularly reliable”. He made this finding:

“The evidence does not support any specific conclusion about the regularity of the touching, however I am satisfied that in the context of [the appellant’s] regular access to the complainant every Saturday this sort of thing occurred with sufficient regularity to amount to maintaining an unlawful sexual relationship.”

The contentions on appeal

9. The appellant’s argument was that the Crown case, at its highest, established no more than isolated incidents of touching. There were three, or possibly four, places identified as the locations where the touching had occurred: the beach, the appellant’s lounge room, his parents’ lounge room (which might have been the same) and the paddock. On one view, T’s answer to the police officer at the end of the interview indicated that “all this”, that is the entire set of touching, happened “[m]ore than 3” times. On another view, it happened “quite a few times”, meaning more than three, in one of those places, her grandparents’ lounge room. Accepting the second interpretation, and allowing “[m]ore than 3 times” to represent four times, that would give a total of seven incidents of improper touching.

10. The appellant’s statements in the record of interview were too vague for any more specific finding. The maintaining offence was charged as occurring over five years, consistently with the appellant’s admission to touching T when she was three and T’s recollection of being touched when she was seven. Establishing seven incidents of improper touching occurring over five years, in the context of the appellant’s having the child in his care on some 250 Saturdays, was not sufficient to prove beyond reasonable doubt that the appellant had maintained an unlawful relationship with his daughter.

[11] The respondent argued that the question was whether the appellant consistently or habitually interfered with his child. It was not known how often he had had the opportunity to touch the child’s vulva over the five years, given that others may have been present during the access visits. The 10 times suggested in his answer might have represented those occasions when he actually had such an opportunity, and it might be that on those occasions he habitually and consistently did touch the child. Alternatively, the trial judge was entitled to take the view that there was more touching than the appellant was prepared to admit.

Discussion

[12] There is no doubt that, as s 229B(2) of the Criminal Code then required,⁶ the appellant committed an offence of a sexual nature in relation to T on three or more occasions; his pleas of guilty to counts 2 to 5 on the indictment established that. That evidence, while going to prove an element of the offence and admissible as proof of the relationship, was not of itself sufficient to establish the maintaining offence. As Mackenzie J observed in R v Kemp (No. 2):⁷

“The offence created by s. 229B is unusual in that it combines the requirements of proving at least some degree of habituality (maintaining a sexual relationship) and of proving at least three acts constituting an offence of a sexual nature, committed during the period over which it is alleged that the sexual relationship was maintained. Both these elements must be proved beyond reasonable doubt. The offence is neither an offence completed upon the commission of three discrete acts of a sexual nature, nor an offence defined solely in terms of a course of conduct or state of affairs. It combines elements of both.”

The section was not, he went on to say, intended to apply where all that was proved were “three random or opportunistic incidents”; but it might be established by evidence of relevant conduct:

“…occurring on multiple occasions without the complainant being able to specify the precise occasion and without the complainant being able to be precise about the details of individual occurrences other than to say that particular kinds of conduct occurred on frequent occasions.”⁸

[13] The Criminal Code offers no definition of “maintains an unlawful sexual relationship”, and further authority as to when conduct reaches the level of maintaining is lacking. It is reasonable to suppose, however, as the appellant’s counsel submitted, that the indicia of maintaining a relationship include the duration of the alleged relationship, the number of acts and the nature of the acts engaged in. By way of illustration of the last, three acts of penile penetration, it stands to reason, would indicate a more deliberate and significant course of conduct than three brief acts of touching genitalia.

[14] This case was not one of a kind which the Court commonly sees, in which the complainant identifies some specific sexual assaults and says that the same kind of thing happened on a regular basis. T spoke of a limited number of instances of touching; as counsel for the appellant submitted, about seven at the highest. The appellant’s response to the questioning police officer that “[i]t could have been ten times”, as an estimate given seven years later, does not really assist in arriving at any greater precision; and the trial judge does not seem to have placed any reliance on it.

[15] While the learned judge did not consider the appellant’s recall dependable, there is, I think, some concern that his Honour’s finding:

“that in the context of his regular access to the complainant every Saturday this sort of thing occurred with sufficient regularity to amount to maintaining an unlawful sexual relationship”

represented a speculative view that the appellant had touched T more often than the evidence indicated. If so, it was not a permissible path to a finding of guilt. If, on the other hand, his Honour was suggesting that the context of the appellant’s access to T every Saturday supported the finding that the proved incidents of touching were regular enough to amount to maintaining, again I think the conclusion is problematic; because, as the appellant’s counsel pointed out, that context was one of some 250 access visits over five years. It dispelled, rather than supported, any notion of regularity in the conduct.

[16] And with all respect to the respondent’s counsel, one cannot properly draw an inference that the occasions on which the appellant could touch T were limited, so that the incidents described represented opportunity habitually taken. That approach, again, amounts to impermissible speculation. There was nothing to contradict the alternative inference, that those instances occurred in the context of hundreds of opportunities not taken.

Conclusions and orders

[17] The evidence in the case was sparse. There was nothing to suggest any deliberation or any particular course of conduct on the appellant’s part. One could not, on the Crown case, be satisfied beyond reasonable doubt that there were more than seven fleeting incidents of improper touching, some outside the clothing, over five years. Given the nature of the touching described, the limited number of events, the fact that they were spread over such a long period of time, and the absence of any evidence that there was any limitation of opportunity, I do not think it was open to his Honour to be satisfied that these were more than random spontaneous events. The evidence was not sufficient to prove beyond reasonable doubt that the appellant had maintained an unlawful relationship with his daughter.

[18] The verdict and conviction on the maintaining count should be set aside as not supported by the evidence, and a verdict of acquittal entered. The appellant was sentenced to three years imprisonment on that count and 12 months on each of the indecent dealing counts to which he had pleaded guilty. All sentences were suspended after nine months, with an operational period of four years. The learned judge explained that the early suspension took into account:

“[the appellant’s] plea of guilty to the indecent dealings and [his] co-operation with authorities, [his] efforts at rehabilitation over the years and [his] efforts to try and do what [he could] to undo the effects of what [he had] done.”

Plainly, the suspension of the sentences for indecent dealing after nine months was not because of any intent that the appellant should serve more than a usual period on those counts, but merely to achieve uniformity with the sentence imposed on the principal charge of maintaining.

[19] The appellant sought an extension of time within which to seek leave to appeal against the sentence on the indecent dealing counts, which the Crown very properly did not oppose. That extension of time and leave to appeal should be granted. The verdict on the maintaining count having been set aside, the proper course, in my view, is to vary the sentences on the remaining counts only to the extent of suspending them after four months, with an operational period of three years, leaving unaltered the head sentence of 12 months on each count.

[20] MUIR JA: I agree with the reasons of Holmes JA and with the orders she proposes.

[21] McMURDO J: The question is whether it was open to the learned trial judge to conclude that the appellant had maintained an unlawful relationship of a sexual nature. For the purposes of this case, the offence was defined by s 229B of the Code as it was until 2003,⁹ (in part) as follows:

229B****Maintaining a sexual relationship with a child

(1)Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years.

(2)A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.

[22] According to the joint judgment of Brennan CJ, Toohey, Gaudron and Gummow JJ in KBT v The Queen,¹⁰ the actus reus of the offence is not the maintenance of the unlawful relationship but rather it is the doing of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions.¹¹ Nevertheless, since KBT this Court has continued to hold in prosecutions under this version of s 229B that what must be proved is not only the commission of the three offences but also a further element that they were committed in the context of an unlawful relationship of a sexual nature maintained by the defendant.¹² The respondent accepts the necessity, as the learned trial judge put it, for the prosecution to prove “that there was a sufficient continuity or habituality to the activity of a sexual nature … as opposed to some isolated incidents which occurred, on occasions…” His Honour was there applying what was said by Macrossan CJ and Mackenzie J in their judgments in R v Kemp (No. 2),¹³ and by the Court (Pincus and McPherson JJA, Muir J) in R v S, which held that:

“The decision in KBT v The Queen does not relieve the Crown of the need to prove that the sexual relationship specified in s 229B(1) was ‘maintained’ for some period of time rather than being a discontinuous succession of sporadic and isolated incidents.”¹⁴

[23] It was certainly open to the learned trial judge to conclude that the offending was more extensive than that admitted by the appellant by his plea of guilty to the other counts on the indictment. But the question was whether the complainant’s account justified the finding that “this sort of thing occurred with sufficient regularity to amount to maintaining an unlawful sexual relationship”. In her interview by police, the complainant was asked to recall “where it happened, when it happened” to which she answered, “I think when I was like seven, it happened in a few different places … quite a few times.” When asked whether the appellant touched her on the outside of her clothes, she said, “Sometimes, but mainly on the inside.” In that respect her answer was similar to several others she gave in this interview, in that she described his conduct in terms which involved a recollection of particular examples of what had occurred without limiting her complaint to those incidents.

[24] I am unable to conclude that according to her evidence, some upper limit could be placed on the number of incidents. In my view, consistently with her evidence it was quite possible that there was a course of conduct involving the regularity which would amount to the maintenance of an unlawful relationship of a sexual nature. But to convict the appellant, the learned trial judge had to exclude another possibility, which was that there were no more than seven or so incidents over a period of many years and that they were sporadic and isolated. As Holmes JA has said, the evidence (including the appellant’s statement to police) was sparse, and in my view, it did not permit the learned trial judge to reasonably exclude that possibility. Accordingly, it was not open to his Honour to convict the appellant. I agree that the appeal against conviction should be allowed and a verdict of acquittal entered.

[25] I also agree with the orders proposed by Holmes JA to vary the sentences on the remaining counts, and with her Honour’s reasons for those orders.

Footnotes

1. Criminal Code s 668E. ↩

2. (1991) 181 CLR 487. ↩

3. (2002) 213 CLR 606 at 614-615 and 624. ↩

4. R v Kemp (No. 2) [1998] 2 Qd R 510 per Mackenzie J at 518. ↩

5. Evidence Act 1977 (Qld). ↩

6. Before amendments by s 18 of the Sexual Offences (Protection of Children) Amendment Act 2003 (Qld), No 3 of 2003, with operation from 1 May 2003. ↩

7. [1998] 2 Qd 510 at 518. ↩

8. At 519. ↩

9. When amended by s 18 of the Sexual Offences (Protection of Children) Amendment Act 2003 (Qld). ↩

10. (1997) 191 CLR 417, 422, 424. ↩

11. See also KRM v The Queen (2001) 206 CLR 221, 236 (McHugh J) and 245 (Gummow and Callinan JJ). ↩

12. R v S [1999] 2 Qd R 89; R v AH [2002] QCA 536 at [9], applying the judgment of Kirby J in KBT which held that there was this distinct element. ↩