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[2025] QCA 62
respondent. Appeal against conviction dismissed. Application for leave to appeal against sentence refused: [43].
The Court of Appeal upheld the three rape convictions and declined to grant leave to challenge the sentences. It accepted that the complainant had given seriously different accounts to police and at trial, but considered that the jury could assess her explanations in the context of the other evidence. The foetal DNA evidence was not conclusive proof of paternity, but strongly favoured the appellant over a random unrelated man. The evidence supporting the rape counts also differed from the evidence on the assault count, so the acquittal on that count was not irreconcilable with the convictions. The Court considered the concurrent sentences, including the 12-year sentence that represented the overall criminality, not manifestly excessive on the circumstances and authorities discussed.
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The Queensland Court of Appeal considered a conviction appeal and an application for leave to appeal against sentence. The appellant, DCN, had been convicted by a jury of three counts of rape of his biological daughter, with each count including a domestic violence circumstance of aggravation. He was acquitted of a separate count of assault occasioning bodily harm while armed. The offences were alleged to have occurred in 2017 and 2019: count 1 was particularised to a date between 1 January and 21 December 2017, count 2 to a date between 10 August and 2 September 2017, and count 4 to a date in 2019 [1].
The complainant said that she had gone to live with the appellant on Palm Island when other family members no longer wanted to care for her. Her trial evidence was that the appellant raped her on the first night she stayed in his room, raped her again a couple of weeks later, and later committed anal rape. She also described a separate assault with a metal bat, the subject of count 3 [7]-[9], [12]. The jury accepted the allegations charged as counts 1, 2 and 4, but acquitted on count 3.
A central difficulty in the case was the complainant's earlier account to police. In a February 2018 interview, she said her pregnancy followed consensual sex with an unidentified person after a party in Mossman. She also said that her half-brother AB had raped her and denied that her father had done anything inappropriate to her [11]. At trial, she said those accounts were lies, denied that there had been a Mossman party, and said the appellant had told her that no one would believe her [12]-[13]. She first reported the allegations against the appellant to police in July 2021 [14], [24].
The pregnancy evidence was significant to count 2. Medical evidence estimated conception between 14 and 28 August 2017 and recorded that the pregnancy was terminated on 21 December 2017 [22]. DNA testing of foetal tissue produced a partial profile. The expert said the profile was approximately 41 million times more likely if the foetus was the child of the complainant and appellant than if it was the child of the complainant and a random unrelated man. The expert did not compare the profile with AB's DNA or with a son of the appellant, and the trial judge directed that the evidence was not absolute proof of paternity [23], [30].
The District Court imposed concurrent terms of seven years for count 1, 12 years for count 2 and eight years for count 4 [2]. The Court of Appeal, comprising Mullins P, Boddice JA and Martin SJA, dismissed the conviction appeal and refused leave to appeal against sentence [43].
The Court treated the appeal as requiring an independent assessment of the whole evidence. It set out the approach from M v The Queen: the appellate court determines whether it was open to the jury to be satisfied beyond reasonable doubt, without disregarding the jury's advantage in seeing and hearing the witnesses [27]. It did not simply ask whether it would itself have convicted. It assessed whether the verdicts were available to the jury on the trial record.
The complainant's inconsistent accounts were plainly relevant to her credibility. The Court noted that the jury had been required to consider her earlier statements about the Mossman encounter, AB, and her denial that the appellant had acted inappropriately [28]. The defence had put the credibility and reliability challenge to the jury, and the Court observed that the appellant's appeal arguments had also been advanced in the trial address [28]. It was for the jury to decide whether to accept the complainant's explanation that she had lied to police because of what the appellant told her, and her explanation for not disclosing the alleged offending for several years [28]-[29].
The Court identified evidence that could support the complainant's account beyond her own testimony. Mr R described the appellant and complainant as having a “partner relationship”, reported that they slept in the same room, and recounted hearing sexual noises before seeing the complainant hurry to the bathroom and smelling what he described as fresh semen [19]. Ms I had seen the complainant go to a shed and heard her crying [18]. The partner and Detective Tulacz gave preliminary complaint evidence, although the Court recognised that the details given to them were brief [30]. The Court did not treat each item as conclusive. It considered the material cumulatively in deciding whether the verdicts were open to the jury.
The DNA evidence was particularly relevant to the pregnancy. The Court emphasised the trial judge's direction that the DNA evidence was not absolute proof that the appellant fathered the foetus. Nevertheless, the likelihood ratio described in the evidence was compelling evidence of the likelihood of paternity when compared with a random unrelated man [23], [30]. The Court did not find that the testing eliminated the possibility that another related male could have contributed the relevant DNA. Its reasoning was narrower: the evidence had probative force and the jury could weigh it with the rest of the case.
The Court also addressed the appellant's argument based on the count 3 acquittal. The key point was the difference in the evidence available for that count. The Court said there was no witness other than the complainant who observed the bruises she described as resulting from the assault. It contrasted that evidentiary position with the evidence relevant to the rape counts, including the DNA evidence and other supporting testimony [30]-[31]. It therefore regarded the acquittal on count 3 as reconcilable with the guilty verdicts, rather than as showing that the jury must have rejected the complainant's evidence across the case.
On sentence, the Court considered the circumstances of the offending and the authorities addressed in the reasons. It noted that the appellant had been convicted after trial, showed no remorse, and committed the rapes over more than two years [38]. It also treated the biological father-daughter relationship and the complainant's vulnerability as important, and identified as aggravating the pregnancy resulting from count 2 [39]. The Court considered R v LJ, R v HAD and R v VN as comparators, while recognising the factual details of those cases as set out in the judgment [35]-[36], [41]. It concluded that the effective 12-year head sentence was neither unreasonable nor plainly unjust [42].
This judgment does not present itself as establishing a new legal test. On the unreasonable-verdict ground, it applies the approach stated in M v The Queen: an independent assessment of the whole evidence, with proper regard to the jury's opportunity to see and hear the witnesses [27]. The decision's contribution is chiefly an illustration of how that approach was applied to a trial involving changing accounts, delayed disclosure, partial DNA evidence and supporting witness evidence.
The Court's handling of the DNA evidence is specific to the evidence described in this case. The expert's comparison made the foetal profile approximately 41 million times more likely under the complainant-and-appellant hypothesis than under the complainant-and-random-unrelated-man hypothesis [23]. The Court did not convert that statistic into a finding of certainty. It expressly noted that the evidence was not absolute proof, while treating it as compelling evidence of likelihood [30]. The judgment therefore supports a careful distinction between the strength of a forensic likelihood assessment and proof that excludes every alternative.
For inconsistent verdicts, the Court's reasoning is similarly tied to the record. It considered that the count 3 acquittal could coexist with guilty verdicts because the evidence differed in quality: no other witness observed the bruises associated with count 3, whereas the rape counts had independent supporting evidence [30]-[31]. The judgment does not state that different evidence will always reconcile verdicts. It explains why these particular verdicts were reconcilable on this record.
In sentencing, the reasons identify the prior Queensland Court of Appeal decisions used as comparisons. R v LJ concerned extensive sexual offending by a biological father against his daughter, and R v HAD included rape sentences imposed for offences against a natural daughter [35]-[36]. R v VN concerned rape of a vulnerable young woman by a person who had become the de facto head of her family [41]. The judgment uses those authorities as comparisons when assessing the effective head sentence, not as a rigid sentencing formula [42].
The document provides no account of the law before M, no claim that this judgment changed the law, and no later decisions applying R v DCN. A fuller account of doctrinal development or subsequent treatment cannot be established from this judgment alone.
At [27], the Court said it must “undertake an independent assessment of the whole of the evidence”. In plain English, the appeal court had to examine the trial evidence for itself, rather than merely defer to the jury. But it also had to remember that the jury saw and heard the witnesses in person, an advantage the appeal court did not have.
At [29], the Court said it was open to the jury to accept the complainant's explanations for her earlier accounts and delayed disclosure, considered alongside Mr R's evidence. This means that the earlier statements did not automatically prevent a conviction. The jury could decide whether her explanation was credible in the circumstances, having regard to the other evidence.
At [30], the Court described the DNA evidence as “compelling evidence” of the likelihood that the appellant was the father, while recording that it was not “absolute proof”. The plain-English distinction is important: the DNA evidence strongly supported one explanation compared with a random unrelated man's, but the Court did not describe it as conclusive or as excluding all other possibilities.
At [31], the Court explained that the count 3 acquittal was reconcilable with the other verdicts because of the “different quality” of the evidence. Put simply, a jury could have reasonable doubt about the assault charge while being sure of the rape charges, because the evidence supporting those charges was not identical.
At [32], the Court concluded there was “no significant possibility that an innocent person has been convicted” on counts 1, 2 and 4. This was its conclusion after considering the whole evidence under the unreasonable-verdict ground. It was not a prediction about other cases.
At [42], the Court said the 12-year effective head sentence was “neither unreasonable nor plainly unjust”. In context, the Court was rejecting the application for leave to appeal against sentence after considering the offending, the relationship between the appellant and complainant, and the comparator cases described in the judgment.
The decision is most directly relevant to an appeal alleging that a jury's guilty verdict is unreasonable because of credibility concerns or inconsistencies in a complainant's accounts. The factual pattern here included an earlier police interview in which the complainant named different explanations for the pregnancy and denied that the appellant had acted inappropriately, followed by trial evidence that those statements were lies [11]-[12]. The Court's method was to examine whether the jury could assess those inconsistencies alongside the complainant's explanations and the remaining evidence [27]-[30].
It is also relevant where forensic evidence is probabilistic rather than conclusive. Here, the foetal tissue produced only a partial DNA profile, and the expert's comparison was with a random unrelated man, not with AB or the appellant's son [23]. The Court's analysis kept the limits of that evidence in view while recognising its probative weight [30]. The case does not determine how a different DNA comparison or different statistical evidence should be assessed.
The decision also provides an example for arguments that a conviction on one count is inconsistent with an acquittal on another. The Court examined whether the evidence was materially different between the counts, rather than treating the acquittal as automatically undermining the convictions [31]. Its conclusion depended on the lack of another witness observing the bruises alleged for count 3 and the additional supporting evidence relevant to the rape counts [30]-[31].
For sentence appeals, the case concerns serious sexual offences committed by a biological father against his daughter over an extended period, including a count associated with pregnancy, and the appellate review of concurrent terms producing an effective head sentence of 12 years [38]-[42]. Its sentencing discussion is fact-specific and should not be read as fixing a general tariff.
The judgment itself does not describe any later court treatment of R v DCN. It was delivered on 7 May 2025 and the supplied text contains no subsequent judgments applying, distinguishing, or criticising it. It would therefore be unsupported to state that later courts have adopted or limited its reasoning.
The authorities it discusses are earlier authorities, not later treatment of R v DCN. M v The Queen is applied for the appellate approach to an unreasonable-verdict ground [27]. R v LJ and R v HAD are considered as sentencing comparisons [34]-[36]. R v VN is considered as a further comparable sentencing decision [41]-[42]. The judgment also records that the sentencing judge had considered R v PAD and R v CAP, but the Court's detailed sentencing comparison in its own reasons focuses on LJ, HAD and VN [34]-[42].
Any assessment of later treatment would require subsequent judgments or legal sources not included in the supplied material. The present analysis is limited to what this judgment says about its own reasoning and the authorities it cites.
The judgment does not decide whether the DNA evidence would have had the same force if the relevant alternative alleged father had been tested. The defence relied on the fact that AB had not been DNA tested, and the expert had no reference samples from the appellant's brother or a son of the appellant [4], [23]. The Court treated the evidence as compelling relative to a random unrelated man, but did not resolve what the comparison would show for a related male.
The reasons also do not set out a general threshold for when an acquittal on one count makes convictions on other counts irreconcilable. The conclusion at [31] turns on the evidence particular to count 3 and the supporting evidence particular to counts 1, 2 and 4. The judgment does not attempt an exhaustive statement of the circumstances in which different verdicts may or may not be reconciled.
The medical evidence about the alleged anal rape was limited. Dr Stone found no abnormality on examination but explained that an anal fissure could be difficult to see and could not be excluded by the examination performed [21]. The Court considered that the complainant's account was not contradicted by the medical evidence; it did not treat the examination as independently confirming the alleged injury [30]. The judgment does not determine how a materially different medical examination or expert opinion would affect an unreasonable-verdict assessment.
Finally, the sentencing reasons do not supply a broad range for all offending involving a parent and child. They address the particular sentences, circumstances and authorities before the Court, and conclude that this effective head sentence was not manifestly excessive [34]-[42]. Questions about different offence dates, victim ages, pleas, offending patterns, personal circumstances or sentencing legislation would need to be assessed against the relevant materials for those cases.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v DCN [2025] QCA 62
PARTIES: R / v / DCN / (appellant/applicant)
FILE NO/S: CA No 142 of 2023 / DC No 336 of 2023
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Townsville – Date of Conviction & Sentence: 27 July 2023 (Devereaux SC CJDC)
DELIVERED ON: 7 May 2025
DELIVERED AT: Brisbane
HEARING DATE: 21 November 2024
JUDGES: Mullins P, Boddice JA and Martin SJA
ORDERS: Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of three counts of rape of his biological daughter – where the complainant was interviewed by police after she underwent a termination of pregnancy when she was 17 years old – where the complainant asserted that she became pregnant after a casual sexual encounter or was raped by one of her brothers – where the complainant explicitly excluded the appellant as the offender – where the complainant gave evidence at trial that those statements made to police were lies and that she was raped by the appellant – where there was some independent DNA evidence and other witnesses’ evidence that supported the complainant’s evidence – whether the verdicts on counts 1, 2 and 4 were unreasonable or insupportable having regard to the evidence adduced in the trial / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was found guilty of three counts of rape (counts 1, 2 and 4) – where the appellant was acquitted of one count of assault occasioning bodily harm (count 3) – where there was independent DNA evidence and other witnesses’ evidence relating to counts 1, 2 and 4 that supported the complainant’s evidence – where there was a lack of evidence from any witness other than the complainant regarding count 3 – where there was a difference in the quality of evidence between the evidence for count 3 and the evidence for counts 1, 2 and 4 – whether the acquittal on count 3 was reconcilable with the guilty verdicts on counts 1, 2 and 4 / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty of three counts of rape following a trial – where the offending was aggravated by the appellant being the biological father of the complainant and the offending was committed over a period of about two years – where the appellant showed no remorse – whether the sentence was manifestly excessive / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited / R v HAD [2006] QCA 464, cited / R v LJ [2004] QCA 114, cited / R v VN [2023] QCA 220, cited
COUNSEL: The appellant appeared on his own behalf / J D Finch for the respondent
SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 27 July 2023 the appellant was convicted after trial in the District Court before a jury of three counts of rape (counts 1, 2 and 4). Those counts had the circumstance of aggravation that each offence was a domestic violence offence. The appellant was acquitted of assault occasioning bodily harm while armed (count 3). The complainant was the appellant’s biological daughter. Count 1 was particularised as being committed on an unknown date between 1 January and 21 December 2017. Count 2 was particularised as being committed on an unknown date between 10 August and 2 September 2017. Count 4 was particularised as being committed on an unknown date in 2019.
The appellant was sentenced to seven years’ imprisonment for count 1, 12 years’ imprisonment for count 2 and eight years’ imprisonment for count 4 to be served concurrently. A presentence custody declaration was made in respect of the 580 days spent in presentence custody between 24 December 2021 and 26 July 2023.
The appellant was represented by counsel and solicitors at the trial but appears for himself on the appeal. The appellant did not give or call evidence at the trial. The defence contention at the trial was that the complainant’s evidence was neither honest nor reliable.
Grounds of appeal
The convictions on counts 1, 2 and 4 were unreasonable and not supported by the whole of the evidence or were otherwise unsafe and unsatisfactory.
The jury could not have been satisfied beyond reasonable doubt on counts 1, 2 and 4 that the appellant was the biological father of the foetus terminated by medical intervention on about 21 December 2017 at the direction of the complainant because, either individually or cumulatively:
the complainant had given a number of names of the father of the child, including a half-sibling AB and another alleged as the offender;
the DNA expert Mr Nurthen could not exclude the half-sibling, AB, being the biological father of the terminated foetus, because AB had not been DNA tested and no comparison was made between his DNA and that of the terminated foetus.
The convictions on counts 1, 2 and 4 are unsafe and unsatisfactory in that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the appellant had raped the complainant as alleged because:
the complainant had provided to police a number of alleged offenders as the father of the terminated foetus which gave rise to count 2;
the witness Mr R gave evidence as to the smell of fresh “semen” on the complainant as she walked on the way to the bathroom/toilet but the evidence shows that the closest point to the appellant between the bedroom door and the bathroom would have been when the complainant first exited the bedroom – lead as discreditable conduct/uncharged act;
the complainant gave evidence that she had no-one to tell about the alleged abuse, but the evidence showed that the complainant had:
been able to travel from Palm Island to Townsville to relatives when she wanted;
her own mobile phone;
numerous relatives visited her in hospital in Townsville when she had the termination of the foetus in December 2017;
the jury acquitted the appellant of count 3 – assault occasioning bodily harm whilst armed.
The sentence was, in the circumstances, manifestly excessive.
Summary of the evidence
The complainant was born in 2000. Her biological mother’s name is shown on her birth certificate (exhibit 3) but no father’s name was recorded. Until 2010, she lived as part of the family for whom the pseudonym of Foster will be used. The complainant called Mr and Mrs Foster her Mum and Dad. Mr and Mrs Foster separated in 2010 and the complainant stayed with Mrs Foster. Mr Foster moved to Palm Island.
The complainant’s evidence in chief included the following. The complainant spent time with Mr Foster on Palm Island when she was in year 5 and went to school there for a few months. The complainant met the appellant for the first time in 2010. That was when the complainant met her half-siblings, including AB. The complainant finished school in year 11. Mrs Foster did not want to care for the complainant anymore. Some time in 2017 the complainant called the appellant and asked if she could stay with him at his place and he invited her to stay with him on Palm Island. The complainant made her own way to Palm Island and waited at the appellant’s home for him to arrive.
On the first night at the appellant’s home, the complainant slept on a mattress on the floor of the room occupied by the appellant at that stage. An 11 year old sibling was also sleeping on the mattress. The complainant woke up when something heavy was on top of her. It was the appellant who had his penis inside of her and was sexually penetrating her vagina (count 1). He put his hand over her mouth and told her to “shoosh”. The complainant had not been wearing underwear but was wearing shorts that were pulled down. Her sibling remained asleep. The complainant cried. She was not sure whether the appellant ejaculated or was wearing any protection. It ended when he got up and walked out of the room. The complainant did not tell anyone what happened at that stage.
After what happened on the first night, the complainant slept in the lounge room on the long couch. Her siblings would always be around. A couple of weeks after the first incident, the complainant was asleep on the couch lying on her belly and wearing a singlet and boardshorts, when her shorts were down and the appellant was on top of her, telling her to “shoosh”. He was sexually penetrating her vagina with his penis (count 2). His hands were covering her mouth and she was telling him to “please stop”. There was no one else in the lounge room. The complainant did not know whether the appellant ejaculated or whether he used a condom. The complainant was squirming, as the appellant was pinning her down and he stopped. The complainant cried on the couch for a few minutes and then went outside for a smoke. The complainant did not tell anyone at this time about this incident.
A few weeks later when the complainant had returned home from work, the appellant dragged the complainant down the hallway to the bathroom door, he grabbed a metal bat belonging to one of the complainant’s brothers and hit the complainant with it on her head, knees, legs and back (count 3). She had bruises on her right side thigh and calf, upper back, right eye and left arm and a lump on her head. She did not see a doctor about those injuries. When the appellant was hitting her, he called a “slut”, a “tramp” and a “whore”.
“I’m hurt. I feel hurt that nobody gets to hear my voice or know how I feel, and that I’m not believed. And this is why it took me a long time to come forward.”
Each of Mrs Foster, Mr Foster, Mr Foster’s partner (Ms I) and the complainant’s mother gave evidence at the trial that the complainant never disclosed to any of them any offending of a sexual nature by the appellant against the complainant.
Ms I’s evidence also included the following. She had been in a relationship with Mr Foster for 12 years. They moved into the house next to the appellant’s house in 2012. When the complainant moved in with the appellant, Ms I saw the complainant when she ran down into the little shed out the back, mainly on Saturdays and Sundays. The complainant would sit by herself and Ms I would hear her cry.
Mr R is a friend of the complainant’s brother R. Mr R went to Palm Island for work in September/October 2017 for a couple of months and stayed at the appellant’s house. R, his partner, the complainant and the appellant were all living at the house. Mr R identified the appellant’s bedroom as the one next to the kitchen. The bedroom that Mr R slept in was on the opposite of the hallway to the appellant’s bedroom. The complainant slept in the appellant’s bedroom. There was only a queen-sized bed in that bedroom and no mattress on the floor. Mr R did not observe any of the offending but was able to give evidence of his observations of the relationship between the appellant and the complainant. Mr R described the appellant and the complainant as having a “partner relationship”. They slept in the same bed and would go places together and he was controlling of who she interacted with. One time Mr R was sitting in the lounge room after he came home from work and heard sexual noises coming from the room in which the appellant and the complainant slept. Mr R heard moaning and the bed banging up against the wall. He observed the complainant come out of the bedroom, walk in a hurry to the bathroom and he could smell fresh semen. Mr R saw the appellant come out of the bedroom a bit later. Both the appellant and the complainant went back into the bedroom.
There was preliminary complaint evidence from the partner. They were at Mossman having an argument when the complainant told him she was raped by the appellant at his house on Palm Island where she was staying. The complainant told him that she had been pregnant before with her father’s child. The partner accompanied her to the police station on the same day to make a statement about what happened to her. In cross-examination, the partner agreed there was a temporary domestic violence order between the complainant and him where the partner was the aggrieved made on 16 June 2021. The partner admitted to being convicted on 28 July 2021 of breach of a domestic violence order committed on 30 May 2021 (where the aggrieved was not the complainant) and convicted again on 15 September 2021 of contravention of a domestic violence order committed on 14 October 2021 and breach of probation (where he was not sure whether the complainant was the aggrieved). He was convicted on 23 June 2022 of a contravention of a domestic violence order (where the complainant was not the aggrieved). He was sentenced to nine months’ imprisonment when he was convicted of three contraventions of domestic violence order on 16 June 2023 and was serving that sentence when he gave evidence. (It was clarified in re-examination that the complainant was the aggrieved for the three breaches dealt with on 16 June 2023.) Police were called to their residence on 8 August 2021 when he and the complainant had an argument about marijuana and there was a smashing of plates and a bag of rice was thrown.
Were the verdicts of guilty unreasonable?
Even though grounds 2 and 3 are expressed as separate grounds of appeal, they raise matters that are relevant considerations for whether the convictions on counts 1, 2 and 4 were unreasonable or not supported by the whole of the evidence. Grounds 2 and 3 will therefore be considered in conjunction with ground 1.
The role of this Court on the appeal where the ground of appeal is the unreasonableness of the guilty verdicts is to undertake an independent assessment of the whole of the evidence and determine, whether, as a question of fact, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of counts 1, 2 and 4 without disregarding the consideration that the jury had the benefit of seeing and hearing the witnesses during the trial: M v The Queen (1994) 181 CLR 487 at 492-495.
Each of the arguments that are advanced by the appellant on the appeal were put before the jury in his trial counsel’s address to the jury. It was a matter for the jury to assess the credibility and reliability of the complainant in the light of her statements to the police in the interview on 6 February 2018 that she fell pregnant from a casual sexual encounter in Mossman in July 2017, her brother AB had raped her, and the appellant had never done anything inappropriate to her, all of which she claimed in the trial were lies. In addition, the jury had the benefit of the complainant’s evidence as to her reasons for why she did not disclose her father’s offending against her, including that he told her that no one would believe her, until it came out in the argument with the partner in July 2021.
It was open to the jury to consider the complainant’s explanations as to why she lied about how she fell pregnant in 2017 and why she did not disclose the offending for some four years after it first occurred in the context of the evidence of Mr R as to his observations of the “partner relationship” between the complainant and the appellant in the latter part of 2017 and for the jury to accept the complainant’s explanations as credible in the circumstances that she described.
The jury had to be satisfied of the credibility and reliability of the complainant’s evidence in respect of each of counts 1, 2 and 4 before a guilty verdict could be returned in respect of any of those counts. There was some independent evidence in support of the complainant’s evidence that she had been raped by the appellant. The most significant independent evidence was Dr Nurthen’s evidence that the DNA profile of the aborted foetus was approximately 41 million times more likely to have occurred if the foetus was the offspring of the complainant and the appellant, rather than if the foetus was the offspring of the complainant and a random unrelated man to the appellant. As the trial judge had directed the jury, Dr Nurthen’s evidence was not absolute proof that the appellant was the father of the foetus. It was compelling evidence, however, as to the likelihood that the appellant was the father of the foetus. Ms I’s observations of the complainant running down to the little shed at the back and hearing her crying provided some support of one small aspect of the complainant’s evidence. Some reliance could be placed by the jury on the preliminary complaint evidence from the partner and Detective Tulacz as supporting the complainant’s credibility and reliability, even though the details provided by the complainant to those witnesses of the rapes were in brief terms. Dr Stone did not detect an anal fissure on his examination of the complainant but he explained that did not exclude the possibility of presence of an anal fissure as a consequence of the anal rape. The complainant’s evidence about her feeling of a lump or scarring in that area was not contradicted by Dr Stone, as he conceded the possibility.
Was the sentence manifestly excessive?
At the date of sentence, the appellant was 50 years old. He had a prior criminal history that was minor and largely irrelevant other than the conviction on 7 May 2021 for contravention of domestic violence order (aggravated offence) committed on 13 December 2019 against the complainant. On the same occasion, the appellant was convicted of assault occasioning bodily harm committed on the same date against Mr Foster. The one punishment of community service for 50 hours was imposed for both offences. The appellant otherwise had a good work history and contributed to community activities.
The trial judge identified the seriousness of the appellant’s offending as a “terrible betrayal of the role of a father” and described the appellant as remorseless in respect of his offending. The trial judge took into account the four authorities to which reference had been made in submissions of R v LJ [2004] QCA 114, R v PAD [2006] QCA 398, R v HAD [2006] QCA 464 and R v CAP [2009] QCA 174. The most relevant authorities were LJ and HAD.
The offender in LJ had been convicted after trial of six counts of indecent dealing with a child under 12 years, seven counts of incest, one count of assault occasioning bodily harm and one count of sodomy, all committed against his biological daughter. He was sentenced to 14 years’ imprisonment in respect of the first incest count committed when the complainant was about 12 years old and to lesser concurrent sentences in respect of the remaining counts. The offender’s application for leave to appeal against sentence was refused. The offending against the complainant commenced when she was seven years old and involved touching of her breast area and genitals. From when she was about nine years old, the offender required her to sleep in his bed and committed some of the offences in that context, having full sexual intercourse with her for the first time when she was 12 years old. The assault occasioning bodily harm involved a severe beating with a strap and the sodomy was committed as part of that punishment. The conduct continued until the complainant was 18 years old. The offender was 59 years old at the time of sentence and the offences had been committed when he was aged between 20 and 30 years. Holmes J (as her Honour then was and with whom McPherson and Williams JJA agreed) described the aggravating aspects of the offender as being the natural father of the complainant and the extended period of offending over 11 years “with real depravity about it”.
The offender in HAD was convicted after trial of one count of sodomy, eight counts of incest, two counts of rape and one count of indecent treatment of a child. He had pleaded guilty to a further 19 counts involving sexual abuse of young children. The sodomy, two counts of rape and seven of the counts of incest were committed against the offender’s natural daughter. The sodomy was committed when she was aged about six years and she was about 18 years when the offences of rape occurred and the other offences occurred when she was aged 17 to 18 years. The remaining count of incest and the indecent treatment involved the offender’s young niece. The other counts involved his stepdaughter, the niece and two girls who were friends of the other victims. Those offences occurred when those complainants were under the age of 16 years. The offender was sentenced to 13 years’ imprisonment for each rape and his effective head sentence was the sentence imposed for each rape. He was unsuccessful in appealing his convictions for the rapes. He was also unsuccessful in his application for leave to appeal against the sentences for the rapes. Jerrard JA noted (at [25]) that the offender was sentenced for sexual offences committed against his daughter at the beginning and end of a period of abuse of 10 to 12 years and that the sentence of 13 years for the charge of rape as a head sentence after trial was consistent with the sentence of 14 years upheld in .
Orders
Appeal against conviction dismissed.
Application for leave to appeal against sentence refused.
R
DCN [2025] QCA 62
(1994) 181 CLR 487
Appeal against conviction dismissed. Application for leave to appeal against sentence refused: [43].
The complainant attended a doctor on Palm Island in 2017 as she was suffering from headaches and nausea. She was pregnant. The father of the child was the appellant because she never went anywhere. She went to Townsville with the appellant and his sister. Mr and Mrs Foster were also at the hospital. She did not tell them what had happened. She was in hospital for a night and returned to Palm Island with the appellant and his sister.
The complainant was interviewed by police on 6 February 2018 and the s 93A statement that was recorded (exhibit 2) was played for the jury. The complainant was asked about the pregnancy. She offered the explanation that after a funeral in Mossman in July, she went with a couple of friends and cousins to a party and “got really wasted” and “did sleep with someone” and they had sex. She did not know the name of the person she slept with. She had never met that person before. He was a year older than her, had long hair and was “like white” with an Indigenous background. The complainant did not remember much of it. It was consensual. The police asked the complainant about information that had been provided to them about an allegation that AB had raped her. The complainant said she had told that to her father and oldest brother R but she was not going to “press charges”. The complainant stated that she knew AB raped her because “I seen him get off me and I seen him walk out and my pants and shorts were down”. It was not the first time that it happened. There were a couple of other times. AB would sneak into the complainant’s room and the complainant was scared to tell anyone. The complainant’s older sister and AB and their mother accused the appellant of molesting the complainant. The complainant said she used to sleep in the same room as the appellant but on the floor, because of AB. When the appellant asked her why she kept sleeping in his room, she told the appellant what AB did to her. In response to the question from the police as to whether her father ever did anything inappropriate to her, the complainant said “No”.
The complainant’s evidence in chief continued and included the following. The complainant did not remember telling the police about the party in Mossman where she had sex with someone and fell pregnant. There was no party in Mossman and she did not have sex with anyone in Mossman at a party. It was not true that her brother AB raped her and that was how she became pregnant. She told the police that because the appellant told her that no one would ever believe her. The appellant told her to tell another brother whose friend was Mr R that AB had raped her. Mr R had stayed at the appellant’s house. The complainant knew that the pregnancy was from the appellant because he was the only one “that doing those things” to her and she never went out. Sexual intercourse with the appellant continued two to three times a week until around November 2019. There was one time that was different to other times. The appellant penetrated his penis into her rectum (count 4) and “it hurt really bad”. The complainant cried, it was “so stinging”, she was in pain and it would not stop. Sometimes when the complainant goes to the toilet, it causes complications because there is a lump or scarring on her rectum. She feels it after she goes to the toilet. This rape was committed a few months before the complainant left Palm Island in January 2020.
The appellant told the complainant more than once that no one would believe her and people would be “after” her, if she told them what the appellant did to her, and the police would not believe her.
After the complainant left Palm Island, she met a man in Mossman who became her partner (the partner). During an altercation, she told the partner that the appellant had sexually abused her on Palm Island. The partner forced her to go to the police station on 25 July 2021 to report the rape.
The complainant’s evidence in cross-examination included the following. The appellant’s house was full of people on the first night she stayed there. When she woke up, there was somebody heavy on top of her front and her face was on the side. She was being held by the appellant’s hands and his arms. He had his arm over her mouth and with his other arm and hands, he was holding her down, so she could not wake up her brother. His legs were on top of her legs. His left hand was over her mouth. His penis was in her vagina and he was using his hand to push his penis inside her. The complainant did not look at him. She knew that it was the appellant as he was bigger than her brothers and a bit shorter than them and he did not smell like cigarettes or marijuana. She left the bedroom and lay down in the hallway and cried, after which she walked on the beach. She conceded she did not tell anyone about what the appellant did to her. She frankly admitted that she lied to the police in the interview on 6 February 2018. She denied that she was lying in giving her evidence in the trial.
When the complainant applied for a domestic violence order against the appellant in August 2019, she did not allege that he raped her but complained about the chores he made her do. In respect of count 2, the complainant did see the appellant as he was walking away from the couch. When the appellant assaulted her with a baseball bat (count 3), her aunt and uncle (whom she named in the trial) were present. She said she did not give their names to the police. The anal rape (count 4) occurred in the bedroom. She did not mention the anal rape when she gave her statement to the police in July 2021 or in her interactions with the police about domestic violence incidents. The first time she mentioned the anal rape was to the prosecutor on 6 June 2023. It was put to the complainant that she lied to the police about these allegations against her father because she was angry at him for his failure to be a father to her when she was young. The complainant denied that she made the allegations to get back at her father. In re-examination, the complainant was asked about the suggestion that she wanted to get back at her father and that she was angry at him. The complainant responded:
Dr Stone who is the Director of Emergency Medicine at Cairns Hospital and leads the Sexual Assault Examination Service examined the complainant on 14 June 2023. He did a limited examination of the complainant’s perianal region and did not observe any abnormalities. He did a visual examination and a digital rectal examination. The complainant’s evidence of stinging around the anus when she went to the toilet was raised with Dr Stone in cross-examination who explained that anal fissures were a common cause of those symptoms and that an anal fissure was a tiny little tear in the lining of the anus which was very difficult to see. In re-examination, Dr Stone stated that an anal fissure is not easily detectable on visual or digital examination and the possibility of anal fissures could not be excluded from the digital examination that he performed.
The Director of Maternal Foetal Medicine who was an obstetrician and gynaecologist at Townsville University Hospital, Dr Watson, gave evidence of the treatment of the complainant. An ultrasound had been conducted on 24 November 2017 that showed the foetus had gastroschisis where there is a defect in the abdominal wall through which the bowel contents come out through the baby. Based off the measurements taken off the ultrasound of 24 November 2017, conception was estimated at between 14 and 28 August 2017. The complainant requested for the pregnancy to be terminated, so labour was induced and that terminated the pregnancy on 21 December 2017.
Dr Nurthen who was a reporting scientist within the Forensic DNA Analysis Laboratory at Queensland Health gave evidence of his testing of the samples provided to him of the complainant, the appellant and the complainant’s biological mother. The effect of his evidence was that the appellant was the father of the complainant. Dr Nurthen received samples that were from the umbilical cord of the foetus taken from the complainant in December 2017. The tissue was in a wax block that can result in damage to the DNA over time. Dr Nurthen did not obtain a full DNA profile but obtained a partial DNA profile. There were 16 or 17 locations out of 20 locations in respect of which Dr Nurthen could do the comparison. Dr Nurthen compared the DNA profile obtained from the appellant with the DNA profile obtained from the complainant and the DNA profile obtained from the tissue from the foetus. He concluded that the appellant possesses “all of the obligate paternal alleles” and the DNA profile is approximately 41 million times more likely to have occurred if the donor was the offspring of the complainant and the appellant, rather than if the donor was the offspring of the complainant and a random unrelated man to the appellant. During cross-examination, Dr Nurthen accepted that a son of the appellant would have 50 per cent of the alleles of the appellant. Dr Nurthen did not have any reference samples from the appellant’s brother or any son of the appellant for the purpose of doing the comparison with the foetal DNA.
Detective Tulacz who spoke to the complainant when she attended the Mossman police station by herself on 23 July 2021 gave evidence of the preliminary complaint made to him by the complainant. The complainant told him that she wished to report multiple rapes committed by her father against her when she was residing on Palm Island. She also told him that she became pregnant as a result of the rapes and that pregnancy was later terminated at the Townsville Hospital. The complainant attended with the partner on 25 July 2021 to make her statement.
Detective Roati who investigated the complainant’s allegations against the appellant gave evidence. The complainant had nominated three persons which she named (being an aunt and uncle and a brother of the appellant) as witnesses to the assault with the metal bat. None of those persons would provide a statement to Detective Roati. The appellant’s other children who had been at the house when the complainant lived there were either unable to be located or, if located, refused to give a statement.
The acquittal on count 3 is explicable by the lack of evidence from any witness who observed the bruises which the complainant described resulted from the assault. The different quality of the evidence for count 3 compared to the evidence for counts 1, 2 and 4 means that the acquittal on count 3 is reconcilable with the guilty verdicts on counts 1, 2 and 4.
The appellant does not succeed in showing that the verdicts of guilty on counts 1, 2 and 4 were unreasonable for any of the reasons asserted by the appellant or at all. There is no significant possibility that an innocent person has been convicted on counts 1, 2 and 4.
The trial judge took into account the respective submissions of the prosecution that the sentencing range was imprisonment for 13 to 15 years and the appellant’s trial counsel that it was 10 to 12 years. The trial judge noted the complainant’s victim impact statement and the continuing effects of the appellant’s offending on the complainant. The trial judge concluded that the overall sentence should be 12 years’ imprisonment imposed on count 2 to reflect the appellant’s total criminality.
It is relevant to whether the sentences imposed were manifestly excessive that the appellant was convicted after trial. The appellant’s acquittal of count 3 was in respect of a far less serious charge than the three counts of rape for which he was convicted. The appellant’s lack of remorse in respect of the rapes was therefore correctly identified by the trial judge. It was also relevant that the period over which the three rapes were committed was more than two years.
The appellant had not been the father figure in the complainant’s life during her childhood but she turned to him when she was 16 years old, she was rejected by other family members, and she needed a place to stay. The repugnant aspect of the appellant’s offending that he raped his biological daughter was a most relevant consideration in the sentencing, as was the case, and had been noted, in LJ. It was an aggravating aspect of count 2 that the rape resulted in the pregnancy which the complainant had to abort in December 2017.
It was apparent from the sentencing remarks that the trial judge accepted the evidence of Mr R as confirmation of the complainant’s evidence that there was continued sexual intercourse between the appellant and the complainant, apart from the specified acts of rape constituting counts 1, 2 and 4, that was relied on by the prosecution in the trial as relationship evidence for the limited purpose that it provided context for the evidence given by the complainant of the offending that was the subject of the indictment. It was also apparent from the sentencing remarks as a whole that, notwithstanding the trial judge’s acceptance of the context evidence, the appellant was sentenced only for the rapes of which he was convicted and not for a continuum of offending.
Apart from the authorities put before the trial judge, the respondent in this Court relies on R v VN [2023] QCA 220 as a relevant comparable authority, even though the complainant in that case was, in effect, the stepdaughter of the offender. The offender was convicted following a trial of three counts of rape, one count of assault with intent to commit rape and two counts of common assault. He was sentenced to 12 years’ imprisonment for each of the rapes with concurrent lesser terms for the assault with intent to rape and the assault. His application for leave to appeal against the sentences imposed for the rapes was unsuccessful. The offender had commenced a relationship with the complainant’s mother and became the de facto head of the family. He forced the complainant to have sex with him shortly before her 18th birthday. He then threatened her that he had captured a video of him having sex with her which he would post on social media unless she continued to have sex with him. The second rape took place a couple of weeks later. The third rape happened when she was returning from the shower to her bedroom with a towel wrapped around her. Apart from the three specific occasions, the complainant said there were other times when the offender forced her to have sex with him until she eventually stood up to him after which the assaults occurred. The sentencing judge’s remarks that the offender had raped a vulnerable, young woman who had trusted him were endorsed in VN at [32].
The above analysis of LJ, HAD and VN shows that the effective head sentence of 12 years’ imprisonment imposed after trial to take account of the total criminality of the appellant’s offending was neither unreasonable nor plainly unjust in the circumstances applicable to the three rapes of the complainant committed by the appellant over a period of more than two years in gross breach of his obligation as a father to care for, and protect, his biological daughter when she was particularly vulnerable and sought his help.