BBH v The Queen

On 25 January 2006 an indictment was presented against the applicant in the District Court of Queensland alleging a number of sexual offences against the Criminal Code (Q) (‘the Code’) in relation to his daughter (‘the complainant’). The complainant was born on 5 July 1983. The offences were alleged to have been committed at different times between 1987 and 1999. The indictment contained 12 counts. The first count charged that, between 3 July 1989 and 31 March 1999, the applicant had maintained an unlawful sexual relationship with the complainant contrary to s 229B of the Code. There were six counts of unlawful and indecent dealing when the complainant was under 14 and under 16 years of age. In four counts it was alleged that the applicant had sodomised the complainant. On another count it was alleged that he unlawfully procured the complainant to do an indecent act when the complainant was under 12 years of age.

After a trial by jury, the applicant was convicted on 17 May 2007 of the offence of maintaining an unlawful sexual relationship with the complainant, four offences of unlawful and indecent dealing with the complainant and four offences of sodomising the complainant. He was sentenced to 10 years imprisonment on each count, the sentences to be served concurrently.

The applicant's appeal to the Court of Appeal of the Supreme Court of Queensland was dismissed on 19 October 2007 1. On 24 December 2010 he applied to this Court for special leave to appeal against the decision of the Court of Appeal. He sought an extension of time. On 13 May 2011 the application for special leave was referred to an enlarged Bench by order of Gummow, Crennan and Bell JJ.

The application was concerned with the reception at trial of evidence, given by the applicant's youngest son, concerning an uncharged incident involving the applicant and the complainant, which the son said he had observed in 1994 or 1995. The son, who was 10 or 11 years of age at the time of the incident, said that while on a farm holiday with the applicant, the complainant and his older brother, he had observed the applicant and the complainant together at the caravan in which they were all staying. The complainant was undressed from the waist down and bending over. The applicant had his hand on her waist and his face close to her bottom. After making a statement to the police in 2005, the son volunteered to the applicant's partner that what he saw was consistent with the applicant looking for an ant bite or a bee sting. He gave evidence to that

The son's evidence was admitted, over objection, as propensity evidence tending to show ‘a guilty passion between the accused and the complainant.’ It should not have been admitted. It was equivocal. It could achieve relevance only by a process of reasoning conferring probative significance upon it by reference to direct evidence of the conduct it was adduced to prove. Its prejudicial effect was the invitation it offered to circular logic. Before considering how the evidence came to be admitted, it is necessary to refer to the counts of the indictment on which the applicant was convicted and the statutory provisions relevant to them.

Course of conduct sexual offences against young persons, defined in terms of maintaining a sexual relationship, are created by statute in four of the States and Territories 2. Analogous offences designated by the terms ‘persistent sexual exploitation’ and ‘persistent sexual abuse’ have been created in other States 3.

Section 229B of the Code, as enacted in 1989 4, relevantly provided that:

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

(1A) A person shall not be convicted of the offence defined in the preceding paragraph unless it is shown that the offender, as an adult, has, during the period in which it is alleged that he 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 paragraph ( 5) or (6) of section 210, on three 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.

…

(2) A person may be charged in one indictment with an offence defined in subsection (1) and with any other offence of a sexual nature alleged to have been committed by him in the course of the relationship in issue in the first-mentioned offence and he may be convicted of and punished for any or all of the offences so charged:

Provided that where the offender is sentenced to a term of imprisonment for the first-mentioned offence and a term of imprisonment for the other offence an order shall not be made directing that one of those sentences take effect from the expiration of deprivation of liberty for the other.

(3) A prosecution for an offence defined in subsection (1) shall not be commenced without the consent of a Crown Law Officer.’

Reference should be made briefly to sub-ss (1B) and (1C) because, in conjunction with other provisions of s 229B, they were amended and renumbered in 1997 5. As enacted, sub-ss (1B) and (1C) in effect prescribed aggravating circumstances in relation to an offence against s 229B(1). The two sub-sections imposed higher maximum terms of imprisonment of 14 years and life respectively according to whether the offender, ‘in the course of the relationship of a sexual nature’, had committed an offence of a sexual nature punishable by a maximum term greater than five years, but less than 14 years, or an offence punishable by a maximum term of 14 years or more. Sub-section (1D) is not material for present purposes 6.

The enactment of s 229B gave qualified effect to a recommendation in a Report to the Queensland Government in 1985, titled An Inquiry into Sexual Offences Involving Children and Related Matters (‘the Report’), by the Director of Prosecutions (‘the Director’) 7. The Director proposed the creation of a new offence-creating provision broader in scope than s 229B as eventually enacted. It would have provided, inter alia, that ‘[a]ny adult who enters into and maintains a relationship with a child of such a nature he commits a series of offences of a sexual nature with that child is guilty of a crime’ 8.

Section 229B was described in the Second Reading Speech as having been drafted ‘in recognition of the limited recall which many children, particularly those of tender years, have in respect of specific details such as time and dates of the offences and other surrounding circumstances.’ 9 Its drafting had been ‘tightened’ beyond that recommended by the Director to require ‘that the prosecution establish the sexual relationship by proving no fewer than 3 specific acts which would constitute offences of a sexual nature.’ 10

The enactment of s 229B predated the judgment of this Court in S v The Queen11, delivered on 21 December 1989. The appellant in that case had been charged on indictment with separate counts of carnal knowledge of his daughter. Each count covered a different period 12. The Court held that the Crown could not rely upon evidence of a number of offences within the period covered by a particular count, on the basis that any one of the alleged offences could fall within the description of the offence in that count. The enactment of provisions in other States and Territories analogous to s 229B was in part designed to

‘to create an offence, the component parts of which by their very nature may have occurred over a long period, in the past, and in circumstances in which precise recall of detail will not only be difficult for a complainant, but also may provide fertile ground for cross-examination of him or her on behalf of an accused.’

Section 229B...