BDF v The Queen [2022] HCATrans 231 (16 December 2022)

Last Updated: 19 December 2022

[2022] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B21 of 2022

B e t w e e n -

BDF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 11.45 AM

Copyright in the High Court of Australia

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.K. COPLEY appears for the applicant. (instructed by Martin Law)

MR C.W. WALLIS appears for the respondent. (instructed by Director of Public Prosecutions (QLD))

GAGELER J: Mr Copley.

MR COPLEY: May it please the Court. This application raises two interrelated questions of law of general and public importance, which are set out in the application book at page 79. They can be distilled to, perhaps, this proposition or question: can a defendant be convicted of maintaining an unlawful sexual relationship under section 229B where it is not established that they are guilty of more than a single unlawful sexual offence as principal in the section 7(a) sense against the complainant? Our submission, of course, is that the answer would be no.

In terms of the matter having general and public importance, I note that neither party has identified any decision which addresses the matter, other than in obiter. The Queensland Court of Appeal below was divided on the matter, and there are provisions in each State and the Australian Capital Territory and Northern Territory that are, very broadly, coordinate with section 229B. If I could delineate between those provisions a little further, there are set out at footnote 1 on application book 79 the New South Wales, South Australian, Australian Capital Territory and Northern Territory provisions, I submit, broadly follow the Queensland approach to the proof of relationship, requiring that a relationship per se be proved; albeit by reference to three – or some number – of discrete sexual offences.

GLEESON J: Mr Copley, what does “relationship” mean in this context? It must be an artefact. Does it mean anything more than an interaction between an adult and a child?

MR COPLEY: It is not specifically defined, but the Queensland Court of Appeal has consistently held that a relationship is one between the adult and the child which is kept up, there is some continuity or habituality of it over a period of time, and it seems that it is not even defined, even by authority, by reference to a minima. The authority which addresses that is The Queen v DAT, a decision of the Queensland Court of Appeal, which, from memory, is set out in our submissions.

Your Honours, the procedure, particulars, evidence and findings are summarised in our submissions in the application book. I have attempted to distil those two key propositions on the facts as found. Count 5 was a charge of indecent dealing, which was the – in this case – single charge where the applicant was found guilty as a section 7(a) principal. She was convicted on count 4 as a party within the sense of subsections 7(b), (c) and/or (d). Importantly, counts 4 and 5 were said to have occurred contemporaneously. Counts 2 and 3, where the applicant was convicted as a party, were said to have occurred on discrete occasions and separate to each other and to the occasion of counts 4 and 5.

Importantly, I would point also to the decision of the majority below at paragraph [28], which appears on the application book at page 54, where the majority noted that:

The trial judge did not make any specific finding in the reasons about any sexual conduct other than the conduct which was the subject of each of counts 2‑5.

That is important because what it means is that for our application there were only findings of four occasions of unlawful sexual conduct ‑ ‑ ‑

GAGELER J: Mr Copley, can we just concentrate on the question of construction that you say is of general importance? This may be oversimplifying things, but it seems to me that the majority says that section 7 can be brought to bear in determining whether there are one or more unlawful sexual acts for the purpose of section 229B, so it can be used to sort of build up the primary offence. The dissent effectively says, no, you need to find a completed offence before you bring 7(1)(b), (c) or (d) to bear. That may be oversimplifying things, but is that roughly the way it falls out?

MR COPLEY: Well, yes and no. I submit that Pickett and, indeed, the majority’s decision insofar as the accessorial liability under 7(b), (c) and/or (d) would apply to the applicant is – we do not cavil with the application in respect of the individual discrete offences. What we say is that the proposition in Pickett cannot apply to the element of maintaining; that is, the relationship.

GAGELER J: Which really brings me to the question – have you looked at our recent decision in O’Dea v Western Australia? Does that bear upon this issue in any way?

MR COPLEY: Yes, your Honour, I have, but my submission is that it does not because my reading of O’Dea is that it concerns the application of subsection 7(a) and whether or not a common unlawful intent can be imputed to a party by virtue of 7(a). We say that that does not apply here and, indeed, that was not the way that the case was conducted and not the way that the Crown particularised the case. They rather particularised count 11 by reference to the particulars which are set out in the application book.

STEWARD J: Could I just ask as a matter of clarification of the way in which you put your case. Am I right in thinking that your client was convicted under 229B as being primary liable?

MR COPLEY: Yes, that is so.

STEWARD J: In which case, do you deny that there was a relationship of some kind here between your client and the victim?

MR COPLEY: The victim was my client’s daughter, so there was a relationship in that sense. But we cavil with the proposition that there was an unlawful sexual relationship.

STEWARD J: All that is required for that is that you have a relationship that involves more than one unlawful sexual act over any period. You do not deny there was one unlawful sexual act for which she was primarily found guilty and you do not cavil with the proposition that she is also taken to have committed three other, I think, sexual acts. Is that not right?

MR COPLEY: That is so, yes. The difficulty, perhaps, is this – with the majority decision and, indeed, as I understand the Crown’s case now – that although subsections (7)(b), (c) and (d) may be available in relation to the rape counts, we say they are not available in respect of the maintaining because none of the unknown individuals who committed the rapes as principals themselves had a relationship – or can be shown to have had a relationship – with the complainant child.

GLEESON J: Mr Copley, can I just understand – are you saying that you accept that there was an unlawful sexual relationship between mother and child, but you take issue with the question of whether the mother maintained that relationship?

MR COPLEY: No. With respect, your Honour, we take issue with the proposition that there was an unlawful sexual relationship, insofar as it is required to be proved by the Crown.

GLEESON J: Why would not the facts which have, effectively – the particulars to count 11, that the mother enabled unlawful sex acts to occur in relation to the child in the mother’s presence, colour the relationship so that it could be said that the relationship involved multiple sexual acts, albeit that the mother was not always the perpetrator?

MR COPLEY: Because, for that very reason, that she was only engaged unlawful sexual conduct herself on a single occasion and that, we say, is insufficient to establish a relationship.

GLEESON J: So, does it come down to the meaning of “involve”?

MR COPLEY: It may, your Honour. Just on that point, could I take up, perhaps, from our written submissions and, perhaps, argue by way of example – it is not difficult to imagine a scenario where, on the Crown’s view of the way “relationship” should be interpreted, a defendant could be convicted without having had any sexual conduct with a child.

You could imagine, for example, an illicit business which prostituted underage children and an employee of that business might well have known who the victims were, and they might have known that the nominate criminals were abusing those victims and the victims had been abused on numerous occasions, but that theoretical defendant could, themselves, have had absolutely no interaction sexually with the children. Yet, if they were convicted as a party to an offence of rape or indecent dealing by an unknown principal, on the Crown’s view of it, they could also be convicted of maintaining where they simply had no sexual contact with the child.

GLEESON J: What is the matter with that?

MR COPLEY: In my submission, it is inconsistent with Parliament’s intention which is set out in the explanatory memorandum, which his Honour Justice McMurdo cited in his judgment. The purpose of the legislation is to get at unlawful sexual offending where there has been a relationship of sexual offending that has occurred over a period of time, with the concomitant allowances in proof that are entailed in that section. My submission is simple.

STEWARD J: In your example, Mr Copley, do you not need to also add that the relevant person is someone who has been aiding, enabling, counselling or procuring irrelevant offences?

MR COPLEY: Yes, by virtue of whatever their employment would be in that business, but, yes, your Honour.

STEWARD J: So, the question then becomes: why can such a person not fall within 229B(2)? Why should they not fall within it?

MR COPLEY: My submission is as simple as this: where there is no actual sexual contact, that would be, again, outside the intention of Parliament to capture the sort of relationship which is set out in that explanatory memorandum.

STEWARD J: All right. Thank you for that.

MR COPLEY: Thank you, your Honour. Your Honours, unless there was anything further, we would otherwise rely on our written submissions.

GAGELER J: Yes, thank you, Mr Copley. Mr Wallis.

MR WALLIS: Thank you your Honours, if the Court pleases. At the centre of the respondent’s argument is really paragraph [45] of the majority decision. Your Honours will find that at the application book pages 58 and 59. It turns upon the extent to which section 7, an accessorial liability, can annex to, what is termed by the respondent in the written submissions, an ambit offence under section 229B of the Criminal Code (Qld). Section 229B of the Criminal Code (Qld) might be thought to be somewhat unique in the sense that it requires constituent elements to be proved, one of which requires proof of what would otherwise be a substantive offence that falls within the Criminal Code itself.

One has regard to section 229B and the concurrence of the court, both the majority and the minority, is that at its core is the maintenance or habituality or regularity of a relationship. The respondent contends that the relationship should necessarily be given in this context, what might be colloquially referred to as a direct connection as between the actor and the child. And that is so because of the word “involved”. When one has regard to section 229B(2) and (3), the relationship is one that involves – not defined by, but involves unlawful sexual acts.

Then, on the issue of construction, where one proceeds through to subsection 10, within that is a definition of unlawful sexual acts that is made up of offences of a sexual nature. Within that definition is reference to the term “offence”, which is given specific meaning within sections 1 and 2 of the Criminal Code, as this Court has recently recognised, and the coordinate provisions in Western Australia in Pickett v The Queen. So, the respondent’s position – or the respondent’s submission, I am sorry – is that the relationship need not involve the offender being the actor, in our respectful submission; it turns upon the issue of liability. The establishment of the unlawful sexual act is required as a threshold and it is in the consideration of that threshold proposition that section 7 applies.

So, the majority’s conclusion, in the respondent’s submission, was correct, and the respondent contends that the alternative proposition advanced by his Honour Justice McMurdo is unduly restrictive, and not worn out on a proper interpretation of the totality of section 229B. His Honour Justice McMurdo posits at paragraph 17 that the requirement is a requirement that the Crown prove that the acts themselves – the unlawful sexual acts themselves – were committed by the accused person or the person charged. And that just does not sit comfortably, in the respondent’s submission, with the extended accessorial liability that is available when one engages with Pickett.

The concept of accessorial liability applying to individual elements within the construct of a primary offence is not something that is novel. In fact, this Court in Barlow v The Queen recognised that at page 14, that accessorial liability can apply, so far as the element of conduct, to the actor and the secondary offender, and in circumstances where the secondary offender possesses a state of mind different to that of the actor, then that secondary offender may be liable to a more serious offence.

The respondent submits the centrality of this application turns upon whether the majority were correct in their construction, and the respondent contends that they are. By a process of example, when one has regard or consideration to the way in which his Honour Justice McMurdo posited the alternate proposition – that is, that proof of acts by the actor was essential – then that would lead, the respondent submits, to quite perverse results.

In circumstances where a person may aid, enable or encourage a multiplicity of other persons to engage in unlawful sexual acts as the actor, but individually and separately themselves not making up a section 229B relationship, the person involved in all of those coordinate acts – the aider, enabler or encourager; the accessory – would still be consistently involved in a relationship with that child. To sheet home responsibility only to the actor would mean that that the actor was responsible for the substantive intermingled offences and the accessory would only be liable for the intermingled offences despite the fact that there was a habituality or regularity, a maintenance, a connection, as between the accessory and the child themselves.

So, that is why the respondent contends that the majority conclusion arrived at in paragraphs [45] and [46] of the judgment were correct and as a consequence there is no matter of general importance that arises here. This is a simple case of statutory construction turning upon principles recently considered by this Court as far back as Barlow and Pickett. In the respondent’s submission, O’Dea changes nothing in relation to the way in which the prosecution was running this case, so far as there being no allegation of joint criminal enterprise; this was simply the applicant was liable because she herself maintained an unlawful sexual relationship that
involved her being liable for the acts, or the elements of conduct, committed by others because of that accessorial extension.

That is the extent of my submissions. Thank you, your Honours.

GAGELER J: Thank you, Mr Wallis. Mr Copley, do you have anything in reply?

MR COPLEY: No, thank you, your Honours.

GAGELER J: Thank you. We will adjourn momentarily to consider the course we will take.

AT 12.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.13 PM:

GAGELER J: We consider there to be insufficient reason to doubt the correctness of the decision of the majority of the Court of Appeal to warrant the grant of special leave. Special leave to appeal is refused.

The Court will now adjourn until 12.30 pm.

AT 12.13 PM THE MATTER WAS CONCLUDED