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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v Kratzmann  QDC 103
JAMIE EDWARD KRATZMANN
3 June 2020
26, 27 May 2020
Barlow QC DCJ
Count 1 – Guilty of indecent treatment of a child under 16
Count 2 – Not guilty
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – MENS REA, HONEST AND REASONABLE MISTAKE AND RECKLESSNESS – defendant charged with indecent treatment of a child under 16 years – complainant was 14 years old at the time of the alleged offences – whether defendant had a reasonable belief that the complainant was 16 years or older
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – SEXUAL INTERCOURSE – defendant charged with rape – not in dispute that sexual intercourse occurred – circumstances of that sexual intercourse in dispute – whether sexual intercourse occurred when and where the complainant said it occurred
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – defendant charged with indecent treatment of child under 16 – whether defendant had any belief as to complainant’s age – whether any belief as to complainant’s age reasonable
Criminal Code Act 1899 s 24, s 210, s 229, s 349, s 615B, s 615C
Azadzoi v County Court (2013) 40 VR 390, cited
R v Cotic  QCA 435, applied
R v Markuleski (2001) 52 NSWLR 82, applied
R v Mrzljak  1 Qd R 308, applied
Z Kaplan for the Crown
J Goldie for the Defendant
Office of the Director of Public Prosecutions for the Crown
MacDonald Law for the Defendant
Elements of the alleged offences4
Alternative count 15
The complainant’s evidence6
The police interview6
Evidence in court8
Other Crown evidence10
Detective Sergeant Hauff10
The defendant’s evidence and other statements13
Evidence in court19
Factors relevant to the complainant’s credit21
Overall assessment of complainant’s credit21
Cross-examination as to complainant’s motive to lie21
The complainant’s behaviour after the incident23
Defence – mistake of fact24
Findings as to credit27
Findings of fact29
Conclusions and verdicts31
- The defendant is charged with the following offences:
Count 1: that on or about the seventeenth day of December, 2018 at Freestone in the State of Queensland, JAMIE EDWARD KRATZMANN unlawfully and indecently dealt with [the complainant], a child under 16 years.
Alternatively: that on or about the seventeenth day of December, 2018 at Freestone in the State of Queensland, JAMIE EDWARD KRATZMANN unlawfully and indecently assaulted [the complainant].
Count 2: that on or about the seventeenth day of December, 2018 at Freestone in the State of Queensland, JAMIE EDWARD KRATZMANN raped [the complainant].
- The particulars of count 1, including the alternative charge, are that the defendant touched the complainant on the breast or breasts and/or the vagina. The particulars of count 2 are that the defendant penetrated the complainant’s vagina with his penis.
- On 1 May 2020, an order was made, pursuant to s 615 of the Criminal Code Act 1899 (the Code), that the defendant be tried by a judge sitting without a jury.
- The defendant has pleaded not guilty to each count. I have conducted the trial. It is my role to determine on the evidence whether the defendant is guilty or not guilty of each count.
- In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial by jury. If statute or the common law requires that information, a warning or an instruction be given to a jury, the judge in a trial by a judge sitting without a jury must take that requirement into account if it is relevant to the trial.
- In reaching a verdict, the judge may make any finding or give any verdict that a jury could have made or given, if the trial had been before a jury. Any finding made or verdict given by the judge has the same effect as a finding or verdict of a jury. The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact relied upon.
- A defendant in a criminal trial is presumed to be innocent. The Crown has the burden of proving, beyond reasonable doubt, the defendant’s guilt of each, or any, of the charges. Before I may find the defendant guilty on any count, the Crown must satisfy me, beyond reasonable doubt, of all the essential elements of the offence.
- In conducting the trial and in considering the verdict, I also adopt, with respect, the principles set out by Smith DCJA in R v MMH  QDC 70 at .
- I must reach my verdict only on the evidence presented in court. The evidence comprises what the witnesses said from the witness box or by telephone, or in a video or audio tape admitted into evidence, the admissions that have been made and the other exhibits. Nothing else is evidence.
Elements of the alleged offences
- In order to convict the defendant on count 1 (indecent treatment of a child under 16), the Crown must prove, beyond reasonable doubt, all the following facts.
- (a)The defendant dealt with the complainant.
“Deals with” means any act which, if done without consent, would constitute an assault as defined by the Code. “Assault” constitutes, among other things, striking, touching, moving or otherwise applying any force of any kind to the body of another person, either directly or indirectly, without the other person’s consent. It includes a touching of the child by any part of the defendant’s body.
- (b)The dealing was indecent.
- (c)The dealing was unlawful: that is, not justified, authorised or excused by law.
- (d)The complainant was under 16 years.
- The defendant’s counsel submits that I should find that the defendant believed, on reasonable grounds, that the complainant was 16 years or older. She submits that he took the steps that he admits having taken under an honest and reasonable, but mistaken, belief that she was at least 16 years old. If he held such a belief on such grounds, then he has a defence to the charge under s 210(1).
- Unless I find that the defendant had that belief on reasonable grounds and was mistaken in it, it is immaterial that he did not know the complainant was under the age of 16 or believed that she was not under that age.
Alternative count 1
- The alternative charge under count 1 (sexual assault) is only relevant if I find the defendant not guilty of the principal charge under that count because he held the relevant belief that she was sixteen or older. In order to convict the defendant on the alternative count 1, the Crown must prove, beyond reasonable doubt, the following facts.
- (a)The defendant assaulted the complainant.
I have set out the relevant elements of assault above. The main distinction is that, under the alternative count, it is necessary that the Crown prove that the complainant did not consent to being assaulted by the defendant. Consent must be freely and voluntarily given by a person with the ability to know and understand what they are doing in giving consent. It is not freely and voluntarily given if it is obtained by force, by threats or intimidation, by fear of bodily harm, by the exercise of authority, or by false or fraudulent representations.
- (b)The assault was unlawful.
- (c)The assault was indecent (as referred to above).
- This is an alternative charge to count 1. I may not therefore find the defendant guilty of both count 1 and the alternative. It is logical, therefore, that I consider first the charge of indecent treatment of a child under 16. If I find the defendant guilty of that count, I do not need to consider the alternative. But, if I find the defendant not guilty of the principal charge, then I should consider the alternative charge of sexual assault.
The prosecution must prove that the defendant penetrated the complainant’s genitalia with his penis. Any degree of penetration of her genitalia is sufficient and it need not be penetration of her actual vagina. It is not necessary for the prosecution to prove that the defendant was fully inside the complainant’s vagina, or that he ejaculated.
- (b)He did so without the complainant’s consent.
Consent is defined in the Code, as referred to above. It is a common word in everyday use. When it is used in the context of sexual intercourse, it means consciously permitting the act of sexual intercourse to occur. Consent may be defined as the agreement to, or the acquiescence in, the act of sexual intercourse by the complainant. Importantly, the defendant does not have to prove the complainant consented; the prosecution must prove that she did not.
The complainant’s evidence
- The complainant is an “affected child”. Her evidence primarily constituted a video recording of an interview that she had with a police officer on 18 December 2018 and a video recording of her evidence in court given on 8 August 2019. While the complainant gave the latter evidence, the courtroom was closed, the complainant was in a room separate from the court and had a support person sitting with her. The courtroom was also closed when the video recordings of both her interview and her evidence were played before me.
- The taking and playing of the complainant’s evidence in this manner are routine practices of the court and I do not draw any inference as to the defendant’s guilt because these measures were used to take and present her evidence. The probative value of the evidence is not increased or decreased, and I do not give this evidence any greater or lesser weight, because these measures were used.
- In considering my verdicts, I have reviewed the transcripts of the complainant’s evidence, but I have done so only for ready reference. The actual evidence is contained in the recordings and the transcripts are simply an aid to my understanding and recollection of those recordings.
The police interview
- In her interview with the police, the complainant said that, in the late afternoon of 17 December 2018, she was home alone at her father’s house (where she was staying temporarily, visiting him) when the defendant arrived. He started talking to her, had a beer and offered her one (which she declined). She felt uncomfortable and started cleaning up. Her father, Mr F, and a friend of his, Damien Wallace, arrived some time later, the defendant and Mr F went to feed Mr F’s calf and then the men all went into the kitchen and started drinking. Her father said she could have a drink if she wanted and so she joined them at the kitchen table and started drinking with them. Later, two other friends of Mr F, Vanessa and Caroline, arrived with pizzas, which they all ate while drinking. The complainant estimated that she had about 4 or 5 drinks during the evening, all rum and coke and mixed for her by the defendant. She did not feel pretty drunk and felt like she remembered everything clearly.
- Her father went to bed and Mr Wallace left at around 11.00pm. She went to say goodnight to her father and returned to the kitchen to finish her drink. At the time she was wearing a jumper, a singlet, a bra, underpants and Bronco shorts. The defendant was there and sat down next to her. He started trying to kiss her, feeling her legs and putting his hand up her shirt and touching her breasts. He put a hand up her shorts and touched the side of her vagina. She quickly pulled his hand out. She got up, said, “I’m going to bed now” and went to her bedroom and changed into her bed clothes, taking off her underwear and shorts and putting on a pair of pyjama shorts. (Apparently she retained her singlet. She did not mention removing her bra.) She then returned to the kitchen to get a glass of water. The defendant said, “What are you doing later?” and she replied, “I’m going to bed.” She went back to her bedroom and lay on her bed.
- The defendant then came into her bedroom and lay on top of her on the bed. He started kissing her. He said, “Kiss me babe, just kiss me,” bit her lip and her breasts and pulled her shorts down. She kept trying to push him off and saying, “No, no, no, I don’t want to do this.” She said she thought she was saying that loudly enough for her father to hear her from his bedroom. The defendant said it didn’t matter and he didn’t give a fuck. He took off her shorts and singlet while lying on top of her. He put his finger in her vagina and pulled down his jeans. She said he took his jeans off a couple of times: “sometimes he’d just pull ‘em down and then he’d stop and like pull ‘em up and you know, then take ‘em off.” When the police officer asked her why he would pull them down and then pull them up again, she said, “I don’t know. I think he was just really drunk. He didn’t know what he was doing. But all his weight was on top of me, like I couldn’t breathe half the time because he was literally laying on me.”
- The complainant said that, after putting his finger in her vagina, the defendant put his penis in her vagina. She said it hurt and she kept squirming and putting her legs up. Eventually he just got off her. She curled up in a ball, crying. He said, “Why are you so cranky? Stop being cranky.” She said, “I’m not cranky.” He continued to call her cranky and then said he would go and sleep on the couch. He left her room and did go to sleep on the couch.
- After a while, the complainant tried to call a number of her friends, but they did not answer. At 12.33am, she sent a text message to her boyfriend, CB, saying “[CB] I really need you” and at the same time she sent a text message to another friend, CF, saying “I need you.”
- Some time later, the complainant went into her father’s bedroom. She said, “Dad, Dad, Dad” until he woke up. She said she needed to talk to him. He asked what was wrong, she started crying and said, “I can’t tell you. I don’t know how to tell you.” He said, “Did Jamie get in your bed?” and she said, “Yes.” She could not stop crying and shaking. He kept asking her if she was alright and then he fell asleep. She eventually fell asleep.
- She woke at 5.00am and saw that the defendant had left. She had a shower and then went to her bed, where she told her boyfriend by text message what had happened. She said he got angry and said she should go to the police. When her father woke up, she told him she thought she should see a doctor and go to the police, which they did at about 8.00am.
- When asked to describe any injuries she had suffered, the complainant said she had marks on her left shoulder, where she thought the defendant had bitten her; he bit her lip (which was swollen), her jaw and her hip (which she said did not show any marks – it just hurt); her inner thighs hurt a lot and the outside of her vagina hurt badly and was really swollen. She said her head also hurt, but she did not know why.
- She said she did not think that she did anything that would have made the defendant think she was consenting to having any sort of sex with him and she did not say she wanted him to do so.
- The complainant had met the defendant only once before, while camping with her father at Easter in 2018. She did not remember much about him on that occasion.
- When asked if the defendant knew how old she was, the complainant said that he had been friends with her father for a while and earlier that day he had asked her, “can you get your licence now?” and she had said she could not for two years. She had not had any conversation with him about going to school or what grade she was in.
Evidence in court
- In her evidence in court on 8 August 2019, the complainant confirmed that her statements in the police interview were correct. She identified a number of photographs of her father’s house, including of the kitchen and her bedroom, of her neck and lip and of text messages that she had exchanged on 18 December with CF and CB, both at 12.33am and later that morning.
- In her cross-examination the complainant agreed that, when she had been camping at Easter in 2018, she had been drinking alcohol and smoking cigarettes. She said that, in the evening of 17 December 2018, she did not drink alcohol until after her father and Mr Wallace had got home and over the course of that evening she had maybe five glasses of rum and coke, which were made for her. She was also smoking cigarettes.
- It was put to her that she had spoken with the defendant about driving and rolling her father’s car on an earlier occasion. She agreed that she had done that. She did not remember if she did or did not speak about it that evening. She said Mr Wallace left last, at about the time that her father went to bed. Mr Wallace had been on the couch for about five minutes before getting up to go home. She agreed that the walls of the house were thin and one can generally hear what is happening in the bedrooms through the walls.
- When asked how long the incident took, she said she did not have a clue. She agreed that she had told the police that it all happened quickly and she agreed that was the case. She then agreed that the incident of him coming in and having sex with her happened quickly as well. The defendant’s counsel, Ms Goldie, then put to her that she had told her friend, CF, in a text message that “he repeatedly raped me for over 2 hours.” She also told CB in a text that “it went on for like 2 fucking hours.” Ms Goldie asked her how long she now said it lasted and her answer was, “If that’s what I said there then it’s probably what it was. I have more clue back there than now.”
- In answer to further questions, the complainant agreed that her father had a caravan in a shed to the side of the house. Ms Goldie put to her that she did not tell the police anything about going out to the caravan with the defendant. She said no (that is, agreeing that she had not told them). Ms Goldie asked why she didn’t tell police about going out to the caravan and she responded, “Because it didn’t happen.” Ms Goldie then went on to put to her that she and the defendant had gone out to the caravan, they had been unable to open the door so she went to find the key, they had then opened the door and she had had consensual sex with the defendant inside the caravan. That stopped because she was sore, she performed fellatio on the defendant, they then resumed having sexual intercourse and stopped again because she was sore. They then returned to her bedroom, where they lay on her bed and started kissing until the defendant said he was going to sleep on the couch. The complainant denied all these propositions. She also denied that the rape that she had described never occurred and that she had consented to intercourse in the caravan. It was also put to her that she regretted having consensual intercourse with the defendant when she was in a relationship with CB, which she denied.
- Ms Goldie put to the complainant that she later exchanged text messages with her boyfriend, CB. The complainant agreed that in those messages he started getting angry, saying he had told her not to drink. Ms Goldie suggested she apologised and told him that she did not drink. Her response was, “Yeah, when he any – angry at – angry with me.” It was put to her that that was a lie. Her response was, “Yeah. I lied to my boyfriend.”
- The complainant agreed that, in the morning of 18 December, she had sent a Snapchat message to the defendant telling him that he had left his speaker behind. Ms Goldie put to her that the defendant had responded saying that he might have left his jocks behind at the house and she later told him that she had found the jocks, asked him what he wanted her to do with them and he told her to get rid of them. She said she did not remember anything about the messages after telling him about the speaker.
- When asked why she messaged him about the speaker when he had just raped her, she said, “I don’t know. I was just a dumb 14 year old.”
- Finally, Ms Goldie put that the complainant did tell the defendant that she was getting her licence, but did not say she was two years away from getting one. The complainant responded, “I did. He said, ‘Can’t you get your licence now?’ or something like that. And I said, ‘No, I still got two more years.’” She disagreed that she had not said that.
Other Crown evidence
Detective Sergeant Hauff
- Detective Sergeant Hauff is stationed with the Warwick Child Protection Unit of the Queensland Police. She was the investigating officer in this matter. She interviewed the complainant on 18 December 2018, organised for the complainant to make a pretext telephone call to the defendant on 19 December 2018 and interviewed the defendant on 22 December 2018.
- Det Sgt Hauff said that, when the complainant attended at the police station with her father, she appeared teary and upset. After an initial conversation with the complainant, she arranged for another police officer to take the photographs that became exhibits 3.1 to 3.11. Det Sgt Hauff took the pictures of the complainant and the text messages that are exhibits 3.12 to 3.15. After the defendant referred to the caravan in his interview a few days later, she did not organise for any police officer to attend to inspect or photograph the caravan.
- Her only other evidence of note was that the defendant is 191cm tall.
- Mr F is the complainant’s father. He owns the house and caravan in which relevant events are alleged to have taken place.
- He gave evidence about events that led to the gathering at his house on the evening of 17 December 2018. Those events are not really relevant to any issue in dispute, so it is unnecessary for me to relate them.
- He said that, having been out with the defendant and Damien Wallace, he arrived home with Mr Wallace at about 6.00pm. When he arrived home, the defendant was outside. He and the defendant went to feed his calf and then went inside. They and Mr Wallace had a few beers. His friends Vanessa Guy and Caroline Marburger arrived at around 7.00pm with some pizzas. After they arrived, he let the complainant join him and the defendant in drinking some rum and coke, which the defendant poured for her. Mr F said he and the defendant became drunk that evening, but the other adults did not. He said the complainant was also intoxicated, but he didn’t realise.
- He said that Ms Guy and Ms Marburger left at about 10.00pm, though he may be wrong about the time, and he thought Mr Wallace left about 20 minutes later. However, he could not remember Mr Wallace actually leaving and admitted that he could not really say at what point he left. He then went to bed, the complainant came in and kissed him goodnight and he went to sleep. When he is drunk he is a heavy sleeper.
- Mr F did not wake up until the complainant woke him, at 1.20am. He did not hear the complainant calling out before then. When she woke him, she was crying. He asked what happened and she said the defendant had raped her, had put his penis in her. Either then or later that morning, she told him that it had happened in her bedroom. He then went to the lounge room and saw a figure lying on the couch. He said he didn’t know if it was the defendant or Mr Wallace because it was dark. He did not know what to do so he went back to bed. He got up again at 4.00am, saw that it was the defendant on the couch, decided to confront him in the morning and returned to bed. The complainant slept the night with him in his bed. When he got up again later, the defendant had gone.
- Mr F was asked about his caravan. Relevantly, he said he always left it unlocked and he kept the keys in the door pocket of his car. He described the caravan as a pop top. When the roof is down, a flap of canvas drops down and has to be lifted up to close the door. He said that he was asked by a police officer, a few days later, to look at the caravan to see if anyone had been in there. He said he could tell that nobody had been in it because the flap was up, as he had left it some months earlier. He looked inside and did not see anything apart from a stubbie that he had left there.
- Mr F confirmed that, at Easter 2018, he and the complainant had been camping in his caravan and the defendant had joined them, although sleeping in his own swag. Mr F had bought the complainant two or three bottles of orange with alcohol, but she only drank one. She also smoked. He said the complainant was very familiar with the caravan and he believed she would have known where he kept the keys to it. He was not sure whether she knew that he left it unlocked when at home, although he thought she did. He also agreed that he would have told the defendant, probably not that night but on some occasion, that the complainant had rolled his car once when driving it.
- Mr Wallace is a longstanding friend of Mr F. He is also the defendant’s employer. He confirmed the events that led to the gathering at Mr F’s house on the evening of 17 December 2018 and that they shared pizzas after Ms Guy and Ms Marburger arrived with them. They also had a few drinks. Mr Wallace had a few “Gold stubbies” and did not become intoxicated. He said that the defendant and Mr F did become intoxicated, but not the others there (including the complainant).
- During the evening, Mr Wallace went outside to speak on his telephone. He estimated that he was outside for about an hour. He then went inside, lay on the couch and watched television and fell asleep there. He did not know how long he spent on the couch, but when he woke up it was quiet. He realised that Ms Guy and Ms Marburger had left. He could not, while giving evidence, remember whether he saw anyone in the kitchen when he woke, but he confirmed that his memory would have been better when he gave a statement to police in May 2019, in which he had said that there was nobody in the kitchen when he woke.
- Mr Wallace thought he left at about 10.00pm, but he agreed that it could have been later.
- Ms Guy gave evidence that, some time after work in the afternoon of 17 December 2018, Mr F and Mr Wallace arrived at her home and invited her and her housemate, Ms Marburger, to join them at Mr F’s house that evening for drinks to celebrate the defendant’s birthday. They agreed to go and to take pizzas for the group. She thought that she arrived at Mr F’s house at about 8.00pm.
- When she arrived, she saw that those already there (Mr F, Mr Wallace, the defendant and the complainant) were drinking. She thought Mr F and the defendant were a little drunk, Mr Wallace was not and the complainant “just seemed happy and more talkative.”
- She saw the complainant drinking rum and coke during the evening and saw the defendant mixing them for her. She and Ms Marburger left at about 9.30 to 9.40pm. At that time Mr Wallace was outside on his telephone and the other three were at the kitchen table.
- CF gave evidence by telephone. The probative value of his evidence is not increased or decreased because he gave it by telephone. Therefore, I do not give his evidence any greater or lesser weight than if it had been given in the witness box.
- CF said that, in the morning of 18 December 2018, he received some text messages from the complainant. He remembered “the context” of the messages, but he has not kept them.
- He said he also received some text messages from the complainant the evening before. He agreed that he had given a statement to police in June 2019, at which time he saw the messages. The complainant had sent him a message that her father’s friends were trying to get her to drink alcohol. She told him that she kept saying no. He told her to lock her door and go to sleep.
The defendant’s evidence and other statements
- The defendant did not have to give evidence, but he chose to do so. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is simply added to the evidence called for the Crown. The Crown has the burden of proving each element of each of the alleged offences beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Crown has proved the case before the defendant may be convicted.
- It is not a question of me making a choice between the evidence of the Crown’s witnesses and that of the defendant. The Crown case depends upon me accepting that the evidence of the Crown’s principal witness (the complainant) was true and accurate beyond reasonable doubt, despite the sworn evidence of the defendant. I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
- Where there is defence evidence, usually one of three possible results will follow. First, I may think the defence evidence is credible and reliable and that it provides a satisfactory answer to the Crown’s case, in which case I would find the defendant not guilty. Secondly, I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, I would find the defendant not guilty. Thirdly, I may think that the defence evidence (or some of it) should not be accepted. However, if that is the case, I must not automatically conclude that the defendant is guilty. I must set his evidence to one side and go back to the rest of the evidence and ask myself whether, on consideration of all the evidence that I do accept, I am satisfied beyond reasonable doubt that the Crown has proved each element of either count.
- Part of the Crown case was that Det Sgt Hauff arranged for the complainant to telephone the defendant on 19 December 2018. The call was recorded and that recording was played during the trial.
- The complainant told the defendant that she was in a lot of pain and wanted to tell her father because she had to go to the doctor as something was wrong. The defendant’s response was that she should say it was from a week before or something, or not tell her father why she needed to go to the doctor, or she should just make up something. He said, for example, that she should tell her father that she wanted to see a doctor about girl things. The following exchange then took place:
Complainant: He’s, he’s gonna want to know what happened, like –
Defendant: [Indistinct] --
Complainant: His f-, like his fourteen year old daughter is –
Defendant: [Indistinct] –
Complainant: In pain and I could have like –
Defendant: How old are you?
Defendant: How old are you?
Defendant: I thought you were like sixteen or seventeen or something.
Defendant: That’s like real bad.
Defendant: [That’s] real bad.
Defendant: Real bad. I’ll [like] go to jail, probably.
Complainant: That’s what I’m trying to say, like I don’t know what to do.
Defendant: Just, just say, just, I don’t know, just say you [got] a new boyfriend or something, like a –, just don’t say anything, just say you need to go to the doctor. You know what I mean? Just say girl troubles.
Complainant: I don’t know.
- A little later, the following further exchanges took place.
Complainant: I don’t know, can’t you just say sorry?
Defendant: Well, I did, like, but like, like you know what I mean, like?
Complainant: Like why did, why did you do that? Like, I didn’t want you to do that.
Defendant: What do you mean? You went [down to the caravan] with me. No?
Defendant: What do you want, what do you want, like what do you want me to do, like, do you want, how do you want me to sort this out? It’s proper bad, like –
Complainant: Like, you’re the one who did that.
Defendant: Yeah, I know. [How do you wanna] sort this out, that’s what I’m saying, like, you know.
Complainant: I don’t know, I just –
Defendant: What’s done is done, like we, we, you know, like I don’t want to g‑, go to jail over it. I don’t want, you know, [to piss your dad] either, you know.
Defendant: Yeah, well, how do you want to, you know, like I don’t want to go get fuckin, get locked up, or I don’t know what your dad [indistinct] –
Complainant: Why would you get locked up?
Defendant: ‘Cause it’s bad, I didn’t know you were that young.
Complainant: Yeah, you did.
Defendant: No, I didn’t know you were that young. I thought you were like sixteen or something.
Complainant: No, you didn’t.
Complainant: No, I’m pretty sure you didn’t.
Defendant: Yeah, I did. Well, when, um, well, yeah, well just let me know how you go. …
Complainant: You realise that, like, I didn’t want that.
Defendant: Well, I thought you did, otherwise I wouldn’t have done it.
Complainant: I really didn’t, because I kept saying no, I don’t want this. Do you remember me saying that?
Defendant: [Yeah, no, I popped myself on the couch. Went to] sleep on the couch.
Complainant: After like f-, how long? That, like that was ages after.
Defendant: [Indistinct]. Well, I said sorry, what, what more do you want from me? What else do you want me to --
Complainant: I just –
Defendant: Say or do?
Complainant: Don’t get why you did that after I repeatedly said no, I don’t want this.
Defendant: [Then I went to sleep] on the couch. …
- Det Sgt Hauff and Acting Senior Constable Chandler conducted an interview with the defendant on 22 December 2018. The defendant participated voluntarily in the interview and did not seek or have legal advice before or during it. At the time, he was not aware that his telephone conversation with the complainant had been recorded. He had been arrested that morning and charged with rape and indecent treatment of a child under sixteen. The Crown tendered the video recording of that interview.
- The defendant started by saying that he just wanted to get it sorted. He said that, at the end of the night, one thing led to another, he and the complainant went to the caravan, they had sex there and she was fine with it. She went to get the keys to the caravan and unlocked it beforehand and then locked it back up after they were done. Then he received a telephone call from her in which she said she was sore and didn’t know what to do. He said that he told her she should go to the doctor and get it sorted. He said she was going to have to tell her dad and he was going to shoot him. He said that, since then, he had received one Snapchat message from her saying something about “you rot in hell”.
- He repeated on several occasions during the interview that the complainant was fine about it and the sex was consensual. When told that the complainant now said it was not consensual, he said:
Well yeah, like that’s what I sorta don’t get, like she went. We were at that caravan obviously like so [Mr F] couldn’t hear it ‘cause he went to bed and, and like she went and got the keys for the caravan and unlocked it. … And then when we’re done, she like locked, locked the key back, like locked it back up. … I don’t get why this is suddenly rape. I don’t know, like it’s proper bad that she’s fourteen like, when she’s told me, when she rung me up, like. And I was like, shit, that’s when I said like, I’ll go to jail over this, like this is bad.
- He said the complainant had a couple of rums that evening, but she was not really intoxicated. He thought the others left at about 11.00pm, Mr Wallace first and then Ms Guy and Ms Marburger. Then Mr F was there for a bit and then he went to bed. Then “we just kept playin’ music and talkin’ and then one thing led to another.”
- When he was asked whether anything happened in the house, the defendant said:
Oh when we went inside after the caravan we went in, into her room and that. And, and then she said that she’s sore, sore, like just kissin’ her and that and she said she was sore and what and I said oh I gotta get outa here before [Mr F] wakes up and I went, went onto the couch and slept on the couch and left, left, I don’t know, 6 o’ clock in the mornin’ and everything was all good. Bloody. She text me and said oh you left your speaker here. I said yep. …
And then she, she Snapchatted me, sayin’ that you’d left your speaker here. And I said, oh thanks. And then I Snapchatted back. Um, I said where’s me jocks, like I don’t know where me jocks are. And, and then she like later on she Snapchatted me back sayin’ that she found ‘em and she said what do you want to do with ‘em? And I said, I don’t know, chuck ‘em, like.
- Det Sgt Hauff asked him how he decided that the complainant was sixteen. He said:
Defendant: Oh just, you know.
Hauff: Was that how old you thought she was?
Defendant: Oh I just didn’t, yeah.
- Det Sgt Hauff then put to him what the complainant had said about the events in the kitchen: namely, that he had kissed her, put his hands on her breasts and up her shorts. The most relevant parts of the conversation follow.
Hauff: And when you were in the kitchen, what happened there? Was there any sort of sexual activity there?
Defendant: Not really. I think I kissed her or somethin’.
Hauff: And what was her reaction to that?
Defendant: Oh [just started kissing] me back, like she was. That’s what I mean, like nothin’ was, nothin’ was outa the, you know, ordinary.
Hauff: And she said that you moved around and sat next to her on the chair. Um and she said that you were touching her then on her breasts and on her legs and also put your hand in her shorts and touched her. Do you remember that happening?
Defendant: No. I don’t [remember that.]
Hauff: So you don’t remember anything happening in the kitchen like that?
Defendant: Not really. I just kissed her a few times and hugged her. Like it wasn’t bad, like just, I just don’t get this whole situation like.
Hauff: And well, so in your mind, were you sure that she was sixteen?
Defendant: I didn’t really know, like she’s, she, when she rang me up, she’s like, you do realise I’m only fourteen, like.
Hauff: Yep. And what did you say when she said that she was only fourteen?
Defendant: I thought she was older. I’d just. I don’t know.
Hauff: So if it was that close but –
Hauff: You thought someone was that close, would you make sure that they were over sixteen?
Defendant: Just drunk, you know, just like, it didn’t seem to bother her like, I don’t know like.
Hauff: Okay. So um, [the complainant] said that after you touched her in the kitchen, that she said no and she got up and she was, she got ready for bed. And then she went back out in the kitchen again to get a drink of water from the fridge. Do you remember this?
Hauff: And she said that she then went back and sh-, to her room and was in bed and that you then came into her room and climbed on top of her.
Defendant: What? Like what’s? She didn’t mention the caravan at all?
Defendant: Or nothin’?
Defendant: Like what, what’s the go there?
Hauff: Well, I don’t know, that’s why I’m asking you.
Defendant: Well I dunno.
Hauff: So did you go in her bedroom and climb on top of her?
Defendant: We were in the bedroom after the caravan and then like, and then um yeah, we were just there layin’ and kissin’ and then she’s like oh I’m a bit sore and I said righto, and then we ended up. Yeah, I ended up goin’ out on the couch. She sorta half had the shits ‘cause I [went] on the couch like. I don’t know if she likes me and just, ‘cause I didn’t text her back, I didn’t Snapchat her, like if she hates me now or what, I dunno what, what the story is.
Hauff: Well, what, like I was saying, she said that you went into the bedroom. That you, you got on top of her and that you then um were kissing her and you pulled her pants down. She said that at some stage you bit her on the lip. Do you remember biting her?
Defendant: Oh [no], we were kissin’.
Hauff: Yep. And she said you’ve pulled down her pants in bed and that you’ve put your finger in her vagina. Would, would that have happened?
Defendant: Oh we were just, like just cuddlin’ and just muckin’ around and then she said she’s sore and that’s when I went out on the couch. That’s what I’m sayin’, like it was bugger-all. We didn’t have sex or nothin’ in the, in the bed.
Hauff: Was there any time that she said no, that she wanted to stop?
Defendant: Yeah, once we stopped in the caravan for a bit and then we went again …
Hauff: Was there times when you were having sex when she was like pulling her legs up and trying to move away from you?
Defendant: Not really.
Hauff: Or pushing on your shoulders and trying to push you off her? No?
Defendant: Like it’s, that’s what I mean, it wasn’t really. Like it was. She, she went to the caravan, like she unlocked the caravan. Like we were in the caravan, havin’ sex. … Like it wasn’t, you know.
A/SCON Chandler: When um when Detective Sergeant Hauff said to you, did she, did she try and stop you at any stage, did she bring her legs up, you said not really. What do you mean by that?
Defendant: Oh once she said she was sore like and just like you know pushed me back a bit and we stopped for a while. Like ‘cause she was sore but like that’s what I don’t get, like you say like, oh it sounds like I’ve actually held her down and raped her like when, when it wasn’t like that.
Hauff: Well she may have said that she’s tri-, she’s tried to push you off and, but she couldn’t because she wasn’t strong enough to.
Defendant: Mm. Well that’s rape, like you know like but I, I didn’t, like.
Chandler: So just describe for us or tell us what’s happened when she’s asked you to stop. Where were you and what’s happened.
Defendant: We just. Yeah I guess she was sore and like so we’ve stopped for a bit and then she’s, then we were yeah, just talkin’ and then we were right again, like just, I don’t know exactly but.
Defendant: In the caravan.
Chandler: And what, what did she do to indicate that she wanted to stop? What did she do and what did she say?
Defendant: Oh she said it hurts. It’s like it, it, it’s sore and like I said, I just. She’s like pushed back a bit and I just like got off her for a while and …
Chandler: What do you mean by pushed back?
Defendant: Oh, you know, like when you’re havin’ sex, you just sorta like push back a bit, like pulled, pulled myself away a bit.
Evidence in court
- The defendant elected to give evidence. He said that he first met the complainant when camping at Easter in 2018. Mr F introduced her as his daughter. She was drinking and smoking and partying. He thought she was there for a couple of days.
- He went on to describe the evening of 17 December 2018, including having a few rums and pouring the complainant some rums and coke. He mentioned that Ms Guy had bought him a bottle of rum for his birthday. He said that, after the others had left:
I was just talking to [the complainant], and then one thing led to another, and then we ended up going out to the caravan. I can’t remember if it was my idea or her idea; I honestly can’t remember, but we went to the caravan, and we went out there and tried to open the caravan door and it didn’t open, so she’s gone back in to find keys because it must be locked or something. …
… then she’s come back out and opened it. I’ve gone in there, and then, yeah, very awkward, just kissed and had sex … And then she was sore, so we ended up coming back inside, and I think she went and had a shower or something and went – like, went in the bedroom. I went in the bedroom. Was talking to her for a bit and that. She was saying she was sore and that, and then I’ve ended up coming back out on to the couch so [Mr F] doesn’t see me in – in her room …
- He then gave evidence about leaving the next morning and exchanging Snapchat messages with the complainant, including asking her to find and then to dispose of his “jocks”. He added that, “I’m just, at the moment – just thinking, you know, it’s just [Mr F]’s daughter. You know, you don’t want him to find my jocks in the caravan. Like, it’ll – it’ll look, you know, pretty bad and he’ll be up me.”
- He said that, before the complainant telephoned him (in the pretext call), he did not know how old she was: “So I was just worried about her being sore, not her age, and then she’s told me her age, and then that’s really freaked me out, like, made it worse …”
- When asked how old he thought the complainant was when he was having sex with her, he said, “Honestly thought at least 16.” When asked why, he said because she was drinking and smoking and had been drinking and smoking and carrying on at Easter.
- Finally, in answer to questions in his evidence in chief, he denied having sex with the complainant without her consent or touching her breasts or her vagina without her consent.
- In cross-examination, the defendant confirmed that he thought the complainant was sixteen because she had been drinking and smoking. He agreed that he had drunk and smoked when he was fourteen years old, but not in front of his parents.
- The following exchange took place with Mr Kaplan about events in the kitchen:
And then, it was that at that stage that you made a sexual advance on [the complainant], isn’t it?‑‑‑What do you mean by that?
You went up to her and you put your hand in her shirt?‑‑‑Yeah, well, we were just drinking together and then, you know, just started to get flirty and I started to get flirty and then, yeah, we ended up, you know, just kissing and hugging and other ‑‑‑
Well, I’m putting to you that you didn’t kiss her. I’m putting it to you that you just touched her under the shirt on her breast?‑‑‑Yes.
So you did touch her on the breast before you kissed her?‑‑‑No, I think we were kissing, and then we just, sort of – yeah. I don’t honestly know, but – yeah. Like, it’s just – yeah.
- In answer to other questions in cross-examination, the defendant denied that he had forced himself on the complainant in the kitchen and that he had followed her into the bedroom and got on top of her. He said he may have put his finger in her vagina in the caravan, but he denied having sex with her in the bedroom.
Factors relevant to the complainant’s credit
Overall assessment of complainant’s credit
- If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, I must take that into account in assessing the truthfulness or reliability of her evidence generally.
- My general assessment of the complainant as a witness will be relevant to all of the charges, but I have to consider her evidence in respect of each charge when considering that charge.
- If, for some reason, I am not sufficiently confident of her evidence to convict in respect of one charge, I must find the defendant not guilty in relation to that charge. That does not necessarily mean that I cannot convict him of the other charge. I have to consider why I have some reasonable doubt about that part of the evidence and consider whether it affects the way I assess the rest of the evidence, that is whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the parts of her evidence relevant to the other charge.
Cross-examination as to complainant’s motive to lie
- I have noted above that, in cross-examination, the complainant was asked whether she regretted having had consensual intercourse with the defendant because she was in a relationship with her boyfriend, CB, which she denied. That question was clearly directed at suggesting that she had a motive to lie in her account concerning the defendant’s conduct. In her address, Ms Goldie submitted that her motives might include that she had a boyfriend and regretted consensual intercourse; it could have been because she was hurt in the course of consensual sex; it could have been that perhaps she liked the defendant and he didn’t contact her after the event.
- If I reject the motives to lie put forward on behalf of the defence, that does not mean that the complainant is telling the truth. The Crown must prove that the complainant is telling the truth, for it is the Crown’s burden to satisfy me beyond reasonable doubt of the defendant’s guilt.
- Evidence has been placed before me of the apparently distressed condition of the complainant. That evidence was, in short:
- (a)the complainant said that in the early morning of 18 December 2018, she woke her father, crying, and told him that the defendant had raped her;
- (b)Mr F said that, at about 1.20am on 18 December, the complainant woke him crying. He kept saying to her, “what happened, what happened?” and she eventually said that the defendant had raped her, had put his penis in her.
- The Crown submits that this evidence supports the evidence that the complainant was raped and assaulted by the defendant.
- It is a matter for me as the sole judge of the facts whether I accept the evidence relating to the complainant’s distressed condition. If I do, then I must consider whether her apparent distress condition was genuine or she was pretending. Was she putting on the condition of distress? Was there any other explanation for the distressed condition at the time? I should attach little weight to the complainant’s distressed condition because it can be easily pretended. But if I find that the distress was genuine then it may be used by me as evidence that supports the complainant’s account.
- On the other hand, the defence submits that, if I accept the evidence of the complainant’s distressed condition, I should do so only as part of the narrative of the events which the prosecution alleges surrounds the alleged acts of rape or assault. I should not accept it as supporting the complainant’s evidence that she was raped or sexually assaulted. It has no relevance to the defendant’s guilt. There may be many innocent reasons for her condition at that time, such as regret (and being sore and swollen) after consensual intercourse or sexual contact, or concern about some other issue entirely unrelated to the alleged sexual activity. The complainant’s condition may be feigned or exaggerated, and as a matter of common sense and human experience I may think of other reasons based on the evidence. I should therefore disregard the evidence of distressed condition except to the extent that it is part of the narrative of events of that particular night.
- There is evidence that the complainant made statements alleging that the defendant had raped her, to her father (as set out above) and, in a series of text messages that she sent shortly after 5.45am on 18 December, to her boyfriend CB and to her friend CF.
- This evidence is only relevant to the complainant’s credibility. Consistency between the account by Mr F of her complaint, her text messages and her evidence may be taken into account as enhancing the likelihood that her evidence is true. However, I cannot regard the things said in those out-of-court statements as proof of what actually happened; they do not independently prove anything.
- Likewise, any inconsistencies between Mr F’s account, her text messages and her evidence may raise doubts about the complainant’s credibility or reliability. But the mere existence of inconsistencies does not mean that I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people (and especially young people) who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.
- Her statement to her father, as both he and she related it in their evidence, was not inconsistent with her statement to police and her evidence in court. It therefore has a tendency to increase the credibility of her evidence.
- However, her statements, in her text messages, that “he repeatedly raped me for over 2 hours” and “it went on for like 2 fucking hours”, on their face appear to be entirely inconsistent with her evidence, in which the events in her bedroom appear not to have lasted very long. That inconsistency has a tendency to reduce her credit. Counsel for the defendant stressed that it was entirely inconsistent with the complainant’s evidence that the events in her bedroom did not take a long time, for her later to say that she was repeatedly raped over two hours.
- On the other hand, on the complainant’s evidence she and the defendant were alone in the house (apart from Mr F, who was asleep in his bedroom) from about 11.15pm. She first tried to contact CB and CF at 12.33am, following which she woke her father (according to him) at about 1.20am. Taking into account her evidence that the defendant tried to kiss her and put his hands up her shirt and her shorts in the kitchen, then she went to her bedroom to change, then she went out to get water and then, after she returned to her bedroom and was lying on the bed, he came in and the process of trying to have sex with her started, the whole encounter (either as she related it or as the defendant related it) took no less than an hour and it may well have seemed to her, especially a few hours later when she was distressed and telling her boyfriend and friend about what had happened, to have taken over two hours. This is the case, whether I accept her evidence or that of the defendant about what happened that night.
- I do not consider that apparent inconsistency to be damaging to the complainant’s credit generally.
The complainant’s behaviour after the incident
- The defendant’s counsel made a submission, as I understood it, to the effect that, if the defendant had treated the complainant in the manner she says he did, she would have had nothing more to do with him over the ensuing period and particularly the next morning. Yet she sent him Snapchat messages, apparently before going to the doctor and the police on the morning of 18 December. She told him that he had left his speaker at her father’s house and should come and collect it. In response, if I accept the defendant’s evidence on the point, he told her that he thought he had left his “jocks” there and asked her to find them. She later told him that she had found them and asked him what to do with them. He told her to throw them away.
- Ms Goldie submitted that the complainant’s conduct in having that Snapchat conversation and then finding and throwing away the defendant’s underpants was not consistent with her evidence that he had raped her. In fact, she submitted, it is entirely inconsistent with a girl of her age having been raped only a few hours earlier, as opposed to a girl who has had, but later regretted having, consensual sex with the defendant (and therefore not feeling any particular antipathy to him at the time of the Snapchat exchange).
- As to that submission, I note that there are no rules about how people who engage in sexual abuse of children behave and no rules about how their victims behave. It is difficult to know how anybody who has not been in the position of someone who has been sexually abused as a child can really say how someone who is in that position is expected to behave afterwards. For example, the law for a long time assumed that, if someone was a victim of a sexual abuse, he or she would promptly complain. But it is now well known that there are numerous victims of sexual abuse, particularly children, who say nothing about it for months, years or decades afterwards. They just go on apparently living their lives in the same way as if nothing was happening.
- This experience shows how dangerous it is to make assumptions about how people in the complainant’s position should behave, either generally or in a particular case. So I have considered carefully the extent to which I am really in a position to assess whether behaviour of this nature by someone in such a position really is inherently improbable.
- It certainly seems strange that the complainant would do such things if she were the victim of rape by the defendant, especially only a few hours after the alleged event and at a time when she expected shortly to go with her father to see a doctor. However, I do not consider that, of itself, it affects her credit generally, because it does seem possible to me that a child in that position might act in ways that I would find surprising. However, as will become apparent, other findings I will make later have the result that I consider her answers to questions about that behaviour – that she did not remember anything to do with the defendant’s “jocks” – to be disingenuous.
Defence – mistake of fact
- Under s 24 of the Code, a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.
- Similarly, in respect of count 1 on the indictment, under subs 210(5) it is a defence to prove that the defendant believed, on reasonable grounds, that the complainant was of or above the age of 16.
- So, if I conclude that the defendant indecently touched the complainant under an honest and reasonable, but mistaken, belief that she was at least 16 years old, he is not criminally responsible to any greater extent than if the real state of things had been that she was 16 years or older. In such a case, if I were otherwise satisfied beyond reasonable doubt that he had touched her indecently at the kitchen table, then I would acquit him of count 1. But in that case I would have to go on to consider the alternative count and whether the Crown had proved that she had not consented to that behaviour.
- A mere mistake is not enough: the mistaken belief must have been both honest and reasonable. An honest belief is one which is genuinely held by the defendant. To be reasonable, the belief must be one held by the defendant, in his particular circumstances, on reasonable grounds. Since the focus is on the defendant’s belief rather than that of a theoretical reasonable person, the information available to the defendant and the circumstances as he perceived them are relevant in considering whether such a belief was reasonably held.
- There is no burden on the defendant to prove that he made a mistake of fact. The prosecution must satisfy me beyond reasonable doubt that he did not do so. If the prosecution has failed to satisfy me that the defendant did not act under an honest and reasonable mistake of fact, I should find the defendant not guilty of the principal count 1. On the other hand, if the Crown proves to my satisfaction beyond reasonable doubt that:
- (a)the defendant did not honestly hold the relevant mistaken belief about the complainant’s age; or
- (b)he held that belief, but it was not a reasonable belief in the circumstances as the defendant perceived them,
then I would find that the defence of mistake of fact did not apply. In that case, it is immaterial that he did not know that the complainant was under 16 years old at the time.
- If I am not so satisfied, even if I find that the complainant was not consenting I must find the defendant not guilty of the principal charge 1.
- The Crown submitted that I should accept the complainant’s evidence of what happened and reject that of the defendant. The complainant’s obvious distress when she woke her father and the evidence of her injuries were consistent with her evidence that the defendant had had non-consensual sex with her in her bedroom and had caused her injuries in the course of a violent rape. Her evidence was credible and persuasive. She repeatedly told the defendant “No, I don’t want this”, but he ignored her and put his finger and his penis into her vagina.
- The Crown says I should also accept her evidence of what occurred in the kitchen: namely, that the defendant, without the complainant’s consent, touched her breasts and the side of her vagina and therefore indecently dealt with, or sexually assaulted, her.
- Mr Kaplan submitted that the complainant was credible, her evidence was generally consistent, apart from in minor respects, her demeanour in the police interview and in court showed a young girl who genuinely remembered the traumatic events she had undergone and tried her best to give an honest and accurate account. Her version of events never wavered and she firmly rejected the defendant’s case when it was put to her.
- In contrast, said Mr Kaplan, the defendant’s version of events was full of inconsistencies and is not believable. In particular, Mr F said the caravan was always unlocked, which is inconsistent with his story that it was locked and the complainant went to get the key (which was not in the house anyway). Mr Kaplan submitted that, with the top down, it would have been very difficult for a man of the defendant’s size to go in and to have sex inside. Also, in the pretext call, the defendant had encouraged the complainant not to tell her father that they had had sex, to lie to her father and to the doctor about her injuries. He was shown to lie – and to encourage the complainant to lie – to protect himself and therefore I should not accept his evidence where it was not supported by that of other witnesses.
- The Crown submitted that I should find that the defendant had no belief at all as to the complainant’s age. In his interview with the police and in his evidence in court, he said he did not really know how old she was. Alternatively, if he did believe she was at least sixteen, it was not a reasonable belief, as it was based solely on the fact that he saw her drinking alcohol and smoking cigarettes in the presence of her father. The Crown also submits that I should accept the complainant’s evidence that he asked her when she would get her driver’s licence and she said she still had two years to go, which was inconsistent with her being 16 years old. The Crown submits that, for these reasons, I should find that it has proved beyond reasonable doubt that the defendant did not have such a belief or, if he did, it was not reasonable. Therefore, neither s 24 nor subs 210(5) can avail the defendant in respect of the indecent treatment charge.
- Defence counsel submitted that I should not accept the complainant’s evidence, many parts of which do not make sense. Ms Goldie said it would not seem possible for the defendant, while lying on top of the complainant with all his weight, to take off her clothes. Nor was it possible or likely that he would have pulled down his pants, then pulled them up again, a couple of times, as the complainant said. The alleged rape is said to have occurred in the complainant’s bedroom, during which she called out loudly enough for her father to hear, where the walls between her father’s room and hers were thin. Her father did not hear her. But whether or not her father was a heavy sleeper, the defendant was not to know, but knew where her father’s bedroom was and it is not credible that he would have raped the complainant in her bedroom, where there was a substantial risk that her father would hear and come to investigate.
- Ms Goldie submitted that Mr Wallace’s evidence that, when he woke up on the couch, there was nobody in the kitchen, is consistent with the likelihood that, by then, the complainant and the defendant had left the house to go to the caravan for consensual sex.
- Ms Goldie submitted that the evidence shows that the complainant was prepared to lie when it suited her. She lied to her boyfriend and to CF in telling them that she had not been drinking the previous evening. She lied to CF the previous evening in telling him that her father’s friends were pressuring her to drink, when everyone else’s evidence was that she was not forced in any way to drink alcohol. She lied in saying to CF and to CB that she had been raped (repeatedly, in one text) for over two hours. Therefore, I should find that she lied in making her allegations and she lied in denying that she and the defendant went to the caravan (because to admit it would be to admit that she had had consensual sex with the defendant).
- Ms Goldie submitted that the complainant had any number of motives to lie. First, she may have had regrets that she had had sex with the defendant when she had a current boyfriend. Secondly, she was sore from having sex with the defendant and therefore may have regretted it. She may have not wanted her father to know that she had had consensual sex with the defendant, but she needed him to take her to the doctor because she was sore. She may also have been annoyed with the defendant for making her sore and for not contacting her after the event to see how she was.
- In contrast, the defendant was honest and straightforward in admitting what happened between him and the complainant. He first mentioned the caravan in the pretext call, in response to her stating that she did not want to have sex with him. In the interview he was genuinely concerned just to get it all sorted by telling the truth about what had happened. He seemed surprised, in that interview, that she had not mentioned the caravan. He mentioned having left his jocks behind, which fitted with the narrative. He encouraged her to lie to her father and the doctor about the cause of her injuries, but only because he did not want her father to find out that his friend had had sex with his daughter.
- Ms Goldie also submitted that the complainant’s conduct on the morning of 18 December was inconsistent with having been raped by the defendant. She voluntarily sent him a Snapchat message to tell him that he had left his speaker behind. She then found and threw away his jocks. That conduct is entirely inconsistent with having been raped by him the night before, even for a 14 year old girl.
- Ms Goldie also submitted that the defendant had good reasons to believe (and honestly did believe) that the complainant was at least 16 years old at the time. I should accept his reasons and find that his belief was reasonable. Therefore, even if I accept the complainant’s story about his behaviour in the kitchen, I should not find him guilty of indecent dealing with a child under sixteen. Further, I should find that any touching of the complainant in the kitchen was with her consent, so he did not sexually assault her
- At the very least, even if I was not prepared to accept the defendant’s version of events, I should entertain at least reasonable doubts about the complainant’s version and should consequently find the defendant not guilty of all charges.
Findings as to credit
- I consider that the complainant was attempting to give her evidence correctly and truthfully about the events in the kitchen and her distress during and after events in the bedroom. In particular, her evidence of what happened in the kitchen was cogent and believable, whether or not she and the defendant went on to have consensual sex. The defendant did not really deny that that occurred, answering in vague terms when it was put to him and seeming to me to accept that it happened.
- I consider that the complainant was genuinely distressed when she woke her father and she believed that she had been “raped” by the defendant. However, given other aspects of her evidence referred to below, I have doubts that the events in her bedroom occurred as she said. I am satisfied that the defendant penetrated her vagina with his penis at some stage of the evening, but not that it occurred in the way she said. Rather, her belief, after the events of the evening, that the defendant had raped her probably stemmed from the fact that she was sore and swollen as a result of the defendant being very rough with her during intercourse and yet he started further attempts to have more sex with her in the bedroom, which she rebuffed. She equated those matters with rape.
- I consider that the complainant was lying in denying that she went to the caravan with the defendant and had consensual sex with him there. She had a strong motive to deny having had consensual sex with the defendant, as it was likely that, if she had admitted to that, she would have received little or no sympathy from her father for the injuries she suffered. Also, she would not want to admit it to her boyfriend. She considered it to be inconsistent with her complaint of being raped in the bedroom and therefore she should deny it.
- I also consider that the complainant was not being truthful in saying that she did not remember exchanging Snapchat messages with the defendant about finding and disposing of his underpants. The defendant’s evidence about those messages was cogent and apparently given spontaneously. It is consistent with them having had consensual sex in the caravan. It is not credible that the complainant did not remember those messages.
- The defendant, in my view, was generally honest, although not completely. I consider that he gave a truthful account of going to the caravan with the complainant and having consensual, though overly rough, sex with her there. His reaction, both in the pretext call and in his police interview, in referring to the caravan, appeared to me to be genuine and spontaneous: he saw it as consistent with the complainant having agreed to have sex with him and he was surprised that she had not mentioned it to the police. He admitted to then lying with the complainant on her bed and attempting to have further intimacy with her there, but he said that she said again that she was sore, so he stopped and went to the couch. He did not admit to saying she was cranky, but did mention that she did not like him going to sleep on the couch.
- I consider that the defendant was not honest in his evidence that he thought, at the time of the events in question, that the complainant was at least 16 years old. At first, in his police interview, he said (honestly) that he did not know how old she was, he had not thought about it. He also gave evidence to that effect in court. In my view, that was correct: he had not thought about the complainant’s age at all. Once he thought about it, he said that he had thought she was at least sixteen. I consider that, in fact, he did not even think about it at the time, so he did not take the trouble to check with her. Only later, when he realised she was in fact fourteen, did he react by saying that he thought she was older.
- In the circumstances, I accept some of each of the complainant’s and the defendant’s evidence and reject other parts.
- At this stage I consider it apposite to note that the investigating officer, after being told by the defendant that he and the complainant had had consensual sex in the caravan and that he had left his underpants in the caravan or the house and had asked the complainant to dispose of them, surprisingly took no real steps to investigate his version of events. She did not inspect the caravan, either that day or ever. Instead, at some time after speaking to the defendant, she asked Mr F (or arranged for another officer to ask him) to see if the caravan had been used. I have earlier summarised his evidence of what he did. Having looked at the caravan, he said he told the police officer who had asked him to do so that it looked to him as if nobody had been in the caravan. Nor did the officer search Mr F’s house to try to find the defendant’s underpants, nor even ask the complainant if she had found and disposed of them. I find this method (or lack) of investigation incomprehensible. It means that the prosecution was unable to lead evidence of a complete investigation that may well have included evidence consistent with the defendant’s version of events and perhaps with his innocence. This means that I should approach the complainant’s evidence with great care before accepting that she did not go to the caravan with the defendant and have consensual sex with him there.
Findings of fact
- For the reasons stated in paragraph  above, I accept the complainant’s evidence of the events in the kitchen. I find that, after Ms Guy and Ms Marbuger (and possibly Mr Wallace) had left the premises and Mr F had gone to bed, the complainant and the defendant were sitting at the kitchen table while the complainant finished her drink. After a short while, the defendant sat next to the complainant and started kissing her. She did not object. He put at least one hand up under her shirt and fondled one or both breasts, either under or over her bra. He then put one hand in the leg of her shorts and touched the area of her genitals. She pulled his hand out, telling him not to do that.
- For the reasons stated in paragraph  above, I generally accept the defendant’s evidence as to what occurred next and I do not accept the complainant’s denial that they then went to the caravan. The complainant and the defendant agreed to go outside to the caravan. After obtaining access to the caravan (whether because it was unlocked or because the complainant found the key is immaterial), they entered the caravan and there engaged in consensual penile-vaginal intercourse, in the course of which the defendant was so rough that he bruised the complainant’s lip (from biting it or kissing her aggressively) and injured her labia, causing them to become very sore and to swell. He also bit or sucked on the right side of her neck, causing what was referred to in the admissions as a “hickey”.
- After completing their consensual sexual activities in the caravan, the complainant and the defendant returned to the house. The complainant went to her bedroom, perhaps showered, and changed into her pyjama shorts and a singlet. She then went out to the kitchen, where the defendant was, to get some water, and returned to her bedroom. The defendant came in and lay on top of her on the bed. He at least attempted to undress her and to remove his pants. She told him she was sore (from the previous sex) and that she did not want to have more sex. She said, “No, I don’t want this” or words to that effect several times. He persisted to attempt to have sex with her despite her protestations. In these respects, I mostly accept the complainant’s evidence. I do so in particular because, when she said to the defendant, in the pretext call, that she had repeatedly said, “No. I don’t want this,” he did not dispute it, but said that was why he went to the couch. He did not deny her statement that “That was ages after.” He also said, in the police interview, that they were cuddling “and mucking around,” which is consistent with him making some further sexual advances, although he went on to say, “We didn’t have sex or nothin’ … in the bed.”
- However, despite accepting that evidence of the complainant, I am not satisfied beyond reasonable doubt that he persisted to the extent that he put his penis into her vagina. The complainant’s credibility and reliability in this respect are tainted by her denial of the events in the caravan. I also consider it possible that she conflated the rough sex in the caravan and the defendant’s attempts to renew intimacy with her in the bedroom. In the circumstances, I consider that there is a reasonable doubt about exactly what happened in the bedroom and at what stage the defendant stopped his attempts to have sex with her there. It is therefore unnecessary for me to consider whether the complainant consented to the actions with which the defendant is charged.
- I find that, at time of the events in question, the defendant had no particular belief as to the complainant’s age: he did not even consider it. I base this finding particularly on his evasive answers to questions about his knowledge of her age in the police interview and his evidence in court that, before she told him that she was fourteen, he did not know how old she was. I do not believe his later evidence that he “honestly thought [she was] at least 16.” Although, had he considered it, he may have thought she might be sixteen, in the event he went ahead and took the chance without considering it at all. He had no belief at all as to her age.
- Even if he had believed that the complainant was at least sixteen, I find that his belief would have been unreasonable. By the defendant’s own admission, he had drunk alcohol and smoked cigarettes when he was 14 years old, although not in front of his parents. Regrettably, it is not unusual in this day and age for children as young as thirteen to do these things. Regrettably also, some parents seem not to object to this behaviour. To rely only on those observations in concluding that a person is over sixteen is not reasonable.
- Mr F gave evidence that at one stage the complainant had driven and rolled his car. Mr F said that he would have told the defendant about that incident, because he told everyone. The complainant also agreed in her evidence that she had spoken with the defendant about that incident, either at Easter or on 17 December. However, the defendant did not say that that was a reason he believed that the complainant was at least 16 years old. But even if he had, I do not consider that to be sufficient to lead to the defendant having a reasonable belief that the complainant was at least sixteen. It was only one occasion and it is not unusual for a parent to allow a child of 13 or 14 years old to drive the parent’s car under supervision, especially in the country.
- In any event, I accept the complainant’s evidence that, either that evening of (perhaps more likely) at Easter, she told the defendant that she had two years to go before she could get her licence. It is most likely that she said that in the context of the story about her rolling her father’s car. The defendant could not reasonably have believed that she was sixteen in the light of that statement by her.
- In the Supreme Court of Victoria, Bell J has commented that
It is common knowledge that, by their mature appearance, many children who are under the age of 16 years can and do deceive others into believing honestly that they are above that age. Moreover, as such children can and do behave in that way, it is not easy to be sure. … But, in my view, all of this is reasonably foreseeable.
Because this is reasonably foreseeable, potential offenders can take it into account when choosing whether or not deliberately to commit an indecent act in the presence of people in such a place. They can take reasonable avoiding action simply by refraining from the commission of indecent acts where children might be. If a potential offender goes ahead anyway and a person present happens to be a child under the age of 16 years, the offender has committed the act at their peril.
- Similarly, an adult who chooses to engage in sexual conduct with a person who is clearly a teenager and may or may not be 16 years or older, but who goes ahead with that conduct without first taking reasonable steps to find out the child’s true age, or at least a reasonable basis for a belief as to that age, does so at the adult’s peril should the child in fact be under sixteen. For the defence or the excuse under s 24 or subs 210(5) to be open to a defendant, the defendant must have a positive belief in the complainant’s age. In the absence of any belief as to the child’s age, because the adult did not consider it at all, the adult is liable to be charged with indecent treatment of a child under sixteen. Even if the adult has some belief that the child is at least sixteen, the law requires that there be a reasonable basis for that belief. It is not reasonable simply to make that assumption because of the child’s behaviour, given that it is reasonably foreseeable that a child under sixteen may look or act as if the child were at least sixteen.
- Therefore I find that the defendant did not have an honest belief that the complainant was at least 16 years of age. Alternatively, if he did believe that, he did not hold that belief reasonably.
Conclusions and verdicts
- I have found that the defendant touched the complainant’s breasts and the side of her vagina with his hand, when in the kitchen. That touching constitutes “dealing” with the complainant. Those were indecent acts in the normal description of that phrase, particularly given the complainant’s and the defendant’s ages. At the time, the complainant was 14 years old. I have also found that the defendant did not have an honest and reasonable belief that the complainant was at least 16 years old. In the circumstances, it is irrelevant whether the complainant consented to him doing those acts. The elements of count 1 have been proved beyond reasonable doubt. I therefore find the defendant guilty of count 1, indecent treatment of a child under sixteen.
- Having found the defendant guilty of count 1, I do not need to consider the alternative count.
- I consider that there is a reasonable doubt whether the defendant inserted his penis into the complainant’s vagina in the circumstances described by her and against her protestations. Therefore, the necessary elements of count 2 have not been proved beyond reasonable doubt. I find the defendant not guilty of count 2, rape.
The particulars were marked A for identification during the trial.
The complainant gave this evidence in her police interview – exhibit 1 – and in her evidence in court – exhibit 2.
Exhibit 4, police interview of the defendant.
Code, s 615B(1).
Code, s 615B(3).
Code, s 615C(1).
Code, s 615C(3).
Code, s 210(1)(a).
Code, s 210(6).
Code, s 245.
R v Schneiders  QCA 210, -.
R v Dunn  2 NZLR 481.
Code, s 24(1).
Code, s 210(5).
Code, s 229.
Code, s 352(1)(a).
Code, s 348.
Code, s 349(2)(a).
Defined in Code, s 6.
Evidence Act 1977, s 21AC. She was 14 years old at the time.
Admissible under Evidence Act, s 93A. The recording of the interview is exhibit 1 and the transcript of the interview was marked B for identification.
Pursuant to and in accordance with Evidence Act, s 21AK. The recording of her evidence is exhibit 2 and the transcript was marked C for identification.
Evidence Act, s 21AW.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 188. The same applies to the recording of the pretext phone call and the police interview of the defendant, to which I refer later.
My summary of her evidence is taken from her full interview. Not surprisingly, what she said was not in the same order as I record it, nor was it strictly chronological. I have recorded what she said in various parts of the interview as if it were in a logical progression in order to assist in considering the whole of her evidence.
Later identified in evidence as Vanessa Guy and Caroline Marburger.
Although she did not mention it in this interview, she agreed in her evidence later that Vanessa and Caroline had left earlier. Other evidence showed that they left at about 9.40pm.
She said he was a very light sleeper but he had been drinking through the night.
Transcript of interview (MFI B), 4:35-37, 47-50.
Photographs of these and other text messages were placed in evidence as exhibits 13 and 14 during the complainant’s pre-recorded evidence. They are part of exhibit 3 in the trial. I shall refer to them as exhibits 3.13 and 3.14.
Mr F said it was 1.20am: T1-22:14.
As to which I make the same comment as in footnote 28 above.
The photographs form part of exhibit 3 before me, being 3.1 to 3.11. Later evidence was that they were taken by a police officer on 18 December 2018.
Exhibits 13.12 and 13.13.
Exhibits 13.14 and 13.15 respectively. It later became apparent that not all her text messages with CB had been photographed.
That was not correct. In the police interview she was asked what was the first thing that happened when the defendant walked into the room. She said he got on top of her. She was asked if she said anything and she said, “Not really. It just happened fast …”: MFI B, T13:54 to T15:1. She was clearly referring to the defendant getting on top of her fast, not necessarily the whole incident.
These messages are part of exhibits 13.14 (at 5.45am) and 13.15 (at 5.54am) respectively.
As will become apparent, Ms Goldie later submitted that her text messages were lies that damage her credit.
My recollection is – and a note I made at the time I saw this evidence was – that she answered that and the previous question with a surprised, quizzical look.
I considered that, when she was asked this question, she denied it with a look of disgust on her face.
She said this in a tone which, I thought, indicated that she was distinguishing her boyfriend from anyone else – in that she only lied to him, and because he was angry.
That is consistent with the complainant’s evidence that she called “Dad” several times before he woke up.
R v E (1995) 89 A Crim R 325, 330.
R v Armstrong  QCA 158, .
The recording is exhibit 5. The transcript of the recording was marked E for identification. I have reviewed the transcript where necessary to be precise about what was said. I have also listened again to the recording in an attempt to determine what was said where the transcript recorded that words were indistinct. I have noted below where I ascertained the correct words on my review of the recording, by inserting the words I heard in square brackets, in place of the word “indistinct” or another incorrect word that appears in the transcript.
I set out what I consider to be the most important evidence from this call, in the order they occurred, although there were other things said between each excerpt. I separate the excerpts by ellipses.
Exhibit 4. The transcript of the recording was marked D for identification.
T7: 19-22, 26-27, 33-37.
MFI D, T11-17.
The defendant shook his head at this point.
R v Markuleski (2001) 52 NSWLR 82.
Which, if I accept his evidence, she apparently did, as nobody mentioned finding them anywhere later.
See R v Cotic  QCA 435, 5-6, 7.
R v Mrzljak  1 Qd R 308, 321 , 327 .
Code, s 229.
See  above and his answers in the police interview.
That is, she asked a potential witness (at least as to preliminary complaint) to undertake part of her investigation for her.
The complainant was 13 years old at Easter in 2018.
Azadzoi v County Court (2013) 40 VR 390, 427 , . While different circumstances and legislation, the comments are apposite to this case.
R v Mrzljak, , citing Burt CJ in G J Coles & Co Ltd v Goldsworthy  WAR 183, 187-188.
- Published Case Name:
R v Kratzmann
- Shortened Case Name:
R v Kratzmann
 QDC 103
Barlow QC DCJ
03 Jun 2020