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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v HXY  QDC 124
District Court of Queensland, Brisbane
17 June 2020
8 June 2020
Verdict of “guilty”
CRIMINAL LAW – SEXUAL OFFENCE – INDECENT TREATMENT OF A CHILD - JUDGE ALONE TRIAL – where the defendant is charged with one count of indecent treatment of a child under 16, under 12 and under care – where the defendant pleaded not guilty – where a judge alone trial was conducted – where there was delay in reporting the incident – evidence of the uncharged acts – where complainant accepted as a truthful witness despite some apparent discrepancies in her evidence – unreliability of defendant’s own evidence – whether charge proofed beyond reasonable doubt – accepting of complainant’s evidence – findings of guilt
Criminal Code Act 1899 (Qld) s 210(1)(a)
HML v R (2008) 235 CLR 334
Longman v The Queen  168 CLR 79
J.T. Aylward for Crown
M. F. Bonasia for Defendant
The Office of Director of Public Prosecutions for Crown
Legal Aid Queensland for the Defendant
- The defendant has been charged with one offence, namely:
“That on a date unknown between the first day of January 2016 and the 31st day of December 2017 at (Brisbane) in the state of Queensland, he unlawfully and indecently dealt with RYC, a child under 16 years
And RYC was under 12 years
And HXY had RYC under his care for the time being.”
- To that charge he pleaded he was “not-guilty”. A Judge alone trial had been ordered so my role is to determine on the evidence whether he is guilty or not-guilty.
- The charged offence of indecent dealing is defined in s 210(1)(a) of the Criminal Code. The relevant elements, which must be proved by the Crown beyond reasonable doubt are:
- That the defendant dealt with the complainant.
- That such dealing was indecent.
- That such dealing was unlawful.
- That the complainant was:
- (a)Under 12 years of age; and/or
- (b)Under care for the time being.
- The nature of the case is such that the real issue which the Crown must prove to the requisite standard is that the act complained of in fact occurred. In essence, it involves an assertion by the complainant that the defendant, then a man of about 50 years of age, put his hand inside her underpants and touched her in the area of her vagina. If that matter is proven, there can be no dispute that such dealing was both indecent and unlawful. There is, on the complainant’s evidence, also no doubt that she was then, for the time being, under his care.
- It is admitted the complainant was born on 20 September 2006.
- Her evidence was that she lived with her mother and younger brother in a Brisbane suburb. She said her family met the defendant through a friend of her older sister. She said in her s. 93A statement of 13 June 2019 (hereinafter “the first s. 93A statement) that she had then known him about four years, suggesting they met in 2015. This is consistent with other evidence of her mother and the defendant himself. She said the incident happened “about a year after we met him”, indicating it happened in 2016. I note she turned 10 in September 2016.
- She said in that first s. 93A statement that she had been left at home with the defendant when her brother and mother went out. She indicated the defendant came into her bedroom, “laid in my room” and “put one of his hands down my underwear”. He persisted in doing so, despite her trying to move away, until her mother came back home. She did not complain at that time to her mother or to anyone.
- Indeed she told no one, she said, until 13 June 2019 the day of her first s. 93A statement.
- The complainant also said that the defendant again dealt with her in a similar manner at a house in Sydney in about April 2019. At that time she visited the defendant, with her brother and mother, when returning from a sporting event in Victoria. This alleged abuse is relied on by the Crown as evidence of other sexual conduct indicating the defendant had a sexual interest in the complainant and was willing to pursue that interest.
- The complainant also said that after that visit to Sydney the defendant returned to her Brisbane home and, over the period from then until the date of her first s. 93A statement, the defendant, on about four occasions, hugged her closely from behind. She said he would cross his arms and hands across her chest, holding her chest at the side in a forceful manner. The Crown relies on her evidence also as indicative of the defendant having a sexual interest in the complainant and of his being prepared to pursue it.
- After giving her s. 93A statement on 13 June 2019, the complainant gave a second s.93A statement on 10 January 2020 and was examined pursuant so s. 21AK of the Act on 5 May 2020.
- At the trial the complainant’s mother gave evidence. So too did the defendant. I will refer in greater detail to the evidence of the complainant, her mother and the defendant shortly.
- In a Judge alone trial the judge must apply, as far as practical, the same principles of law and procedure as would apply in a jury trial. If a judge would be required to provide information or to warn or instruct a jury about an issue or if he or she be prohibited from doing so, the judge must take into account the instruction, requirement or prohibition if such circumstances arise in the trial (see s 615B (1) and (3) of the Criminal Code). Section 615C (3) requires that a Judge must include the principles of law applied and the findings of facts on which the judge relies. I must explain the reasoning process justifying the verdict. All required warnings need to be recorded and taken into account.
- In this case I note:
- (i)The prosecution bears the onus of proving the defendant’s guilt and the defendant is not required to prove anything;
- (ii)The standard of proof is proof beyond reasonable doubt of the elements of the offence;
- (iii)The accused is presumed to be innocent. That presumption is lost only if I am satisfied beyond reasonable doubt of the defendant’s guilt;
- (iv)I am required to assess the question having regard only to the evidence given in the case and I must assess that evidence rationally, without emotion or prejudice;
- (v)In assessing a witness’s testimony I must consider both their honesty and reliability, noting that an honest witness may nevertheless be unreliable, either generally or in relation to a particular issue;
- (vi)In applying common sense and experience in assessing a witness’s evidence, I am entitled to draw rational and logical inferences from such evidence, but am not entitled to indulge in intuition or guess work;
- (vii)I can, using these rules and practices, accept all or part or none of what a witness says.
- In the circumstance of this case, a number of particular legal issues emerged.
- I’ve referred already to the crown’s reliance on other conduct of the defendant said to suggest that he had a sexual interest in the complainant which he was willing to pursue. If that evidence is to be used in that way, I must be satisfied both that the acts occurred and that the conduct does demonstrate the defendant’s sexual interest in the complainant and his willingness to pursue it. I must be satisfied of both of those matters beyond reasonable doubt before I can use the complainant’s evidence of those matters in that way.
- Unless I find that those matters are proven beyond reasonable doubt I cannot use the evidence in some other way to find the defendant guilty of the offence.
- Furthermore, even if satisfied that such other acts did occur, and that they demonstrate the defendant had such an interest and was willing to give effect to it, I must in any case decide whether, having regard to all of the evidence, the offence charged has been proven beyond reasonable doubt.
- There is, in relation to unchanged acts, a particular aspect of the evidence I should address. The defendant said in his evidence that on occasions after he moved into the house where the complainant lived, which he said was in about June 2016, the complainant would come to his room and ask the defendant if she could stay there. (See T1-37 l28/30) He said this was due, he concluded, to her suffering from “itchies”, due to bed bugs. When she did so he said she would sleep “at the opposite end of the bed”.
- The defendant was not cross-examined about the issue, presumably as the complainant had not said anything concerning it in her evidence. Ultimately, such evidence has no import other than being relationship evidence, and so perhaps of some limited use in “providing answers to questions which might naturally arise in the minds of the jury, such as questions about the complainant’s reaction, or lack of it, to the offences charged.” (See HML v R (2008) 235 CLR 334 at 502 per Kiefel J). It is not admissible to show that the defendant had a sexual interest in the complainant, especially since she gave, as I said, no evidence about the event, the defendant’s evidence about it was unchallenged and is explained by his reference to the complainant’s suffering “itchies”. There was no suggestion of inappropriate sexual activity during such events. I put it entirely to one side.
- Another aspect of the case is that there was a delay of about three years between when the complainant said the charged act happened, and her complaint of it to the police on 13 June 2019. Longman v The Queen deals with the effect of such delay on the fairness of the trial. By reason of such delay, the defendant has been denied the opportunity to garner evidence which might have been available to him if the complaint had been made at the time of the alleged offence.
- Proof of the charge depends effectively on the complainant’s evidence alone. No one was a witness to the event. Whilst both the complainant’s mother, and the defendant, gave evidence that, on an occasion or occasions the complainant was left in the care of the defendant, the evidence concerning the offence itself was entirely that of the complainant. As a consequence I note it would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering all relevant circumstances and the warning I have just referred to, I am nevertheless satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s evidence.
- Finally, this was a case where the defendant gave evidence. He did not have to do so and his doing so does not mean he is assumed any responsibility to prove his innocence. The burden of proof remains on the crown. Although the case involves a weighing of the evidence of the complainant and the defendant, the requirement that the prosecution must prove the charge beyond reasonable doubt means I do not have to believe that the defendant is truthful in order to find him not guilty. There are three possibilities:
- (i)If I conclude the defendant’s evidence that he did not commit the offence was credible and reliable, and so is a satisfactory answer to the crown case, I would acquit.
- (ii)Even if his evidence is not convincing, if I find it leaves me in a reasonable doubt as to the truth, I would also acquit.
- (iii)If I reject his evidence I need to caution myself against jumping to a conclusion of guilt. I should, in such circumstances, set his evidence aside and consider whether I accept the complainant’s evidence that the offence occurred beyond reasonable doubt.
- The complainant said in his first s 93A statement that about a year after she had first met the defendant she’d been left alone with him when her mother and brother went out. She said he came into her room, lay next to her, and then put his hand down her underwear. She said she tried to move away from him but he would just pull me back next to him”. She said he left the room “when my mum came back”. She said “I was scared to say anything because I didn’t know what he could do to me”.
- Later in the same interview she said:
- (i)The defendant babysat her “not very often” but was her carer at the time of the event.
- (ii)It occurred during the daytime.
- (iii)He came “to lay in the room” with her.
- (iv)He put his hands down her underwear, touching her and “moving his fingers around underneath my underwear”.
- (v)She pulled away but “he pulled me in” and kept moving.
- (vi)He touched “the front of me”, “my vagina”.
- (vii)It did not hurt her.
- She was specifically asked by the interviewing officer “did his fingers go inside of you at all”. She responded “yes”. She was then asked if she could tell the officer “more about that part”. There was a significant pause and she was then asked if she wanted a drink. The officer then said (at p 11 l50 of the transcript) “so you were saying that he moves his fingers around underneath your underwear and started touching your vagina and that his fingers … were moving up and down, … can you tell me what else happened? Answer “I can’t remember”.
- My impression at the time of hearing that evidence, indeed throughout some passages of her evidence, was that the complainant was somewhat reluctant to talk about the acts complained of. I concluded this was due to embarrassment with talking of such personal events. This embarrassment, I concluded, caused lengthy pauses in her evidence from time to time. During his submission counsel for the defendant submitted that this feature of her evidence was due to difficulties she had in “trying to remember a story” which, he submitted, would not be present if she was instead trying to recall an actual event.
- I do not accept that to be the case. My strong impression was that she was giving evidence of an event, and that what caused the lengthy delays to which I have referred, was the understandable embarrassment that she had about speaking of such deeply personal matters.
- The complainant again said, as she had earlier said or inferred in her s.93A statement, that the defendant “heard my mum’s car pull up” and “got up quickly”. She again said the defendant had not hurt her.
- Obviously no one else viewed what happened, since the complainant and defendant were alone.
- The defendant in his evidence before me was asked (T1-38, l 13/14);
“Was there ever a time where you babysat (the complainant) on her own – Not in…… not in my books, sir.”
- This answer was consistent with the cross-examination by his counsel of the complainant in her s 21AK hearing. She was asked, and answered, at T1-12, l 14/15:
“And there was never a time, was there, when he only babysat you by yourself ---------Only once.”
- That question was asked in the context of a series of questions about occasions when the defendant had babysat both the complainant and her brother together. She had said the event happened when her mother went to a cricket match with her brother. She was asked and answered, at (T1-2, l 19/26):
“All right. Well, you said to the police that that happened at a time when cricket was on? -------- Yes.
I suggest that you went to cricket with (your brother) and your mother every time --------- Except for that once.
All right. Well, I suggest that there was never a time when he babysat you on your own ------- Only the once.”
- This evidence of the complainant is indicative of another feature of her evidence that I observed. Whilst she was reluctant to talk about the specific alleged events, through, I concluded, embarrassment rather than her having any difficulty in her recollection, she remained steadfast about important elements of her evidence when challenged.
- It is of importance to compare this with the defendant’s own evidence. Immediately after his answers set out above that he had not ever babysat the complainant on her own this exchange occurred in his evidence in chief:
“Did you know anything about those cricket matches? -------I was told they used to go to the cricket matches so …..
Would (RYC) go to those as well -------- Yes.
Was there ever a time when there was a cricket match on where you looked after (RYC) on her own -------- I think she ……(her mother) had to drive and grab some paperwork off friend at the cricket. I think that was the only time …
All right ------ and I cannot remember if (her brother) stayed or not.”
- However in the course of his cross-examination about this matter, the following exchange occurred (T1-44, l 8/14):
“And you think that you did look after them perhaps occasionally. Is that right or have I misunderstood you ------I have looked after both of them. I cannot remember exactly if it was once or twice I looked after (RYC) but I think it was only once, if that.
Ok. And is that the time when her mother went to the cricket match to pick up the books from (her friend) ------Yeah, I’d say it would have been.”
- His counsel submitted to me that the defendant ultimately admitting to having been left with the complainant alone, which was inconsistent with the instructions put to the complainant in her s 21AK cross-examination and with his evidence in chief, would not cause me to reject his evidence. Indeed it was said that the inconsistency between his evidence that he’d cared for the complainant alone at least once, and his instructions put to the complainant, and his evidence in chief, was a sign of his credibility and honesty. I am not as sanguine as his counsel about that inconsistency. It appeared to me the defendant’s concession was one made only in the face of the evidence of the complainant, and also that of her mother, about the issue. The complainant’s mother gave evidence that she had left the complainant with the defendant in 2016 when she used to go to rugby league practice with her son. (T1-16, l 17/22). She also said she used to meet a friend at cricket matches in order to pick up work documents and would sometimes leave the children with the defendant. Sometimes she said she left both children, sometimes only one of them and, if this happened, she said it would be (RYC) who was left at home (T1-15 l 4/13).
- Consequently the defendant’s evidence, and its variance from his instructions, was made in circumstances where he had not only the complainant’s evidence about this issue to contend with, but also the evidence of the complainant’s mother. This ultimate answer was entirely inconsistent with the defendant’s instructions to his counsel, which had been put to the complainant. There is the obvious inconsistency between his evidence in chief and in cross-examination about this issue. So it is not just something he readily appreciated on hearing the evidence at trial. His variation changed between his evidence in chief and his cross-examination.
- In the circumstances, such inconsistency does adversely reflect on the credit of the defendant.
- I was impressed by the complainant’s evidence – both in the two s. 93A statements to police, and her s. 21AK evidence to the Court.
- It appeared to me that the complainant, who turned 9 in September 2015, and who was 12 years eight months at the time of the first s. 93A statement, and 13 years three months at the time of the s. 21AK recording, made appropriate concessions when giving her account.
- She said, as an example, that she remained friendly with the defendant and enjoyed his company. She told the defendant’s counsel that the defendant was fun to have around and that he would take her to the park and would play games. She agreed she would be excited when he came home after being away for periods with his work and would run to him and give him a cuddle. She said this was so even when she was nine or 10 (see T1-10, l 45 to T1-11, l 3). Given her description of events, this was necessarily after the alleged offending which she said occurred when she was only about eight or nine. She also agreed that at times she would go into his room at the house where she lived when she was nine or 10, especially if her mum was arguing. I do not consider her description of her behaviour towards the defendant was inconsistent with that of a young girl who had suffered the abuse she described. More particularly her concession caused me to conclude, with the other matters I have referred to, that she was a truthful witness.
- She showed significant consistency in her accounts, except with respect to two matters that I need to consider. There was not an enormous amount of detail in her account of the incidents but I thought this was in part related to what I believe was a reluctance on her part to talk freely about matters the subject of the charged and uncharged acts, and to the limited nature of such abuse. I attributed this reluctance to embarrassment and a shame she should not have felt. I did not attribute it to dishonesty in describing what had occurred.
- In his submissions counsel for the defendant submitted that two inconsistencies in the complainant’s evidence would cause me to have significant concern about her reliability. They related to the question of whether or not the defendant had penetrated her vagina with his finger or fingers, and whether, during the charged occasion, he had laid down on her bed or only sat on it.
- In her first s. 93A statement the complainant said:
- When first recounting her abuse, that the defendant put his hand down her underwear, but said nothing concerning whether or not he had penetrated her vagina. She was not then specifically asked about that however. (see p 4 thereof)
- When she was later directly asked by the police officer, “Did his finger go inside of you at all” she answered “Yes”.
- When asked if she could tell the officer “more about that part” she was initially silent for a protracted period. She was then asked “what had happened” and said, “I can’t remember”.
- In her second s. 93A statement she was asked, (at T6, l 47) “Did he put any part of his body into your body while he was doing that”. She said “He put his fingers.” When asked where he had put them she said “He put them down of my pants and started to touch the front of me”. She said he was touching her “on the skin”.
- Thus, again, her answers suggest he may have either put his fingers “into” her body, or that he may have merely touched her “on the skin”. That a girl of 12, at the time of the first s. 93A statement and 13 at the time of the second, when recalling what had happened some three years earlier does not give clear evidence about this issue is unsurprising. I remain of the view that her embarrassment about this issue influenced her evidence.
- The cross-examination of the complainant did not clarify the matter. She was not cross-examined about whether or not he put his fingers inside her vagina. That she was not so cross-examined is unsurprising. Counsel would not wish to possibly get an answer that might lead to a more serious charge. The forensic reasons for not cross-examining on this issue are obvious.
- But one consequence of that very appropriate forensic decision is that I, the arbiter of fact, do not have the advantage of hearing or observing the complainant when asked to explain that inconsistency.
- In such circumstances, the variation in her evidence does not cause me to doubt her evidence that the defendant touched her inappropriately.
- A further matter the defendant’s counsel relied on as a significant inconsistency was the complainant’s description of whether the complainant lay or sat down in her room at the time of the charged act. In the first s.93A statement she said, (at p 4, l 20), “He laid in my room with me” and (at l 26) also said “He laid next to me”.
- Later the police officer recounted her version saying “He’s come to lay in the room with you” and she appeared to agree.
- In her second s. 93A statement she said (at T5, l 26/36) that she was “sitting on the bed” and the defendant was “sitting next to me on the bed”. Later (at T6, l 13) she said he “came and sat on the bed beside me” and then described his abusing her as I have earlier set out. She later said he was sitting “to the left” of her. Again, and less explicably, she was not cross-examined about these matters. The failure to have done so means it is not possible to know if there is a ready explanation – for example, that he first sat and then lay beside her. Or he may have moved from sitting, to lying, or to have done so a number of times. He may have rested on his elbow and a person might describe such a position as either lying or sitting. It is unsurprising that a young girl when asked about his or her position describes a static moment, and not continuous human movement as almost certainly would have occurred. In circumstances where she was not cross-examined about that, and where there seems no particular forensic advantage in not doing so, I again conclude the apparent differences in her accounts does not cause me to doubt the essential ingredient of her evidence – that the defendant abused her as she described.
- Counsel for the defendant relied also on the continuous harmonious relationship of the complainant with the defendant after the abuse alleged, and her delay in making complaint as factors which would cause me to doubt the reliability of her evidence.
- I have referred already to the ongoing relationship being harmonious, a fact conceded by the complainant. That concession by the complainant in my assessment enhanced her credibility and reliability. That she should continue to be friendly towards the defendant is unremarkable, especially as she consistently said he had not hurt her.
- The continuity of their friendly relationship, and her delay in complaining, are in my view not inconsistent with what might be the expected behaviour of a girl of nine who had suffered such abuse. How can one know how a girl of that age might react to such abuse. The short answer though is that it does not cause me to doubt the reliability or credibility of her evidence.
- There was, in short, nothing about her evidence which caused me, on viewing the three recordings, to have any doubt about her honesty or to doubt the fact of her abuse about which she gave evidence.
- Her evidence about being abused in Sydney has substantial relevance to the determination of this matter because of the similar nature of the act.
- The complainant’s evidence of her abuse in Sydney was corroborated in a substantial way by both her mother and the defendant. The complainant said the abuse happened when she was asleep on a couch. She said her mother was also asleep (see her first s 93A statement at p 5 l4-11 and p 13 l22-26 and her s 21AK recording at p 1-13 l4-19). This description of the sleeping arrangements were consistent with her mother’s evidence at the trial (T1-17 l32 – T1-18 l17) and with the defendant’s own evidence (T1-44 l26 – T1-45 l14).
- The complainant also gave evidence, as earlier referred to, of the defendant hugging her from behind with his hands crossed over her chest, forcibly holding her on the side of her chest after their return from Sydney. She said this was after the Sydney Easter Show, 2019 and prior to her going to police on 13 June 2019. She said it happened about four times. She was then about 12 and half years of age. Such acts, if they occurred, are indicative of the defendant’s sexual interest in the complainant, and of his willingness to give effect to that interest.
- In accepting beyond reasonable doubt the complainant’s evidence about events in Sydney and of the charged act and of the hugging she complaint of I am influenced also by my reaction to the defendant’s own evidence. I have referred already to the inconsistency between his instructions of never having been left to babysit the complainant alone, and his contrary evidence where cross examined about that issue.
- I have said already that I have put aside the evidence of the defendant of the complainant sleeping on an occasion or occasions in the bottom end of his bed. I do not consider such an event was indicative of his having a sexual interest in the complainant.
- The following exchange with defendant’s counsel (at T1-41 l22, during the defendant’s evidence-in-chief) is of importance:
“You heard evidence throughout the trial that during hugs you would hug her from behind and touch her in the chest area? ----- Yeah. Yeah. Grabbed her. Yep.
Have you ever touched her on the chest or breast area as part of hugs?-------- Might just have been accidently when you just wrap your arm around her.
I then asked him:
…. She said specifically, I think in the kitchen, that you came behind her and put your arms around her from behind? ----No, never. Not at all. Sorry.”
- It seemed to me that the defendant was at least equivocal in his answer to his counsel’s question. I consider to have hugged a 12 year old girl who was the daughter of a friend from behind, with the possibility or likelihood of thereby touching her breast or chest area, was very obviously inappropriate. He initially accepted he had done so. In such circumstances his equivocation scarcely enhanced his credit.
- I also accept the complainant’s evidence about that matter beyond reasonable doubt and find that it is indicative of a sexual interest to which he was willing to give expression.
- In the whole of the circumstances I find there was nothing to cause me to doubt the complainant’s credit worthiness. I was impressed by her demeanour when giving evidence. Having said that, I placed far greater weight on her actual answers rather than on her demeanour. By comparison I was generally unimpressed by the demeanour of the defendant when giving evidence. His memory of events – e.g. such as when he moved into the house where the complainant lived, and out again (see for example T1-35 l45 ff, T1-36 l44 ff and T1-39 l32 ff) was poor. His answers were often discursive (e.g. T1-37 l38-43) In relation to the issue of babysitting the complainant, he was, as I said earlier, confusing and evasive.
- Ultimately, taking into account the application of the legal principles to which I have referred I reject the defendant’s evidence except insofar as it is corroborated by the evidence of the complainant, and by the complainant’s mother. I did not think that his evidence denying the complainant’s allegations was creditable or reliable. I therefore put his evidence to one side.
- On the basis of the complainant’s own evidence, which I accept as honest and truthful, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question. I do so cognisant of the delay in her complaint and of the need to therefore scrutinise her evidence with great care. Despite the danger in convicting on the basis of the complainant’s evidence alone, I am nevertheless convinced of the complainant’s evidence of abuse beyond reasonable doubt.
- In the circumstances, I find the defendant guilty of the offence of indecent treatment of a child under 12, under care.
 The indictment sets out a particular suburb and the name of the defendant and complainant but I have changed these for the purposes of anonymisation. I have done this consistently throughout the judgement.
(2008) 235 CLR 334.
 168 CLR 79.
 Transcript records this statement is indistinct, but counsel both agreed she said the words I have set out.
 The defendant used the mother’s name and the friend’s name which I have omitted.
 In relation to these last three words, the transcript says “indistinct” but on hearing the recording it was accepted she had said “front of me”.
- Published Case Name:
The Queen v HXY
- Shortened Case Name:
The Queen v HXY
 QDC 124
17 Jun 2020