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[2020] QCHC 30



R v FAX [2020] QChC 30













Childrens Court at Southport


21 September 2020




7, 8 and 9 September 2020


Smith DCJA


I find the defendant guilty of rape.


CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT –  GENERALLY – DIRECTIONS whether the defendant is guilty or not guilty of rape – whether Robinson direction should be given and basis of direction

EVIDENCE- PRELIMINARY COMPLAINT- Whether should be excluded- whether the product of leading questions 

Childrens Court of Queensland Act 1992 (Qld) s 23

Criminal Code 1899 (Qld) ss 1, 348, 349, 615B, 615C

Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A

Evidence Act 1977 (Qld) ss 21AK, 21AW, 93A, 130

Youth Justice Act 1992 (Qld) s 101

Butera v DPP (1987) 164 CLR 180; [1987] HCA 58, applied

Fleming v R (1998) 197 CLR 250; [1998] HCA 68, applied

Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334, cited

Robinson v R (1999) 197 CLR 162; [1999] HCA 42, applied

R v Armstrong [2006] QCA 158, cited

R v Coss [2016] QCA 44, cited

R v E (1995) 89 A Crim R 325, cited

R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, cited

R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited

R v Mulcahy [2010] ACTSC 98, applied

R v NM [2012] QCA 173; [2012] 1 Qd R 374, cited

R v RH [2005] 1 Qd R 180; [2005] QCA, cited

R v Rutherford [2004] QCA 481, cited

R v Van der Zyden [2012] QCA 89; [2012] 2 Qd R 568; 222 A Crim R 463; 261 FLR 419, applied


Mr M Hynes for the Crown

Mr A Kimmins for the Defence


Office of the Director of Public Prosecutions for the Crown

PVB Lawyers for the Defence


  1. [1]
    This is a judge only trial.
  2. [2]
    The defendant is charged with the following count:

“That between the 29th day of January 2016 and the 1st day of February 2016, at Oxenford in the State of Queensland, the defendant raped ED.”

  1. [3]
    The defendant has pleaded not guilty to the charge and it is my role to determine on the evidence whether the defendant is guilty or not guilty.
  2. [4]
    The offence of rape is set out in s 349 of the Criminal Code.
  3. [5]
    Relevantly, the elements of the offence are the penetration of the vulva or vagina of the complainant by the defendant’s fingers without the complainant’s consent.
  4. [6]
    Consent is defined in s 348 of the Criminal Code as: 

348 Meaning of consent

  1. (1)
    In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
  1. (2)
    Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained—
  1. (a)
    by force; or
  1. (b)
    by threat or intimidation; or
  1. (c)
    by fear of bodily harm; or
  1. (d)
    by exercise of authority; or
  1. (e)
    by false and fraudulent representations about the nature or purpose of the act; or
  1. (f)
    by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”
  1. [7]
    The central issue in dispute in the trial is whether the act happened. If it did happen, the complainant, on her account, did not consent.

Principles to be applied

  1. [8]
    Section 23 of the Childrens Court Act 1992 (Qld) provides that in a trial of a child,  issues of law and fact are to be decided as would be the case for trial on indictment in the Supreme Court. Also, s 101 of the Youth Justice Act 1992 (Qld) provides that the provisions of the Criminal Code apply in the trial of a child on indictment before a judge.
  2. [9]
    In a judge only trial, the judge must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury.[1] Further, if an act or the common law requires a warning or instruction to be given to the jury or prohibits a warning being given to the jury, the judge must take into account the requirement or prohibition if the circumstances arise in the course of the trial.[2]
  3. [10]
    The judgment of the judge in a trial by a judge sitting without a jury, must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.[3]
  4. [11]
    This section is in accordance with Fleming v R,[4] where the High Court noted that a judge is required to explain the reasoning process linking those matters so as to justify the verdict in which the judge comes. Also, it was noted at [33] that any warnings which must be given must be recorded, heeded and taken into account.
  5. [12]
    In R v Mulcahy,[5] Nield AJ set out the directions and considerations which should be given at a judge alone trial. I note the following from the judgment:
  • A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules that govern a criminal trial are these.
  • The [prosecution] bears the onus to prove the guilt of the accused. The [prosecution] has asserted that the accused has committed a criminal offence, therefore the [prosecution] must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence. 
  • The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his/her guilt. 
  • The accused is presumed by law to be innocent of the offence with which he or she stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his/her guilt.
  • If the evidence which I accept satisfies me beyond reasonable doubt of his/her guilt, then he/she loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his/her guilt, then he/she remains presumed to be innocent and the appropriate verdict is not guilty. 
  • In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
  • As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the [prosecution] and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
  • I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
  • I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
  • I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what the witness has said if I consider it unworthy of acceptance.
  • In a criminal trial the [prosecution] must prove the essential elements of the charge beyond reasonable doubt. The [prosecution] does not have to prove everything about which evidence has been given beyond reasonable doubt.[6]
  1. [13]
    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities”. That is, the case must be proved to be more likely than not.
  2. [14]
    In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.[7]
  3. [15]
    In this matter, there was also discreditable conduct alleged, namely after the charged act the defendant dragged the complainant to the toilet and started to take his pants off. To rely on this evidence, the Crown will need to prove beyond reasonable doubt that it happened and it showed the defendant had a sexual interest in the complainant which he was willing to pursue.
  4. [16]
    Of course if proved as discussed, I may not use this to conclude guilt but only as evidence it is more likely he committed the offence charged.[8] I must still decide whether having regard to the whole of the evidence the Crown has proved its case beyond reasonable doubt.
  5. [17]
    Also, in this matter, the Crown has alleged the defendant made an admission by saying to the complainant “I’m sorry I guess”. In order to rely on this as an admission, I would need to be satisfied the defendant did say this and it was true i.e. an admission of the offence. If I accept the evidence, it is up to me to decide what weight I give the words, and what I think they prove.[9] Also, I would need to be satisfied it was not an admission to some other or lesser conduct e.g. the alleged discreditable conduct alleged.
  6. [18]
    As regards the preliminary complaint evidence lead in this case, I specifically record that is not evidence of the fact that the alleged rape took place.[10] The evidence may support or attenuate the credit of the complainant depending on whether it is consistent or inconsistent.[11]
  7. [19]
    There was also evidence given that the complainant was upset when she made the complaint. This is lead as part of the narrative only. There may be other explanations as to why the complainant was upset at that time.[12]
  8. [20]
    I also direct myself that the cross-examination and submissions by the defence may have left one with the impression there was a motive to lie on the part of the complainant. Even if I reject such a motive, it does not mean the complainant is telling the truth. It remains necessary for the prosecution to satisfy me that she is telling the truth as to the charged act beyond reasonable doubt.[13] Also, if there is any motive to lie a defendant may not know of it. There can be many reasons why people make false complaints.[14]   

Complainant’s evidence

  1. [21]
    The complainant gave evidence by way of a section 93A Evidence Act interviews and by way of a section 21AK Evidence Act prerecording. I also note that the Court was closed during the taking of the 21AK evidence, during the playing of the s93A statement, and the 21AK recording and during the taking of the complainant’s further evidence. There was a support person present during the pre-recording and during the taking of her further evidence.
  2. [22]
    I specifically record that the measures for the taking of her evidence are a routine practice of the Court and the Court should not draw any inference as to the defendant’s guilt from those measures. The probative value of the evidence is not increased or decreased because these measures were used and the evidence is not to be given any greater or lesser weight because of these measures.[15]
  3. [23]
    My reference to the transcripts is for ready reference. I am aware of course that the actual evidence is contained in the recording and the transcripts are an aid to my understanding of the recording.[16]

Section 93A statement

  1. [24]
    The complainant provided a s 93A statement to the police dated 30 June 2018.[17] She told the police that two years prior, her cousin (the defendant) sexually assaulted her.[18] She said it was night time, they were sitting watching a movie and all of the adults were outside.[19] She fell asleep under a blanket and she ended up leaning against him a bit and she woke up to his hand down her pants and his fingers inside her vagina.[20] After she woke up, he snatched his hands away and she pushed him away.[21] She was groggy at that stage.[22]
  2. [25]
    She was then yanked up and she tripped over, and she was pulled by the defendant through the living room down a hallway.[23] She thought they were going to look at movies but she started panicking.[24] She tried to pull away and he pushed her into the bathroom and she realised something was wrong and she said to him “no I want to get out M”. [25]
  3. [26]
    He shut the door, she heard it click and she edged around the wall.[26] She said “I don’t know what you’re doing but I want to get out”.[27] She managed to get out of the door but this was after he put his hands to the waistband of his pants.[28] After this, she managed to open the door and she ran straight outside to the adults.[29] She did not tell anybody.[30] She stayed there that the night and afterwards she pretended he was not there and did not want to say anything.[31] Later, he said to her “I’m sorry I guess”. He did not sound as if he meant it at all.[32]
  4. [27]
    She slept with her mother on a mattress that night and stayed as far as she could away from him.[33]
  5. [28]
    She had not seen him since then and she told her counsellor as school a couple of weeks prior to the interview what happened and he told her mother straight away and she had also told her sister.[34]
  6. [29]
    She told the police that the incident happened at the house on the Gold Coast.[35] She told the police that they were watching Die Hard in the TV room.[36] She said the incident happened on a Friday two years prior.[37] She was not sure of the exact date but it was in February.[38] She was 14 at the time, in year nine.[39] Her sister was not there because she was at a school camp.[40]
  7. [30]
    She described the other people that were at the house. She said that the defendant was a year older than her so he would have been 15.[41] She explained that the incident happened at night. It was fairly late because she was going to bed soon and this was the reason she fell asleep.[42] She said there were only kids in the room watching movies at that time.[43] The defendant’s younger brother had been there earlier but he was not there at the time it happened.[44]
  8. [31]
    She said she and the defendant were sitting side by side and their legs might have been slightly touching because there was a small blanket and she had fallen asleep, slightly falling against him a bit.[45] She described she was wearing sports shorts and a sports singlet.[46] She also had underwear on, a sports bra and a bra underneath.[47] She woke up to the feeling of his pulling out and the waistband of her pants snapped back down.[48] She felt an uncomfortable feeling and felt the fingers pulling out from inside her vagina.[49] He grabbed her arm afterwards and yanked her upwards and she tripped over the blanket.[50] She said that when she was taken towards the bathroom, he was gripping her tightly and she said she wanted to go back but he pushed her into the bathroom.[51] She explained how her back was against the door in the bathroom.[52]
  9. [32]
    He was not actually saying anything or doing anything and then he kind of snapped. His face was blank and he tried to get his pants down.[53] That is when she panicked and she pushed him away, got the door open and ran out.[54]
  10. [33]
    She remembers I, S’s husband, asking if she was all right and she said she was fine but she did not speak to anybody else.[55] She repeated that the defendant later said to her “I’m sorry I guess”.[56]
  11. [34]
    She told her best friend at school that she had been through a traumatic experience with a male but not the full detail.[57] She said she did not have a crush on the defendant and there was nothing she did that led him on.[58] She explained that she and her mother slept on a mattress afterwards.[59] She spent most of the time after the incident pretending it did not happen but it largely affected her schooling and health.[60]

Section 21AK hearing

  1. [35]
    The complainant gave evidence by way of pre-recording in the District Court on 14 November 2019.
  2. [36]
    In evidence-in-chief, she told the Court that what she said in the recording was the truth although she forgot to mention that she actually went and sat in the pool area after the incident.[61]
  3. [37]
    She did not consent to the defendant touching her on the vagina area or to him inserting his finger or fingers in her vagina.[62]
  4. [38]
    In cross-examination, she said she believed that the incident happened on school holidays but she was not totally sure and she was going into year nine. She was 13 going on 14.[63]
  5. [39]
    She believes they got there during the day. She did not go swimming. She was not sure what time they arrived.[64] There was a large amount of people there.[65] She agreed she spoke to a few of the adults after dinner. She could not recall when dinner commenced after they arrived. She recalls looking after the children of HB and later watching a movie.[66] She was not sure whether the defendant and his family were already at the gathering but recalls his father cooking steaks on the barbeque.[67] She remembered the defendant playing with the twins during the daylight and also recalled the defendant’s younger brother LF there.[68] She said that LF spent a lot of the night outside with the adults.[69] She did not have any memory of anything actually said between her and the defendant.[70] She recalls watching several movies and all three of them chose a movie. She only recalled watching Die Hard but she conceded it could have possibly been the movie Red.[71]
  6. [40]
    She recalls that when they initially watched the DVD in the lounge room, the defendant, LF, their uncle and possibly DF were there. GW and DF however did not sit down, they just set up the DVD and left. She watched part of the movie but ended up falling asleep.[72]
  7. [41]
    She disputed she was wearing pale coloured denim type shorts that day and said she was wearing black material and loose sports shorts.[73] She also said that she was wearing a dress during dinner but got changed out of it.[74] She also described the top she was wearing as being a dark teal colour.[75] She did not believe that she, the defendant or LF talked while they were sitting on the sofa.[76] She did not recall who was in the room when she went to sleep.[77] She recalled someone came in and made a comment, went to the bathroom and then went back out again.[78]
  8. [42]
    The reason she woke up is because she felt the defendant’s fingers inside her and she had a clear memory of this.[79] She sat up a bit, he pulled his hand out and she pushed him away and sat herself up.[80] She conceded that their shoulders were touching at the time, she fell asleep and she must have lent on him a bit.[81] She definitely did not put her head on his lap and she had a clear memory that the blanket was on her.[82] She could not say which hand he used on her vagina but became aware that his hand was inside her vagina.[83] She did not think his hand was inside her pants for very long because she woke up from the feeling.[84] She agreed that she was groggy when she woke up and was half asleep.[85] There was nobody else in the room at this stage.[86]
  9. [43]
    The defendant then grabbed her with some force but she did not understand what was going on.[87] She knew that he had his fingers inside her but as a child she did not understand what this meant and did not want to believe a family member was doing this to her.[88] She conceded she got her first period that weekend and was not sure if she was wearing a pad.[89] She agreed she got changed into shorts shortly before she went to bed.[90] She agreed that after the event she and her mother slept together on a blown up mattress.[91] She could not say whether it was one finger or more fingers in her vagina because she did not get a chance to count.[92]
  10. [44]
    After he pulled her up from the sofa she was dragged towards the bathroom and she did not start pulling away until they got to the hallway.[93] She did not have a clear memory but she thinks he told her they were going to look at movies but she started resisting in front of the toilet and he pushed her in there and closed the door and locked it which gave her fright.[94] She eventually undid the latch after he started undoing his pants.[95]
  11. [45]
    Later, she was sitting on the end of the couch and he came into the room.[96] She ignored him but he said “I’m sorry I guess” and she left the room.[97]
  12. [46]
    She said that she and her mother were not close.[98] She said to her school friend she had gone through a traumatic incident with a male in her past and that was all.[99] She told the chaplain that a few years prior her cousin had put his fingers down her pants and sexually assaulted her.[100] She denied telling anyone that the defendant and she were on a bed in the bedroom and the defendant had his hand down her pants.[101]
  13. [47]
    She told her sister exactly what she had told the school counsellor, that is, a few years prior the defendant stuck his hands down her pants.[102]
  14. [48]
    She again disputed she was wearing pale denim short type shorts that day.[103] It is possible that GW told her that day to close her legs.[104]
  15. [49]
    She denied holding hands with the defendant at some stage on the couch.[105] She said the only parts of her body which contacted him on the sofa were her arm and possibly the side of her leg and she denied putting her head on his lap.[106] She does not know if he went to sleep while she was asleep and she was adamant that he put his hands down her pants and a finger in her vagina.[107]
  16. [50]
    She was adamant that he yanked her up from the sofa and in fact locked himself in a bathroom with her.[108] It was possible she sat next to the defendant at breakfast but not by choice and did not recall having a conversation with him.[109]

Complainant - further evidence

  1. [51]
    The complainant was called to give further evidence.
  2. [52]
    In evidence-in-chief, Exhibit 2 was tendered which showed the clothing she was wearing on the day of the incident which was consistent with that described in the pre-recording. Exhibit 3 was a diagram of the premises.
  3. [53]
    In cross-examination, the complainant was shown Exhibits 4A to 4K which were various photographs of the house. She said that she did not know if the door leading to the lounge room was open or closed at the relevant time. She said that when she walked past the fridge and doorway to the pool area, the defendant was holding her on the arm and she was shrugging him off. She said she was yanked by him from the sofa and dragged to the bathroom.[110] At that point, she was not sure as to what was going on. She was tugging away from him, they went through the doorway and turned left where the DVDs were located and she started panicking at the end of the DVDs.[111] The photographs reflected the layout at the time.
  4. [54]
    Prior to going to the uncle’s house, her sister had been dropped off at camp and they stayed the night at GW’s house. They had driven down from Gin Gin and went to Mount Tamborine to hike before they went to the uncle’s house. The uncle’s house is at the Gold Coast. They arrived after lunch, stayed there the afternoon and stayed the night. They then left the next day and went straight home. They picked up the sister at some point. She believed it was a Saturday and believed it was possible she was on school holidays.[112] The mother took the photograph marked as Exhibit 2.[113] She did not recall leaving and coming back to the uncle’s house.[114] She then conceded it was possible she had already started back at school at the time of the event.[115] She agreed she told the police on 30 June 2018 it happened on a Friday but this was her best estimate.[116]
  5. [55]
    It was admitted that on 29 January 2016, her mother contacted her school to say that she was on holidays.[117] It was her recollection that JB, HB and their twins were there that day and she played with the twins for 20 minutes and left before dinner. It was her recollection that the defendant and LF also played with the twins.[118] She disputed the proposition that JB was the only one there.[119]
  6. [56]
    She said the next day she wore a black singlet and black and white denim shorts.[120] She said in the pre-recording that she wore a dress to the uncle’s house.[121] She said in evidence before me that she got changed into the dress for dinner.[122] She said that she was in the dress during dinner.[123]
  7. [57]
    She was then cross-examined about a victim impact statement which she had provided. She agreed that she used the term “assault” in the document and she explained this was when the defendant stuck his fingers into her vagina, took her to the bathroom and attempted to go further, i.e. the whole incident.[124] She agreed she claimed that her entire life had been affected and she suffered PTSD, depression and anxiety.[125] She agreed she said in the document that because she was so young she did not understand what happened.[126] She explained that she realised what sexual assault was when she was in year 10.[127] The incident happened when she was 13 and in year nine.[128] She agreed she told the police it did not seem real.[129] She realised that something was wrong when she was pushed into the bathroom. She was starting to be concerned when she was being dragged through the dining room.[130] She was aware what happened was wrong but was not aware it was sexual assault at the time.[131] She felt unsafe.[132] She knew in the toilet that he should not be taking his pants off.[133] As a 13 year old girl, she knew what was happening was wrong but she did not understand what was going on.[134] As she got older, the PTSD, anxiety and depression developed.[135] She realised it was sexual assault after she started legal studies in year 10.[136] It was after this that she started having panic attacks, flashbacks and paranoia.[137] The flashbacks involved her seeing him taking her to the bathroom and him trying to take his pants off.[138] Everything got far worse after the legal studies.[139] She started suffering extreme migraines which led to blackout and flashbacks.[140] This happened between 2017 and 2018.[141] It got worse in 2018 and indeed she was hospitalised a lot more and the flashbacks happened all of the time.[142] She agreed she had spent a lot of time at doctors.[143] At the age of seven, for two years between 2010 and 2012, she was consistently seen by doctors for UTI’s, abdominal pains and incontinence.[144] In 2012, she was diagnosed with ADHD.[145]
  8. [58]
    As of 16 April 2012, there was a history of problems with memory, concentration and inattention.[146] She was prescribed Ritalin and then Concerta which she is still on.[147] She saw a number of doctors for her ADHD.[148] She agreed that between 2016 and 2018 there was no complaint made to doctors concerning PTSD and anxiety.[149] In March 2018, there were complaints about headaches and migraines and there had not been headaches before that.[150] She saw a number of specialist doctors.[151]
  9. [59]
    There was a CT of her brain conducted on 22 March 2018 and no abnormality was detected.[152] She had time off school.[153] In April 2018, she said the headaches came on at school and home, and on most occasions she became unconscious.[154] There was a normal MRI as at 19 April 2018.[155] She saw a specialist neurologist Dr Shah on 1 May 2018 and she told him that known triggers for the headaches included stress.[156]
  10. [60]
    She made a complaint to Mr DL in May 2018.[157] She had seen him before this.[158] When she spoke to Mr DL in May 2018, he was the only person she could go to.[159] It was common ground that the complaint to him was made on 28 May 2018.[160] That day she was with CR but he was not her boyfriend at the time.[161] She made no complaint to anybody else prior to that date.[162] She agreed that she was prescribed large number of drugs for her headaches, including Endone and Endep.[163] A number of these drugs did not work.[164] She does not take migraine medication now.[165] She was on these drugs between March and May 2018.[166] She also has asthma.[167]
  11. [61]
    After she spoke to Mr DL, he told her mother and she then spoke to her mother and then spoke to the police and provided the interview.[168] She said that she spoke to her sister after she spoke to the police in person, and told her what happened at the police station.[169] She agreed that Dr Ali was her GP and had been so since about 2009.[170]
  12. [62]
    She agreed there had been occasions on which she had tried to commit suicide but she did not tell anyone.[171] She also agreed she missed a fair bit of school.[172] She said that she struggled at high school because of the assault.[173]
  13. [63]
    It was put to her and not denied that in 2016 she was absent from school for 13 days, 15 days in 2017, and 44 days in 2018.[174] In 2018, she missed a lot of days from school because of the migraines, she also fell down and suffered blackouts and was taken to hospital.[175] She would blackout and when she came to there would be flashbacks.[176]
  14. [64]
    Concerning the flashbacks, many of these happened in 2018 and 2019.[177] What would happen she would get a feeling of paranoia, she would blackout, go to the ground and then would suffer a flashback of being dragged to the bathroom.[178] She would kick and scream and claw at her own body.[179]
  15. [65]
    Exhibit D was a photograph of denim shorts which was shown to her. She claimed that she had never owned shorts like that.[180] She said that when she made the complaint to Mr DL she told him she had been sexually assaulted.[181] She told him that she had woken up with the defendant’s hands in her pants.[182] She agreed that the first person she told that a finger was inside her may have been Mr DL or the police officer.[183]
  16. [66]
    In re-examination, she said she made no earlier complaint because she was scared and terrified.[184] She could not be sure if she spoke to her sister before or after she went to the police.[185] Her pre-recorded evidence at pages 23 to 24 was pointed out to her in which she said that she spoke to her sister prior to providing the police interview.[186]
  17. [67]
    As regards to any inconsistency concerning the dress, she said that she was less nervous then the last time she gave evidence and she had thought about things more clearly.[187]
  18. [68]
    She could not say if the curtains to the lounge room were open or closed at the time of the event.[188]
  19. [69]
    In further cross-examination, she said she spoke to her sister once in the sister’s car about what had happened.[189] She felt uncomfortable telling her parents.[190] She told her sister what she had told Mr DL, that is, the defendant stuck his hand down her pants.[191] She does not recall telling her anything else.[192] She told her sister between the time of telling Mr DL and going to the police station.[193] It was some weeks before she went to the police.[194] Mr DL called her mother on 28 May 2018 and shortly after this she spoke to her sister.[195]

Other Crown witnesses


  1. [70]
    TD, the complainant’s mother, gave evidence that the complainant was born in 2002. The defendant is a cousin of the complainant by marriage. On 30 and 31 January 2016, they went to GW’s house. The reason for this was her nephew, SW, and his partner, I, had come over from the UK and there was a family barbeque. Also, the complainant’s sister, AD, had been in Canberra and she was arriving back Sunday and they had to pick her up.
  2. [71]
    She and the complainant drove to JB’s house on Friday 29 January 2016.[196]
  3. [72]
    On Saturday 30 January 2016, they first went to Mount Tamborine and hiked, and after that went to GW’s house.[197] On Saturday 30 January 2016, the complainant was wearing a sports tank top and sport shorts.[198] Exhibit 2 is the photograph she took and Exhibit 5 is the digital printout showing the photograph was taken at 9:44am on 30 January 2016.[199]
  4. [73]
    After they left Mount Tamborine, they drove to GW’s house. TD probably changed as she had a leech. The complainant wore the same clothes. She definitely slept in them.[200] The complainant also took a dress with her.[201] In the evening, she was wearing the shorts.[202] The dress she believed was a floral dress.[203] The witness denied the complainant was wearing pale denim shorts and denied that she owned shorts like that in Exhibit D for identification.[204]
  5. [74]
    They got to GW’s house after lunch maybe about 1:00pm and had lunch there. The defendant’s family arrived sometime in the afternoon and after that, some neighbours arrived. JB was there too. She arrived not long after they arrived. She is married to HB, and HB has twin boys who are about six or seven years of age. JB was dropped off.[205] The witness cannot recall who dropped her off but HB was working.[206] She cannot recall if the twins were at the house.[207]
  6. [75]
    As at January 2016, the complainant was 13, the defendant 14 and LF was younger than them both.[208]
  7. [76]
    The witness had a couple of beers. During the afternoon, the complainant hung out with the defendant and LF, and they watched movies in the lounge room.[209] Exhibit 6 was a diagram she drew of the lounge room. The complainant and the defendant were sitting next to each other on the lounge. She saw them like that when she went to the bathroom and the fridge. LF was not with them the whole time.[210] At one point, she walked in and the complainant was asleep with her head on the defendant’s shoulder.[211] A movie was on. This was in the evening after dinner.
  8. [77]
    They had dinner about 6:00pm to 7:00pm. During that time, GW was in the kitchen. The food was on the outside table and main table inside.
  9. [78]
    The witness described how there were covers on the couch, like throws.
  10. [79]
    For dinner, TD made the complainant eat something. There were around 12 to 17 people having dinner at that stage.[212] When she saw the complainant asleep the defendant was awake.[213] The complainant had her eyes closed and she was fast asleep. Her head was on the defendant’s shoulder.[214] They were covered up to the waist.[215] GW had said that they were cute and that is why she went into the lounge room to look at them.[216]
  11. [80]
    That night, she slept with the complainant on a blow up mattress next to the leather couch.[217] She said the DVDs in the house were kept in the hallway.[218] She said the toilet in the hallway had a latch hook.[219] She said that dinner was sometime between 6:00pm and 7:00pm. She got to bed around midnight. She said that after she had seen the complainant asleep, she came out with them to the barbeque area.[220] She cannot say if it was one to two hours later.[221] The complainant first went out to the pool area and then sat with her. The complainant was very quiet.[222] This is a few hours before they went to bed.[223] DF, the defendant and LF slept also in the lounge room and the complainant insisted that she sleep next to the couch side.[224]
  12. [81]
    On Sunday 31 January 2016, they got up early to go and pick AD up from Roma Street. They went back to GW’s house because AD wanted to see SW and I. They got back to GW’s house at about 8:00am to 9:00am and had breakfast there.[225]
  13. [82]
    The complainant was reading but would not talk to anybody.[226] TD said JB did not stay the night at the party and HB (a police officer) picked her up at about 9:00pm.[227] The witness said there were family gatherings there two or three times a year and between 2008 and 2016 there were quite a few, and once a year the kids went there.[228]
  14. [83]
    In June 2018, TD received a call from Mr DL and as a result, spoke to the complainant. The complainant told her the basics of what happened.[229] TD asked AD to talk to her.[230]
  15. [84]
    She agreed the complainant suffered blackouts which started in 2018 and she was hospitalised for these. The doctor felt they were migraines. On occasions after a blackout, an ambulance would attend and she would be sedated. After a blackout, she would collapse and when she would come to she would be screaming and tearing at herself. Two of these incidents were at her home and others were at school.[231]
  16. [85]
    There had been no contact between the defendant and the complainant since 2016.[232]
  17. [86]
    In cross-examination, the witness confirmed that they drove from their house to JB’s house on Friday 29 January 2016. They arrived there in the afternoon and stayed there that night. The next morning they went to Mount Tamborine, leaving JB’s house at about 7:00am to 8:00am. They arrived at GW’s house at about lunchtime. There was a small group there when they arrived. Others kept arriving.[233]
  18. [87]
    Some close friends and family had dinner there.[234] The witness had a couple of beers, half a dozen weak vodkas and perhaps one or two glasses of wine.[235] She was not driving.[236] People were swimming in the pool but she did not recall the complainant swimming.[237]
  19. [88]
    The defendant and LF swam in the pool.[238] The defendant’s family arrived mid-afternoon.[239] JB got there before the defendant’s family.[240] It was a hot afternoon with the front door open. No air conditioning was on.[241]
  20. [89]
    GW spent a lot of time outside but was also preparing food in the kitchen.[242] The children just came out for dinner.[243] LF sat outside with them.[244]
  21. [90]
    After dinner, someone told her to go and look at the complainant and the defendant.[245] RF may have looked at them as well.[246] After dinner they cleaned up. LF did not stay outside all night.[247] At the time she went to look at the complainant and the defendant, LF was still outside.[248] JB left shortly afterwards.[249]
  22. [91]
    HB came in and stayed for a little while.[250]
  23. [92]
    As to the complainant’s migraines and headaches, the first time this is mentioned was to Dr Ali on 1 February 2018.[251] Exhibit 7 is a list of the medical episodes at school.[252] She confirmed Dr Ali was their GP and she took the complainant there with headaches and migraines regularly. The complainant was referred to a neurologist and a paediatrician as well.[253]
  24. [93]
    On 28 May 2018, the complainant remained in the sick bay at school. The witness confirmed that she had discussed what the complainant had said with Mr DL. He advised her that police would be contacted.[254]
  25. [94]
    She said that there was contact with her by a nurse concerning the complainant’s migraine management.[255] She confirmed the complainant suffered from ADHD.[256] She confirmed the complainant took Endep and Endone for migraines.[257] The paediatrician felt that anxiety was causing the migraines.[258] She said that prior to going to the police, the complainant told her that she had been sexually assaulted by the defendant.[259] The witness asked AD to talk to her and AD told TD that the complainant told her that the defendant had put his hand down her pants.[260]
  26. [95]
    On 30 June 2018, she and the complainant attended Dr Ali and the complainant told Dr Ali that she had been sexually assaulted by the defendant, she woke up with his fingers in her underpants and he dragged her to the toilet.[261] Later on that day, the complainant was interviewed by the police.[262]
  27. [96]
    The witness confirmed she had previously given two statements to the police and evidence in the District Court on 3 February 2020.[263] She conceded that there was no reference to the Mount Tamborine trip in the previous statements or her evidence because since the previous trial she had looked for photos and this had triggered her memory and she found the photo recently.[264] She said that she sent an email to the DPP with the photograph.[265]
  28. [97]
    In her statement dated 10 July 2018, she said that she travelled with JB to GW’s house and their plans were to return to JB’s house later. In evidence on 3 February 2020, she said that she went to the party with the complainant and JB, that is all three of them, drove in the car to the party. TD said this was incorrect.[266]
  29. [98]
    In her evidence on 3 February 2020, TD said that they arrived at the party at 4:00pm which she said was incorrect.[267]
  30. [99]
    She conceded she said in her evidence on 3 February 2020 that about 20 or 25 people attended the party.[268] In her evidence on 3 February 2020, she said the dinner was at about 7:00 to 8:00pm. Also in her evidence, she said the complainant, the defendant and LF were the only children at the party. She conceded that she saw the complainant in the lounge room after the children went inside to watch movies after dinner and this was not the only time she went in there.[269]
  31. [100]
    As to the allegation the complainant may have changed into a dress, no one had ever raised this with her.[270] The witness’s best memory is that the complainant arrived in the clothes depicted in Exhibit 2.[271] In February 2020, she conceded she gave evidence that the complainant wore shorts and a t-shirt to the party and did not get changed.[272]
  32. [101]
    The witness said that when she saw the defendant and the complainant; the defendant was awake.[273] She does not know how much longer after this the complainant came outside.[274]
  33. [102]
    In her evidence in this Court, she said that LF spent a lot of time outside with the adults after dinner.[275] She conceded that nothing to this effect was in her statements or previous evidence.[276] She did not recall DF telling LF to go back inside with the children.[277] Her recollection was that LF was outside entertaining the guests.[278]
  34. [103]
    She said that the complainant had a blanket over her which was over both the complainant and the defendant.[279]
  35. [104]
    She agreed that she was in and out of that room to go to the bathroom.[280] She disagreed that LF spent most of his time inside.[281] She disagreed that the complainant wore the shorts depicted in Exhibit D.[282]


  1. [105]
    JB is married to HB who has 11 year old twins. As at 2016, the twins were about six or seven years of age. The defendant and complainant are JB’s second cousins.
  2. [106]
    On 30 January 2016, there was a party at GW’s house and she was dropped off there in the afternoon. SW and I were over from the UK which was the reason for the family barbeque. TD, the complainant were there and the defendant’s family were there. JB did not think the twins were there.[283] Her husband was at work. There were about 10 to 15 people there. They were all drinking out the back. All of them were over the limit but no one was rolling around drunk aside from perhaps DW.[284]
  3. [107]
    They always sit outside during these parties. The kids were inside watching TV or swimming. As far as she recalls, all of the kids were swimming. She said “pretty much all of them”.[285]
  4. [108]
    As to the lounges, DW had throws on those couches. It was her recollection that the complainant and the defendant were sitting on the couch on the left hand side of the room directly opposite the TV.[286] JB went to the bathroom a couple of times.[287] She believed the complainant had a sheet on top of her.[288] The complainant was asleep and the defendant was awake.[289] LF was on the other couch.[290] She does not know if this was before or after dinner.[291]
  5. [109]
    HB picked her up when it was dark. She does not know what the complainant was wearing but it was not untoward.[292] There is a separate toilet in the house. She agreed there may have been other family gatherings when the twins were there.[293]
  6. [110]
    In cross-examination, the witness said it was a hot day and everybody was swimming and having fun.[294] She did not recall travelling to the party with TD and the complainant but could have.[295] HB picked her up after his shift. She agreed that dinner was at about 7:00pm and her husband may have picked her up at about 9:00pm.[296] HB came in and said hello to everybody.[297] At the party, she went to the bathroom and she could clearly see into the lounge room when she was coming out.[298] At one point, she told the kids to come outside because she thought they were rude.[299] The children did come outside for dinner.[300]
  7. [111]
    She recalled the complainant coming out later on and was quiet and would not socialise.[301] When she saw the complainant on the couch, her head was on the side of the couch, the defendant was sitting upright at the opposite end to the complainant’s head.[302]


  1. [112]
    AD, the complainant’s older sister, gave evidence that she knows the defendant. She recalled going to various family gatherings at the Gold Coast at GW’s house. In January 2016, she recalls going on a science camp to Canberra. She was there over Australia Day, it was for two weeks. Her mother, TD, and the complainant picked her up. She did not recall where they went.[303] In June 2018, she spoke to her mother who told her something and she then spoke to the complainant.[304] There was a further conversation with the complainant towards the end of June 2018.[305]
  2. [113]
    The first conversation with the complainant occurred at their house in the complainant’s bedroom. The complainant told her that in January 2016, at the Gold Coast, she was on a couch with the defendant and she fell asleep. She woke up to the defendant with his hands/fingers inside her.[306] It took quite a while to get the details.[307] She was in the bed at the time. She was overwhelmed and AD did not press her for details.[308] 
  3. [114]
    As to the second conversation, this occurred at the end of June 2018, before they went to the police. It was in AD’s car. They went for a drive so they could talk. The complainant went into further detail. She said she had been sitting there, fell asleep, she woke up and felt the defendant’s hands in her pants and fingers inside her.[309] She jolted and stood up and tripped over the blanket.[310]  He then dragged her to the bathroom, then into a toilet, shut the door and tried to take her pants off.[311] She got away and ran outside.[312] This was a longer conversation than the first one, it was about an hour.[313] The complainant wanted to tell her more. The witness did not appear to me to ask leading questions.[314] 
  4. [115]
    In cross-examination as to the first conversation, she said that in her statement to the police the complainant told her that she was on a couch watching Die Hard and she woke up and the defendant’s hand was in her pants.[315] She accepted in her statement she made no reference to fingers being in her vagina.[316] She accepted that it may have been that she had confused the two conversations.[317] She said that the complainant was clearly upset at the time of the first conversation.[318] 
  5. [116]
    In the second conversation, the complainant wanted to talk to AD and AD wanted to understand what happened.[319] She said that before the second discussion, she believed that others had told her about the fingers being in the vagina because this was not mentioned in the first conversation.[320] She did not recall if her mother told her.[321] She agreed that she wanted to know what happened.[322] The reason for this is she did not want to give a vague statement to the police and she wanted further details.[323] This was because the first conversation was very vague.[324] Despite this, the witness said she did not push the complainant and asked simply for more details.[325] She wanted as much information to tell the police as possible.[326] She knew that she was going to give a statement to the police because she was a member of the complainant’s family.[327] She agreed that she made no notes of the second conversation.[328] She also agreed the complainant told her in the second conversation that when the complainant woke up she was a bit groggy and did not really know what was going on.[329]


  1. [117]
    Mr DL is the High School Chaplain at the complainant’s high school and he knew the complainant. On 17 May 2018, he had a conversation with the complainant. The complainant and another student came to his room and the complainant asked him about reporting obligations. He gave her some examples.[330]
  2. [118]
    On 28 May 2018, Mr DL spoke with the complainant at 9:30am. She re-clarified the reporting obligations and then made a disclosure.[331]  She came with another male student. She told Mr DL that she was at a relative’s house in Brisbane at a party. All of the adults were outside. She was asleep on the bed, she awoke to her cousin’s hand down her pants.[332] He then dragged her into a bathroom and attempted to have intercourse and she pushed him off and ran to the adults.[333] Mr DL told her that he needed to report this. He jotted down some brief notes, but did not investigate this.[334] The conversation lasted for no more than 10 minutes.[335] He then notified the principal.[336] He then typed up a child protection report.[337] He did the report at about 10:00am, and at 10:40am rang the complainant’s mother TD.[338]
  3. [119]
    In cross-examination, the witness said he had previously been a voluntary paramedic which job entailed detailed note taking.[339] He tried to get down as best as he could what the child said verbatim.[340] He had dealt with this complainant before.[341] He knew that she suffered from bad migraines.[342] 

Defence - no evidence

  1. [120]
    The defendant has not given or called evidence. That is his right. He is not bound to give or to call evidence. The defendant is entitled to insist that the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and I must not assume that because he did not give evidence, that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier.  It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.[343]

Defence evidence

  1. [121]
    The defence did call Mr DF, the father of FAX, and tendered the evidence of SW[344] and GW.[345]
  2. [122]
    I note that by calling this evidence, the defence did not undertake any onus of proof. The evidence is to be added to the evidence called by the prosecution.
  3. [123]
    Importantly, in a criminal trial, it is not a question of my making a choice between the evidence and the submissions of the prosecution and evidence and the submissions of the defence.[346]
  4. [124]
    I have directed myself that I do not have to believe that the defence witnesses are telling the truth before he is entitled to be found not guilty.
  5. [125]
    Importantly, if, however, after considering the evidence of the defence witnesses, I was to find their evidence should not be accepted, I would still be careful not to jump from that view to an automatic conclusion of guilt. As I have said before, the onus is not on the defence. If I find the evidence of the defence witnesses unconvincing, I must set it to one side and go back to the rest of the evidence and ask myself whether, on the consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.[347]
  6. [126]
    Also, I specifically record that if I am left in doubt as to where the truth lies, I should find the defendant not guilty.


  1. [127]
    Mr DF gave evidence that he was the father of the defendant. He had previously been a New Zealand police officer between 1989 and 1997 and had worked in various jobs including security since that time. Presently, he works as a senior security officer with a major hospital. He knows the complainant and explained their relationship. He agreed there had been family functions over the years. TD is GW’s sister. 
  2. [128]
    In early 2016, SW and I came out from the United Kingdom. A number of people were invited to GW’s house for a function. DF and his family arrived there at about 4:00pm. He spoke to GW when they arrived.[348] He saw TD and the complainant there.[349] The defendant and LF went inside to watch movies while DF socialised.[350] All of the children were inside watching movies.[351] DF was to cook food on the barbeque.[352] GW, a chef, cooked and prepared food inside the house.[353] Some other people helped from time to time.[354] The barbeque started at about 6:00pm and they started eating at about 7:30pm.[355] About 20 to 30 people in total were at the function, coming and going. The children were inside watching movies and came out intermittently.[356] 
  3. [129]
    All of the children came out for dinner. The boys ate dinner outside and he thinks the complainant did too.[357] He said it was hard to get out from the kitchen because of the people there.[358] He said GW delivered the food through the front door to the rear.[359] The drinks were kept in an esky and fridge out the back.[360] He said the kitchen was in an open space referring to Exhibit 4E.[361] The witness said he went inside numerous times to see the children and they were watching movies.[362] LF came out once or twice, but DF sent him back in.[363] DF said he only had a couple of beers because he was going to drive home.[364] He said the defendant came out once or twice to get a drink.[365] After dinner, there was a lot of cleaning up which lasted for about one to one and half hours. Dinner finished at about 8:30pm and there was a lot to clean up.[366] The boys were still in the lounge room at this stage and he regularly looked in at them.[367] He accepted LF did go out for about five minutes or so to talk to the adults.[368] After cleaning up they relaxed. At one point, GW called a number of them in, namely TD, RF and JB and pointed at the defendant and the complainant on the couch at the back wall. Both of them were asleep. The defendant was upright with his mouth open and the complainant was snuggled up under his left arm asleep as well.[369] 
  4. [130]
    He accepted there was always a sheet kept on the couches.[370] He said that the group watched them for a couple of minutes and he conceded that LF was not in the room at that stage.[371] LF then came back in and sat on the lounge.[372] He claimed this was at about 10:00pm.[373] People were starting to leave and they went through the front door.[374] Also, people were around the dining room table at that stage and that is where they would say goodbye.[375] After this, the boys and he slept in the lounge room.[376] They had blankets. There were eight to nine people in the house still when they went to bed. The defendant and LF were still in the lounge room and went to sleep.[377] At no stage did the witness see the defendant drag the complainant to the hallway entrance.[378]
  5. [131]
    There was breakfast the next morning and the nine people mentioned were still there, as was the complainant. They all sat in the pergola area. He did not take notice of the complainant.[379] He claimed when they arrived, he saw the complainant who had very short cut blue denim shorts on and a loose fitting shirt singlet on.[380] It was very similar to Exhibit 9, the photo of the denim shorts.[381] He was shown Exhibit 2 and said that the top the complainant wore was far looser than the one in the photo and the shorts depicted in the photo were the ones worn the next day.[382] He said it was a warm day at the end of January.[383] He did not recall anyone swimming and did not think they did.[384] The air-conditioning was not on, but the fans were going. It was warm in the kitchen, but not unbearable.[385] He said from the time they were called into the room to look at the complainant and the defendant and when he went to bed, it was about 30 minutes.[386]
  6. [132]
    In cross-examination, the witness said that he was trained in observation by reason of his previous job as a police officer.[387] He said that he had two beers on the afternoon of 30 January 2016.[388] He agreed that GW, his stepfather, would host functions at the house.[389] He agreed that TD and the complainant would attend some of those functions, as would the defendant and LF.[390] He agreed that JB was there on 30 January 2016 and JB was there to see the two children asleep on the couch.[391] He said that his family got there at about 4:00pm.[392] He said the two boys were in the lounge for most of the day; that is from 4:00pm until 10:30pm.[393] He did not recall anyone swimming.[394] Dinner was at about 7:30pm.[395] The barbeque started at about 6:00pm.[396] He agreed that the children were not under his observation from 6:00pm to 7:30pm, although he claimed he went to check on them.[397] Dinner went from 7:30pm until 8:30pm, during which the kids were outside.[398] He agreed there was about 20 to 30 people.[399] Dinner finished at about 8:30pm and the clean-up lasted until about 9:30pm or 10:00pm.[400] It was at this stage that GW called him, TD, RF and JB to see the kids asleep.[401] This was about 9:50pm.[402] He claimed he saw the defendant asleep and the complainant asleep.[403] LF was not there at that stage.[404] He agreed the kids were not “chained” in the room.[405] He agreed that the DVDs were kept in the hallway and agreed he did not supervise the children’s selection of DVDs.[406]  He claimed that if the defendant and complainant went to the DVD area, he would have paid attention.[407] He said this was because of what he was told by GW.[408] He admitted saying that he said that he had mentioned nothing as to these concerns raised by GW in his evidence at the trial in February 2020.[409] He said he paid particular concern about the complainant that day.[410] He was extremely concerned about the pants because they were extremely short for someone so young.[411] He agreed that TD said the two kids were cute.[412] He repeated his earlier evidence that he checked on the kids regularly and went in there about four to five times between 8:30pm and 10:30pm and six times before 8:30pm, a total of about 11 times.[413] He agreed this was about 22 minutes of observations over a six and a half hour period.[414] He agreed he did not know what was happening in that room for about six hours.[415] He said that he told LF to stay in that room and he wandered by every now and then.[416] He agreed, although he was vague on this I thought, after dinner the complainant came outside at about 10:00pm.[417] He did not recall her reading a book, but believed she sat near the mother.[418] He was happy because she was separated from the defendant.[419] He denied that he saw the children asleep on the couch at about 9:00pm and denied that JB left the house at 9:00pm.[420] He said the twins were not there and said the sheets were not covering the complainant and the defendant.[421] He was shown Exhibit 2, but repeated his assertion that the complainant was wearing denim shorts which exposed her buttocks.[422] He agreed the adults were mostly socialising in the back patio area.[423] He said another young boy was present earlier on.[424] He said he had no concerns as between the defendant and complainant from what he observed.[425]
  7. [133]
    In re-examination as to the conversation with GW which was not mentioned in the trial in February 2020, he said he told Mr Kimmins about that prior to the trial and Mr Kimmins said it was not admissible, and he as a former police officer agreed not to give evidence of that.[426] He said the denim shorts exposed part of the complainant’s buttocks and they were extremely tight fitting.[427] He said JB did not stay the night and left the house.[428] He agreed he saw HB.[429] He said that GW called them up to see the complainant and the defendant before HB arrived.[430] When JB came, he could not say how intoxicated she was.[431] He said that TD was fairly intoxicated.[432] 

Exhibit 10 – evidence of SW

  1. [134]
    SW gave evidence that at the start of 2016, he and his partner travelled from England to Australia. There was a party at GW’s house which commenced after 12:00pm.   People were constantly arriving throughout the day and the evening. There were quite a lot of people throughout the day, but it was sporadic throughout the night. She recalled the complainant and her mother, TD, arriving together.[433] The defendant’s family also arrived at some stage that afternoon.[434] As to the complainant, SW thought she was dressed inappropriately because she was wearing short shorts, like jeans shorts, which were very tight.[435] He denied she was wearing black sports pants with an elasticised waist.[436] The complainant, the defendant and LF were in the lounge room.[437] SW was in and out all afternoon welcoming friends and saying goodbye to friends.[438] The children were sitting on sofas with the complainant and the defendant sitting together.[439] He was constantly in that room throughout the night and day.[440]
  2. [135]
    He agreed the complainant and the defendant were in the lounge room a lot of the time, away from the adults.[441] He said that he thought they were “a little bit too affectionate towards each other” and he made a comment to his father.[442] They were very close and cuddly and he witnessed they were touching hands.[443] There was no animosity between them.[444] They were pretty much glued to the hip for most of the day and night.[445] GW raised his concerns with his father.[446]
  3. [136]
    Also, GW was going in and out of that room as well.[447] SW ultimately went to bed because he was exhausted.[448] Aside from the touching of the hands, he did not witness any other physical contact between the complainant and the defendant.[449]
  4. [137]
    The following morning there was a family breakfast. TD and the complainant went to get AD from the bus station and they came back.[450] GW cooked breakfast for all of them and they talked about the night before.[451] Everything seemed normal. As far as he was concerned, the kids were just hanging out watching DVDs in the lounge room.[452]
  5. [138]
    In cross-examination, the witness said there were probably no more than about 15 people probably at the house at the same time.[453] The witness said he welcomed friends who were coming up the driveway.[454] He agreed he was not keeping an eye on the children 24/7.[455] He agreed that some people were drinking more than others.[456] As to the dinner, it was not a matter where everyone formally sat down together, it was very informal.[457] As to the complainant and the defendant being a little too affectionate on the couch and touching hands, he could not recall what time of day that was but probably very late afternoon to early evening when he told his father about this.[458]
  6. [139]
    At one point when he was coming through, they were holding hands and they then moved their hands apart and that’s when he got alarmed.[459] They were both awake at that stage.[460] The witness went to bed probably at about 10:30pm to 11:00pm.[461]

Exhibit 11 – Evidence of GW

  1. [140]
    GW gave evidence as to how he was related to the complainant and the defendant. At the start of 2016, a function was organised at his house for SW. He gave evidence that the guests starting arriving after midday. He said there was a steady stream of people coming and going throughout the course of the afternoon and into the night. During the course of the afternoon, he was working in the kitchen doing the catering and serving the meals right throughout the day and night.[462] The whole lot of the guests ended up under the pergola area near the swimming pool.[463] He was preparing the food in the kitchen and bringing it out during the course of the afternoon.[464] He would go out the front door because there were so many people there and then walk around the side of the house to the patio.[465] When he was doing this, because it was an open space, he could see into the lounge room.[466] He agreed the complainant and her mother TD arrived.[467] He said the complainant was wearing short shorts and a top.[468] He said that when she opened her legs you could see the lining of her underpants and he made a comment to her that it was not an appropriate way for a young girl to be sitting.[469] During the course of the afternoon, he saw the complainant, the defendant and LF together.[470] LF was on one sofa and the complainant and the defendant were on the other one.[471] The TV was on. During the course of the afternoon, he saw this.[472] At one stage, during the course of the afternoon and into the night, the complainant and the defendant were cuddled up together and they seemed quite happy.[473] They were sort of snuggled up together.[474] He spoke to DF and TD about this that he was concerned and that they should keep an eye on them.[475] He went to bed quite late because he tried to tidy up a bit.[476] The next morning there was a communal breakfast that he had cooked and he did not notice any animosity the next day.[477] He did not see any animosity between the complainant and the defendant.[478]
  2. [141]
    In cross-examination, the witness said that he was cooking a fair bit in the kitchen and taking those dishes out to people outside.[479] He did not socialise that much but did have the kitchen window open and talked out of the window to people.[480] He could not honestly say what time it was that he stopped cooking the food.[481] He agreed that he paid a lot of attention to his cooking.[482] He agreed that his attention was divided between talking to people, cooking and at times seeing the children in the lounge room.[483] He never watched them 24/7.[484] When he saw the complainant and the defendant in the lounge room, they were both awake and it was definitely in the afternoon.[485] He never saw them asleep at any time when they were sitting there.[486] He could not say whether the complainant fell asleep at some stage.[487] In re-examination, he said that he may have seen the complainant and the defendant on the sofa during the dark as well.[488]

Defence submissions

  1. [142]
    The defence submitted that a Robinson direction should be given.
  2. [143]
    As to the witness JB, it was submitted she does not advance the Crown case and she had no reason to recall intricacies of the event in question. As to the witness TD, there were question marks about her credibility and reliability and she was just supporting the complainant, and the Court should find she was untruthful. She drank from 1:00pm until midnight, and DF said she was intoxicated. The first time she considered what happened was two years later in 2018. Additionally, her testimony in February 2020 was inconsistent with the testimony given in this Court. The email, Exhibit 8, was also inconsistent with her evidence. The mention of Mount Tamborine was contrary to her earlier evidence. Also, she had previously said they arrived at the party at 4:00pm which is different. She also introduced the possibility of the dress which was not mentioned previously. Additionally, there were inconsistencies concerning where LF spent his time and as to the positions of the children.
  3. [144]
    As to the preliminary complaint evidence, the defence submitted that when she spoke to the sister and the mother, the allegation was the defendant put his hands down her pants and sexually assaulted her. There was no reference to digital penetration. Importantly, the complainant claimed she did not speak to the mother about this. As to Mr DL’s evidence, his evidence about what happened on 17 May 2018 does not advance things.[489] Importantly, the complaint on 28 May 2018 was that she was asleep on the bed (contrary to the complainant’s evidence) and awoke to her cousin with his hand down her pants. There was no mention of digital penetration at that stage. With respect to the mother, when she spoke to Dr Ali, the complainant said she woke up and the defendant’s fingers were in her underpants.
  4. [145]
    In the first conversation according to her police statement, the complaint was that the defendant’s hands were in her pants but there was no mention of digital penetration. AD conceded she may have mixed up conversations. With respect to the second conversation at the committal, AD said she was aware she would have to give a statement to police and wanted to know what happened to back up the complainant. The conversations between she and the complainant were not recorded and the reality is she was trying to illicit further material. It was at this stage that digital penetration was mentioned for the first time. Also, AD alleged in this conversation, the complainant said that the defendant tried to take her pants off which is different to the complainant’s version. The defence submitted that it would be unfair to admit this alleged preliminary complaint in light of the leading nature of the questions asked by AD.
  5. [146]
    Ultimately, the defence submits that the preliminary complaint evidence does not support the contention of penetration.
  6. [147]
    As to the complainant, it was submitted there were a number of inconsistencies in her version. Firstly, she was inconsistent in her version about the trip from Gin Gin to the party and originally there was no mention about going to JB’s house. She alleged the twins were present but they were not because JB’s evidence on this should be accepted. She was also inconsistent as to what she was wearing. Earlier in the 21AK hearing, she said she wore a dress over there and she changed later on because it was uncomfortable. She alleged she brought the sports gear to sleep in yet there were no plans to sleep there.
  7. [148]
    With respect to the alleged uncharged act, this needs to be proved beyond reasonable doubt. The complainant alleged she was pulled through the living room into the hallway and was trying to get away and he then pushed her into the bathroom. This was a violent undertaking and she resisted. But the reality is there were a large number of adults present and a large number of people were being escorted to the door. The incident is very unlikely to have occurred as described by the complainant.
  8. [149]
    It was further submitted that the complainant exaggerated the effects of this incident. She alleged that she suffered PTSD, depression and anxiety as a result. She claimed she did not understand what was happening at the time but this would not be believed. It was submitted that the flashback evidence as part of the PTSD is of concern. Indeed, the contents of Exhibit 8 allege the reason she did not raise anything prior to 2018 was because the defendant was a blood relative which is contrary to her evidence. It is noteworthy that the defence submits that between January 2016 and March 2018, she saw doctors a number of times but did not disclose any offending. Indeed, during that time there was no PTSD or anxiety.
  9. [150]
    The defence submits that the complainant displayed unusual side effects which go towards her credibility and reliability. It was submitted that the first migraine experience by the complainant was in March 2018. There were numerous migraines, blackouts and flashbacks and there were many visits to general practitioners and specialists. It was submitted that one should infer the complainant had some sort of neurological disorder. This causes credibility and reliability issues.
  10. [151]
    It was submitted ultimately by the defence, that there was no corroboration of her account and there were problems with her evidence. There are real doubts about digital penetration, and in the circumstances, the finding should be one of not guilty.

Crown submissions

  1. [152]
    The Crown did not oppose a Robinson direction but submitted there should be no reference to any neurological problem when the Robinson direction is to be given. In any event, the mother gave supporting evidence as to the migraine issues, and the complainant, even in the 93A statement, said she had been struggling at high school because of the assault.
  2. [153]
    The Crown conceded that the case rested on the complainant’s evidence but submitted that this Court can accept her to the required standard after considering her evidence with great care. At its core, her evidence had not changed, that is, the central allegation had not changed. Any inconsistencies were peripheral. The fact is the complainant did not want to accept that this happened. It happened when she was a child and she did not want a family member to do this and the Court should take into account she was only 13 at the time. The complainant explained the reason for delay in her re-examination.
  3. [154]
    As to the witnesses generally, there was a two and a half year delay from the date of the party until the date of complaint. Memories can be mistaken. Yes, there were some inconsistencies but the Crown submitted they were peripheral. This was a traumatic event. The complainant may have been groggy but she recalled the events in appropriate detail. It was submitted the defendant’s conduct was brazen, particularly when he dragged her to the hallway. The Crown, in a rhetorical question, asked if she made this up. Why should she make this aspect up, when one bears in mind a number of witnesses were around the house? The Crown submits this boosts her credibility. Yes it is true, the twins were not present and this must be incorrect but there had been other family gatherings and it is possible that issue was blurred into this one but again this was peripheral. JB’s evidence would not be rejected and JB did see a sheet over the complainant. The complainant has been consistent about the hands being down her pants.
  4. [155]
    The Court would not be troubled as to the timing of the complaint, bearing in mind that the complainant was only 13 at the time and the defendant was a cousin. It is understandable she made no earlier complaint. She was not in danger and she gave evidence she was not close to her mother. The timing of the complaint to Mr DL is in the backdrop of turbulence in her life at the time. It is also relevant that she named the defendant as the offender and at that time was not going through a turbulent time with him.[490]
  5. [156]
    The discussion with Mr DL occurred in the context that the complainant knew of the reporting obligation. This allegation did not arise as a result of a schoolyard rumour. It was next submitted that there was support for the complainant’s account. A blanket/sheet covered both of them. The mother saw this and JB saw the sheet on the complainant, although admittedly earlier.
  6. [157]
    Thirdly, the Crown submitted that there was brazen conduct by the defendant. Even on the defence evidence, there was opportunity for the offending to have occurred. Also, one should bear in mind that there was nothing unusual about two children heading to the DVD area so an adult would not likely have noticed this.
  7. [158]
    The complainant also said that she did not pull against the defendant until they got to the hallway.
  8. [159]
    Fourthly, there was the evidence as to the clothing. The Crown submitted the Court would accept the mother’s evidence on this. The mother found the photograph later on and this made her recall things. Exhibit 5 shows that this photo was taken on 30 January 2016, and importantly, the complainant exactly described the clothes in the 93A statement without the benefit of the photo. One should also bear in mind JB’s evidence that the complainant was not wearing anything inappropriate. On the other hand, the defence witnesses would have no particular reason to recall the clothing. The complainant and her mother had more reason to recall.
  9. [160]
    Fifthly, there is Mr DL’s evidence. It is true he mentioned a bed but this was his interpretation. He assumed it was a bed bearing in mind she mentioned sleep. The fact is there was a complaint to him about hands being down her pants which was consistent with her account. It is true that digital penetration was not mentioned at that point nor to AD in the first conversation but this is a sensitive issue and is understandable that more detail would come out later. As to the second conversation with AD, this should not be excluded. AD gave clear evidence that she asked non-leading questions and let the complainant give her account. She was not pushing for details. There was no evidence of pressure.
  10. [161]
    Sixthly, was the complainant’s demeanour. The Crown submitted she was an impressive witness and while she did have extreme reactions to the offence later on, not all persons are stoic individuals. This does not affect her credibility and reliability. There is no medical evidence justifying the conclusion that her reaction was neurological. The complainant did her best to give her account.
  11. [162]
    Seventhly, it was submitted the complainant’s evidence was logical and detailed. Although she was groggy, she felt the fingers being removed and her pants snap back. She gave details such as tripping on the blanket. It was a plausible account. The details made her account more reliable and bolstered her account.
  12. [163]
    Eighthly, the complainant was prepared to make concessions in her evidence, for example, at one stage she conceded that LF could have been there and that she may have sat next to the defendant at breakfast the next day. She also wondered whether she could have led the defendant on, which was a reasonable concession.
  13. [164]
    In conclusion, the Crown submitted that the complainant’s evidence should be accepted and a finding of guilt should occur.


  1. [165]
    By way of reply, Mr Kimmins pointed out in the pre-recording the complainant said she got the blanket. He also submitted the evidence from the complainant was that she was dragged through the living room. Additionally, he reminded me that SW gave evidence that she was wearing shorts and GW made the comment to the complainant about the legs being open.


Defence witnesses

  1. [166]
    I firstly wish to deal with the witnesses called by the defence. DF, SW and GW gave evidence that the complainant was wearing very short shorts. DF and SW described them as denim. DF specifically described them as being a pale denim.
  2. [167]
    On the other hand, the complainant denied she wore such shorts and said that she was wearing a sports top and sports black shorts. This evidence was confirmed by TD, the complainant’s mother. JB also gave evidence the complainant was not dressed in an untoward manner.
  3. [168]
    The complainant and TD had the opportunity of investigating this issue since the first trial. Importantly, they were able to obtain Exhibit 2, a photograph of the clothes worn by the complainant at Mount Tamborine which is immediately prior to them travelling to GW’s house on 30 January 2016. Also, Exhibit 5 was obtained which is the digital printout of the photo which shows it was photographed at 9:44am on 30 January 2016. I think it is highly unlikely that the complainant got changed into different clothing after going to Mount Tamborine. There would be no purpose for this. I think it is far more likely that her evidence, supported by the mother’s evidence, is correct. It is corroborated by the digital printout.
  4. [169]
    I also accept the Crown submission that the defence witnesses had no particular reason to remember minor details of events two and a half years prior, considering there had been other functions at the house. Also the photograph is consistent with the description of clothing given by the complainant in the pre-recording.[491]
  5. [170]
    Where there is a conflict between the evidence of SW, DF and GW on this question, I prefer the evidence of the complainant and her mother and JB.
  6. [171]
    Further, I considered that the evidence given by DF, SW and GW was inconsistent. The reason I say that is this. All of them effectively allege that there were concerns about the complainant and the defendant getting too close. DF alleged this is why he kept going in to check on them. Yet, when they were in a cuddling position on the couch, nothing was said to them. They were left to their own devices. I think this is inconsistent. I considered that the evidence given by the defence witnesses was exaggerated.
  7. [172]
    I therefore do not accept the evidence given by the defence witnesses. I put that to one side (as from matters I may later mention) and go back to consider the prosecution evidence in this case.
  8. [173]
    Regardless there was much opportunity for the offence to have occurred and for the witnesses not to have been in a position to see it.

Robinson direction

  1. [174]
    In this case, I warn myself that I should approach the complainant’s evidence with great care before relying on it.[492]  There are a number of reasons for this.
  2. [175]
    Firstly, her allegations are not corroborated.
  3. [176]
    Secondly, a complaint was not made until more than two years after the relevant event. 
  4. [177]
    Thirdly, there are some inconsistencies in her account which I will later discuss.
  5. [178]
    Fourthly, the complainant was groggy and half asleep when she was awoken. Also she said she did not understand what was going on.
  6. [179]
    The defence submitted that a fifth reason for the giving of a Robinson direction was the complainant’s evidence of the effects of this incident including PTSD, depressions and anxiety. Also, she suffered migraines, blackouts and flashbacks. The defence submitted I could infer a neurological disorder.
  7. [180]
    The Crown, on the other hand, submitted that some complainants are stoic but some are not. There is no medical evidence supporting the contention there is a neurological disorder. Also, the conditions mentioned by the complainant were supported by the mother.
  8. [181]
    I accept the Crown submissions. While the reactions may seem unusual, there is no evidence that they were caused by a neurological condition. But even if there was there was no medical evidence justifying the conclusion that the witness was somehow unreliable.     
  9. [182]
    Applying this warning (and the other legal directions to which I have referred) and carefully considering all of the evidence and submissions I accept the complainant’s evidence as to what occurred beyond reasonable doubt on the couch.
  10. [183]
    The following are my reasons for this. 
  11. [184]
    Firstly, I listened and observed the complainant very carefully. I thought she was genuinely trying to recall actual events. I believed her. I thought she was forthright in her evidence. I agree with the Crown submissions as to her demeanour. I considered she gave the evidence with an appropriate level of context and surrounding detail.  
  12. [185]
    Secondly, there was some support for her account. TD gave evidence that when she went into the lounge room, the complainant and the defendant were next to each other and under a sheet or blanket. The complainant was asleep but the defendant was awake. This is consistent with the complainant’s account. Next, JB also confirmed that the two of them were on the couch together and the complainant was asleep and not the defendant. She said she saw a sheet on the complainant.  Whilst JB saw the complainant’s head on the side of the couch, that most likely was at a different point in time. I preferred the evidence of the crown witnesses on the issue of the sheet.
  13. [186]
    Further, even the defence witnesses all supported the contention that the complainant and the defendant were very close together on the couch.
  14. [187]
    Thirdly, I thought it was relevant that at about 10:00pm, the complainant alleged that after the events in question, she ran outside to the pool area and then sat with the adults.  TD importantly gave evidence that the complainant went out to the pool area and then sat with her about one to two hours after she had seen the complainant asleep with the defendant. The complainant was very quiet at that stage. I also note that DF, in his evidence, conceded that at one point the complainant did come out and sit with her mother which is consistent also with the complainant’s evidence. JB, in cross-examination, also said the complainant came out later on and was quiet and would not socialise. It is my view that this supports the contention that something happened in the house which would cause the complainant to act in that manner.

Preliminary complaint evidence

  1. [188]
    Fourthly, I thought broadly speaking, the preliminary complaint evidence was broadly consistent and buttressed the complainant’s credibility.
  2. [189]
    TD, the mother, said that prior to going to the police, the complainant told her she had been sexually assaulted by the defendant.  Also, when they attended Dr Ali, the complainant told Dr Ali that she had been sexually assaulted and woke up with fingers in her underpants and she had been dragged to the toilet.
  3. [190]
    AD gave evidence that on the first occasion the complainant said that she was on a couch watching Die Hard and she woke up to the defendant’s hand in her pants.
  4. [191]
    I now turn to the second conversation with AD. The defence has asked for this to be excluded. The Crown opposes this.
  5. [192]
    On my view of the evidence, AD did not ask leading questions of the complainant in the car. She allowed the complainant to provide the details. I accept AD’s evidence as to why she wanted the details - she was going to provide a statement to the police to support the complainant.
  6. [193]
    The starting point under section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) is that evidence of how and when any preliminary complaint was made by the complainant about the commission of the alleged offence is admissible in evidence regardless of the when the complaint was made.
  7. [194]
    In my view, the evidence is of reasonable probative value and not far outweighed by its prejudicial effect.[493] I also do not consider it unfair to admit the evidence.[494] The defendant through his counsel has had the full rights of cross-examination. I do not exclude the evidence.
  8. [195]
    In the second conversation in her car before they went to the police, the complainant went into detail and said she had been sitting there, she fell asleep, woke up and felt his hand in her pants and fingers inside her. She jolted, stood up, tripped over a blanket, he dragged her to the bathroom, into the toilet, shut the door and tried to take her pants off. There is an inconsistency with him trying to take her pants off as compared to the complainant’s evidence that he tried to take his pants off. I thought that was a minor matter and could easily be a matter lost in translation. The complaint was otherwise entirely consistent with the complainant’s account.
  9. [196]
    Next, Mr DL gave evidence that the complainant said all of the adults were outside.  She was asleep on a bed and she awoke to her cousin’s hand down her pants.  He dragged her to the bathroom and attempted to have intercourse. She pushed him off and ran to the adults. Again, there was an inconsistency with the bed but again I consider that as a matter of something being lost in translation and could well be an assumption on his part, particularly bearing in mind the complainant said she had been asleep.
  10. [197]
    It is true that the penetration was not mentioned until the second conversation with AD but I accept the Crown submission that this was a young person discussing sensitive and personal matters about a family member - her cousin. One can understand how the full details only emerged in the lengthier conversation with AD in the car.
  11. [198]
    Also on this topic, I also accept the Crown submission as to the delay in making the complaint. The complainant said she did not make an earlier complaint because she was scared she would not be believed. The fact is sometimes it takes some time to for a young person to enough gain courage before they make complaint of sexual offences.   
  12. [199]
    Broadly, I thought that the preliminary complainant evidence was generally consistent with the complainant’s account of what happened here.


  1. [200]
    It is true there were some inconsistencies in the evidence with which I will deal.
  2. [201]
    Firstly, the complainant thought that JB’s twins were there, but on the evidence, I think that is unlikely.  However, I thought that was a mere peripheral detail. The fact is she had been to the house on previous occasions and the twins had been there and there could have been the blurring of memory on this point. The important fact is what happened to her on the couch. 
  3. [202]
    Secondly, the defence relied on inconsistencies concerning the trip from Gin Gin. I thought this was readily explained by her memory being jogged after seeing Exhibit 2.
  4. [203]
    Thirdly, the defence relied on inconsistencies as to what the complainant was wearing. I dealt with this earlier in the reasons. Again, the memory was jogged by Exhibit 2.
  5. [204]
    Fourthly, the defence relied on the complainant’s mental health. It was submitted the migraines, flashbacks and blackouts made her unreliable. I do not agree. Some people are stoic, others are not. There was no medical evidence lead which causes me to doubt the complainant’s account. Also, her evidence in this regard was supported by the mother and Exhibit 7.
  6. [205]
    Fifthly, the defence relied on the complainant’s evidence that she did not fully understand what was going on at the time. I accepted her evidence on this point. She was only 13 at the time. She was not mature. It was only later that she fully realised the importance of what happened to her.   

TD and JB            

  1. [206]
    As to TD, I accept her evidence. I also thought she was telling the truth. Any inconsistency about the trip to GW’s house and the clothing is explained by her memory being jogged by Exhibit 2. She was no doubt affected by alcohol but she not “blind” according to JB’s evidence.
  2. [207]
    I also accept JB’s evidence. I also thought she was telling the truth. She did not try and dovetail in with the Crown case as to how the complainant was positioned on the lounge.


  1. [208]
    I find that the defendant did say “I’m sorry I guess”. However, I cannot be satisfied it related to the charged act as distinct from the discreditable conduct so I put it to one side. I do not rely on it towards proof of guilt. 

Discreditable conduct 

  1. [209]
    Next, I find beyond reasonable doubt the discreditable conduct occurred. As the complainant said she only realised what was happening when she got to the DVD area. One must bear in mind she was only a 13 year old child at the time. When pressed, she did not allege she was fully dragged across the kitchen. I do find the defendant took her to the bathroom and locked her in the toilet and started to take his pants off.  I find this happened beyond reasonable doubt and showed a sexual interest by the defendant in the complainant and shows it is more likely he committed the charged act.
  2. [210]
    As the Crown submitted there was no particular reason for people at the party to notice the two children go to the DVD area. Also, at a party such as this, many of the adults would have been drinking and more intent on socialising with each other.


  1. [211]
    As to other inconsistencies, I considered they were peripheral. Ultimately, I thought the complainant was entirely consistent as across the 93A statement, the s 21AK hearing and the evidence before me as to what occurred. She was also broadly consistent as across complaints made to the preliminary complaint witnesses.
  2. [212]
    I find beyond reasonable doubt that whilst they were on the couch in the evening at GW’s house on 30 January 2016, the complainant was asleep and her head was on the defendant’s shoulder. I find beyond reasonable doubt that without the complainant’s consent, he put his hand into her pants and inserted his finger or fingers into her vagina as she described. I therefore find that the act relied on by the prosecution occurred.


  1. [213]
    In all of the circumstances, I am satisfied beyond reasonable doubt that the crown has proved the elements of the offence
  2. [214]
    I find the defendant guilty of rape.



[1]Section 615B(1) of the Criminal Code.

[2]Section 615B(3) of the Criminal Code.

[3]Section 615C(3) of the Criminal Code.

[4][1998] HCA 68; (1998) 197 CLR 250 at [28].

[5][2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334.

[6]Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334.

[7]Dookheea v R [2017] HCA 36; (2017) 262 CLR 402.

[8]HML v R [2008] HCA 16; (2008) 235 CLR 502 at [512]; Bauer v R [2018] HCA 40; (2018) 92 ALJR 846 at [48]-[49].

[9]Burns v R [1975] HCA 21; (1975) 132 CLR 258 at 261-262.

[10]R v LSS [2000] 1 Qd R 546; [1998] QCA 303 at [1] and [19].

[11]R v RH [2005] 1 Qd R 180 at [23].

[12]R v Rutherford [2004] QCA 481.

[13]R v Coss [2016] QCA 44 at [22].

[14]R v Van der Zyden [2012] QCA 89; [2012] 2 Qd R 568; 222 A Crim R 463; 261 FLR 419 at [32].

[15]Section 21AW of the Evidence Act 1977 (Qld).

[16]Butera v DPP (1987) 164 CLR 180 at 188; [1987] HCA 58.

[17]Exhibit 1.

[18]Transcript page 2.25-26.

[19]Transcript page 2.32-33.

[20]Transcript page 2.37-50.

[21]Transcript page 2.54-56.

[22]Transcript page 2.57.

[23]Transcript page 3.1-5.

[24]Transcript page 3.13-21.

[25]Transcript page 3.26-33.

[26]Transcript page 3.33-36.

[27]Transcript page 3.37-38.

[28]Transcript page 5.50-56.

[29]Transcript page 3.56-57.

[30]Transcript page 3.57.

[31]Transcript page 4.14.

[32]Transcript page 4.18.

[33]Transcript page 4.22-24.

[34]Transcript page 4.25-41.

[35]Transcript page 5.22.

[36]Transcript page 6.25.

[37]Transcript page 8.21.

[38]Transcript page 8.22.

[39]Transcript page 8.40.

[40]Transcript page 8.42.

[41]Transcript page 10.56.

[42]Transcript page 11.8-9.

[43]Transcript page 11.41-42.

[44]Transcript page 11.43-44.

[45]Transcript page 12.13-20.

[46]Transcript page 12.24-25.

[47]Transcript page 13.4-41.

[48]Transcript page 14.32-33.

[49]Transcript page 15.6-41.

[50]Transcript page 15.54-56.

[51]Transcript page 16.48-50.

[52]Transcript page 17.21.

[53]Transcript page 18.20-21.

[54]Transcript page 18.22-27.

[55]Transcript page 19.45-46.

[56]Transcript page 20.9.

[57]Transcript page 20.31-34.

[58]Transcript page 21.31-34

[59]Transcript page 22.1-2.

[60]Transcript page 22.34-46.

[61]Pre-recording day 1 page 6.1-3.

[62]Pre-recording day 1 page 6.10.

[63]Pre-recording day 1 page 6.33.

[64]Pre-recording day 1 page 7.31.

[65]Pre-recording day 1 page 7.38.

[66]Pre-recording day 1 page 8.38-40.

[67]Pre-recording day 1 page 9.5-8.

[68]Pre-recording day 1 page 9.17-19.

[69]Pre-recording day 1 page 9.33-36.

[70]Pre-recording day 1 page 10.9.

[71]Pre-recording day 1 page 11.3.

[72]Pre-recording day 1 page 12.24-25.

[73]Pre-recording day 1 page 13.20-27.

[74]Pre-recording day 1 page 13.29-37.

[75]Pre-recording day 1 page 14.11.

[76]Pre-recording day 1 page 14.13-16.

[77]Pre-recording day 1 page 14.28-29.

[78]Pre-recording day 1 page 14.39-41.

[79]Pre-recording day 1 page 15.20.

[80]Pre-recording day 1 page 15.24-25.

[81]Pre-recording day 1 page 15.29-31.

[82]Pre-recording day 1 page 15.37-43.

[83]Pre-recording day 1 page 16.21-23.

[84]Pre-recording day 1 page 16.27-28.

[85]Pre-recording day 1 page 16.34-45.

[86]Pre-recording day 1 page 17.5-6.

[87]Pre-recording day 1 page 17.13-17.

[88]Pre-recording day 1 page 17.39-41.

[89]Pre-recording day 1 page 18.18-19.

[90]Pre-recording day 1 page 18.46-47.

[91]Pre-recording day 1 page 19.13.

[92]Pre-recording day 1 page 19.40-43.

[93]Pre-recording day 1 page 21.19-21.

[94]Pre-recording day 1 page 21.23-33.

[95]Pre-recording day 1 page 22.3-9.

[96]Pre-recording day 1 page 22.26-27.

[97]Pre-recording day 1 page 22.28.

[98]Pre-recording day 1 page 22.39.

[99]Pre-recording day 1 page 23.9-10.

[100]Pre-recording day 1 page 23.25-26.

[101]Pre-recording day 1 page 23.33-35.

[102]Pre-recording day 1 page 24.1-3.

[103]Pre-recording day 1 page 24.35.

[104]Pre-recording day 1 page 24.37-39.

[105]Pre-recording day 1 page 25.10-11.

[106]Pre-recording day 1 page 25.20-24.

[107]Pre-recording day 1 page 25.29-37.

[108]Pre-recording day 1 page 25.39.

[109]Pre-recording day 1 page 26.1-8.

[110]Transcript day 1 page 25.38-39.

[111]Transcript day 1 page 26.41-42.

[112]Transcript day 1 page 30.13-16.

[113]Transcript day 1 page 30.21.

[114]Transcript day 1 page 30.44-45.

[115]Transcript day 1 page 31.4-6.

[116]Transcript day 1 page 31.12-30.

[117]Transcript day 1 page 31.36-41.

[118]Transcript day 1 page 33.11-12.

[119]Transcript day 1 page 33.17-18.

[120]Transcript day 1 page 33.25-26.

[121]Transcript day 1 page 33.33-34.

[122]Transcript day 1 page 33.42.

[123]Transcript day 1 page 34.35.

[124]Transcript day 1 page 36.5-23.

[125]Transcript day 1 page 36.36-37.

[126]Transcript day 1 pages 36.46-37.1.

[127]Transcript day 1 page 37.3-4.

[128]Transcript day 1 page 37.8-11.

[129]Transcript day 1 page 37.39-41.

[130]Transcript day 1 page 38.36-37.

[131]Transcript day 1 page 39.42-45.

[132]Transcript day 1 page 40.8.

[133]Transcript day 1 page 40.20-22.

[134]Transcript day 1 page 40.38-44.

[135]Transcript day 1 page 41.12-13.

[136]Transcript day 1 page 41.9-10.

[137]Transcript day 1 page 41.23-25.

[138]Transcript day 1 page 41.31-33.

[139]Transcript day 1 page 42.1-2

[140]Transcript day 1 page 42.7-8.

[141]Transcript day 1 page 42.19-21.

[142]Transcript day 1 page 42.25-26.

[143]Transcript day 1 page 42.34-35.

[144]Transcript day 1 pages 42.40-43.1.

[145]Transcript day 1 page 43.13.

[146]Transcript day 1 page 43.15-28.

[147]Transcript day 1 page 43.37-45.

[148]Transcript day 1 page 44.1-2.

[149]Transcript day 1 page 44.4-7.

[150]Transcript day 1 page 44.9-10.

[151]Transcript day 1 page 44.15.

[152]Transcript day 1 page 44.20-22.

[153]Transcript day 1 page 44.24.

[154]Transcript day 1 page 44.26-35.

[155]Transcript day 1 page 44.37-42.

[156]Transcript day 1 pages 44.46-45.2.

[157]Transcript day 1 page 45.16-17.

[158]Transcript day 1 page 45.23.

[159]Transcript day 1 page 45.39-40.

[160]Transcript day 1 page46.6-7.

[161]Transcript day 1 page 46.22.

[162]Transcript day 1 page 46.44-45.

[163]Transcript day 1 page 47.7-9.

[164]Transcript day 1 page 47.13-14.

[165]Transcript day 1 page 47.19.

[166]Transcript day 1 page 47.16-17.

[167]Transcript day 1 page 47.31-32.

[168]Transcript day 1 pages 47.44-48.10.

[169]Transcript day 1 page 49.1.

[170]Transcript day 1 page 49.8-9.

[171]Transcript day 1 page 49.17-22.

[172]Transcript day 1 page 49.29.

[173]Transcript day 1 page 49.36-37.

[174]Transcript day 1 page 50.1-12.

[175]Transcript day 1 page 50.20-37.

[176]Transcript day 1 page 50.39-45.

[177]Transcript day 1 page 51.7.

[178]Transcript day 1 page 52.

[179]Transcript day 1 page 53.1-5.

[180]Transcript day 1 page 53.11-18.

[181]Transcript day 1 page 53.39.

[182]Transcript day 1 page 53.41-42.

[183]Transcript day 1 page 54.1-3.

[184]Transcript day 1 page 54.21-25.

[185]Transcript day 1 page 55.1-4.

[186]Transcript day 1 pages 55-56.

[187]Transcript day 1 page 58-10-11.

[188]Transcript day 1 page 58.28-29.

[189]Transcript day 1 pages 58.46-59.1.

[190]Transcript day 1 page 59.7.

[191]Transcript day 1 page 59.12-13.

[192]Transcript day 1 page 59.17.

[193]Transcript day 1 page 59.24-26.

[194]Transcript day 1 page 59.28.

[195]Transcript day 1 page 59.39-60.2.

[196]Transcript day 2 page 8.21-22.

[197]Transcript day 2 page 9.3-6.

[198]Transcript day 2 page 9.12-13.

[199]Transcript day 2 pages 9-10.

[200]Transcript day 2 page 11.20.

[201]Transcript day 2 page 11.25.

[202]Transcript day 2 page 11.28.

[203]Transcript day 2 page 11.31.

[204]Transcript day 2 page 12.9-12.

[205]Transcript day 2 page 14.36.

[206]Transcript day 2 page 14.33-34.

[207]Transcript day 2 page 14. 40-41.

[208]Transcript day 2 page 15.3-13.

[209]Transcript day 2 page 16.7-11.

[210]Transcript day 2 page 17.47.

[211]Transcript day 2 page 18.14.

[212]Transcript day 2 page 21.3-18.

[213]Transcript day 2 page 21.31-34.

[214]Transcript day 2 page 21.43.

[215]Transcript day 2 page 21.45.

[216]Transcript day 2 page 22.14-37.

[217]Transcript day 2 page 23.1-9.

[218]Transcript day 2 page 23.11-13.

[219]Transcript day 2 page 23.31-46.

[220]Transcript day 2 page 24.24-29.

[221]Transcript day 2 page 24.31-32.

[222]Transcript day 2 page 24.36.

[223]Transcript day 2 page 24.38-39.

[224]Transcript day 2 page 25.3-20.

[225]Transcript day 2 page 26.1-7.

[226]Transcript day 2 page 26.17-18.

[227]Transcript day 2 page 26.26-31.

[228]Transcript day 2 pages 26.39-27.16.

[229]Transcript day 2 page 27.33-36.

[230]Transcript day 2 page 27.33-37.

[231]Transcript day 2 page 28.22-23.

[232]Transcript day 2 page 28.27-28.

[233]Transcript day 2 page 30.32.

[234]Transcript day 2 page 30.42.

[235]Transcript day 2 pages 30.44-31.18.

[236]Transcript day 2 page 31.20.

[237]Transcript day 2 page 31.33-35.

[238]Transcript day 2 page 31.38.

[239]Transcript day 2 page 31.40-41.

[240]Transcript day 2 page 32.3-4.

[241]Transcript day 2 page 32.21-22.

[242]Transcript day 2 page 32.38-44.

[243]Transcript day 2 page 33.10-11.

[244]Transcript day 2 page 33.13-27.

[245]Transcript day 2 page 33.30.

[246]Transcript day 2 page 33.41.

[247]Transcript day 2 page 34.30-31.

[248]Transcript day 2 page 34.37-38.

[249]Transcript day 2 page 35.29.

[250]Transcript day 2 page 35.36.

[251]Transcript day 2 page 37.10-13.

[252]Transcript day 2 page 38.

[253]Transcript day 2 pages 38.45-39.2.

[254]Transcript day 2 page 39.42.

[255]Transcript day 2 page 41.10-14.

[256]Transcript day 2 page 41.32.

[257]Transcript day 2 page 42.4.

[258]Transcript day 2 page 42.6-8.

[259]Transcript day 2 page 42.17.

[260]Transcript day 2 page 42.27-35.

[261]Transcript day 2 page 43.1-19.

[262]Transcript day 2 page 43.38-39.

[263]Transcript day 2 page 43.44-44.2.

[264]Transcript day 2 page 44.25-35.

[265]Exhibit 8.

[266]Transcript day 2 page 45.32.

[267]Transcript day 2 page 27.27.

[268]Transcript day 2 page 50.42.

[269]Transcript day 2 page 51.23-39.

[270]Transcript day 2 page 52.5.

[271]Transcript day 2 page 52.10.

[272]Transcript day 2 page 52.26-29.

[273]Transcript day 2 page 52.41-42.

[274]Transcript day 2 page 53.1-2.

[275]Transcript day 2 page 53.8-9.

[276]Transcript day 2 page 53.16-18.

[277]Transcript day 2 page 53.30-31.

[278]Transcript day 2 page 53.34-35.

[279]Transcript day 2 page 54.15.

[280]Transcript day 2 page 55.41-42.

[281]Transcript day 2 page 56.3-5.

[282]Transcript day 2 page 56.10-13.

[283]Transcript day 2 page 59.32-34.

[284]Transcript day 2 page 60.40-43.

[285]Transcript day 2 page 61.20.

[286]Transcript day 2 page 62.14-29.

[287]Transcript day 2 page 62.37.

[288]Transcript day 2 page 63.44-64.8.

[289]Transcript day 2 page 63.30-34.

[290]Transcript day 2 page 63.36-37.

[291]Transcript day 2 page 63.39-40.

[292]Transcript day 2 page 64.8-9.

[293]Transcript day 2 page 64.42-43.

[294]Transcript day 2 page 65.11-14.

[295]Transcript day 2 page 65.24-38.

[296]Transcript day 2 page 66.5-6.

[297]Transcript day 2 page 66.36.

[298]Transcript day 2 page 67.1-11.

[299]Transcript day 2 page 67.26-36.

[300]Transcript day 2 page 67.41.

[301]Transcript day 2 page 68.4.

[302]Transcript day 2 pages 68.13-69.11.

[303]Transcript day 2 page 73.44.

[304]Transcript day 2 page 74.1-3.

[305]Transcript day 2 page 74.13.

[306]Transcript day 2 page 74.34.

[307]Transcript day 2 page 74.44.

[308]Transcript day 2 page 75.13-15.

[309]Transcript day 2 pages 75.45-76.1.

[310]Transcript day 2 page 76.1-2.

[311]Transcript day 2 page 76.4-7.

[312]Transcript day 2 page 76.8-9.

[313]Transcript day 2 page 76.13-15.

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[315]Transcript day 2 page 77.10-14.

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[317]Transcript day 2 page 77.36-38.

[318]Transcript day 2 page 77.42-43.

[319]Transcript day 2 page 80.21-23.

[320]Transcript day 2 page 80.3-8.

[321]Transcript day 2 page 80.8.

[322]Transcript day 2 page 80.21-23.

[323]Transcript day 2 page 80.28-33.

[324]Transcript day 2 page 80.38.

[325]Transcript day 2 page 80.40-41.

[326]Transcript day 2 page 81.8-9.

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[328]Transcript day 2 page 81.33.

[329]Transcript day 2 page 81.35-37.

[330]Transcript day 2 page 84.25-27.

[331]Transcript day 2 page 85.8-9.

[332]Transcript day 2 page 85.37-39.

[333]Transcript day 2 page 85.39-41.

[334]Transcript day 2 pages 85.45-86-9.

[335]Transcript day 2 page 86.13-19.

[336]Transcript day 2 page 86.29.

[337]Transcript day 2 page 86.31-32.

[338]Transcript day 2 page 87.2-9.

[339]Transcript day 2 pages 87.39-88.2.

[340]Transcript day 2 page 88.37.

[341]Transcript day 2 page 88.42-43.

[342]Transcript day 2 page 89.1-2.

[343]Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 at [34], [51] and [67]. 

[344]Exhibit 10.

[345]Exhibit 11.

[346]R v E (1995) 89 A Crim R 325 at 330.

[347]R v Armstrong [2006] QCA 158 at [34].

[348]Transcript day 2 page 92.35-36.

[349]Transcript day 2 page 92.38-39.

[350]Transcript day 2 page 92.43-44.

[351]Transcript day 2 page 93.1-2.

[352]Transcript day 2 page 93.4-5.

[353]Transcript day 2 page 93.7-11.

[354]Transcript day 2 page 93.17-18.

[355]Transcript day 2 page 93.23-25.

[356]Transcript day 2 page 93.34-48.

[357]Transcript day 2 page 95.38-40.

[358]Transcript day 2 page 95.46-47.

[359]Transcript day 2 page 96.6-10.

[360]Transcript day 2 page 96.16-17.

[361]Transcript day 2 page 96.23-45.

[362]Transcript day 2 page 97.18-19.

[363]Transcript day 2 page 97.21-22.

[364]Transcript day 2 page 97.26-30.

[365]Transcript day 2 page 97.32-36.

[366]Transcript day 2 page 98.4.

[367]Transcript day 2 page 98.20-22.

[368]Transcript day 2 page 98.25-28.

[369]Transcript day 2 page 99.22-25.

[370]Transcript day 2 page 99.27-30.

[371]Transcript day 2 page 99.37-41.

[372]Transcript day 2 page 100.1-2.

[373]Transcript day 2 page 100.14.

[374]Transcript day 2 page 100.16-41.

[375]Transcript day 2 pages 100.45-101.3.

[376]Transcript day 2 page 101.18.

[377]Transcript day 2 page 101.40-102.4.

[378]Transcript day 2 page 102/6-7.

[379]Transcript day 2 page 102.25.

[380]Transcript day 2 page 102.39-41.

[381]Transcript day 2 page 103.1-5.

[382]Transcript day 2 page 103.15-27.

[383]Transcript day 2 page 103.33.

[384]Transcript day 2 page 103.35-37.

[385]Transcript day 2 page 103.3-5.

[386]Transcript day 2 page 104.8-10.

[387]Transcript day 2 page 104.36-39.

[388]Transcript day 2 page 104.43.

[389]Transcript day 2 page 105.4.

[390]Transcript day 2 page 105.12-17.

[391]Transcript day 2 page 105.23-30.

[392]Transcript day 2 page 105.34.

[393]Transcript day 2 page 105.42-44.

[394]Transcript day 2 page 106.5.

[395]Transcript day 2 page 106.20-21.

[396]Transcript day 2 page 106.25-26.

[397]Transcript day 2 page 106.36-38.

[398]Transcript day 2 page 106.40-45.

[399]Transcript day 2 page 107.5-8.

[400]Transcript day 2 page 107.12-17.

[401]Transcript day 2 page 107.19-20.

[402]Transcript day 2 page 107.22.

[403]Transcript day 2 page 107.30-31.

[404]Transcript day 2 page 107.35.

[405]Transcript day 2 page 107.40.

[406]Transcript day 2 pages 107.42-108.15.

[407]Transcript day 2 page 108.25.

[408]Transcript day 2 page 108.27.

[409]Transcript day 2 page 108.35.

[410]Transcript day 2 page 109.22.

[411]Transcript day 2 page 109.29-35.

[412]Transcript day 2 page 109.45-46.

[413]Transcript day 2 page 110.10-29.

[414]Transcript day 2 page 110.34-48.

[415]Transcript day 2 page 110.40-42.

[416]Transcript day 2 page 110.44-46.

[417]Transcript day 2 page 111.10-11.

[418]Transcript day 2 page 111.13-17.

[419]Transcript day 2 page 111.25-26.

[420]Transcript day 2 page 111.34-37.

[421]Transcript day 2 pages 111.42-112.10.

[422]Transcript day 2 page 112.28-32.

[423]Transcript day 2 page 113.2-4.

[424]Transcript day 2 page 113.15-16.

[425]Transcript day 2 page 113.20-22.

[426]Transcript day 2 page 113.37-114.2.

[427]Transcript day 2 page 114.8-9.

[428]Transcript day 2 page 114.34-39.

[429]Transcript day 2 page 114.41.

[430]Transcript day 2 page 114.45-46.

[431]Transcript day 2 page 115.1-8.

[432]Transcript day 2 page 115.13-14.

[433]Transcript first trial day 2 page 5.8-9.

[434]Transcript first trial day 2 page 5.11-12.

[435]Transcript first trial day 2 page 5.18-29.

[436]Transcript first trial day 2 page 5.31-33.

[437]Transcript first trial day 2 page 5.36-40.

[438]Transcript first trial day 2 page 5.42-44.

[439]Transcript first trial day 2 page 6.5-8.

[440]Transcript first trial day 2 page 6.22-26.

[441]Transcript first trial day 2 page 6.2-3.

[442]Transcript first trial day 2 page 6.25-28.

[443]Transcript first trial day 2 page 6.31-32.

[444]Transcript first trial day 2 page 6.38-41.

[445]Transcript first trial day 2 page 6.40-41.

[446]Transcript first trial day 2 page 7.1-2.

[447]Transcript first trial day 2 page 7.8.

[448]Transcript first trial day 2 page 7.17-18.

[449]Transcript first trial day 2 page 7.22-25.

[450]Transcript first trial day 2 page 7.30-31.

[451]Transcript first trial day 2 page 7.31-32.

[452]Transcript first trial day 2 page 7.45-47.

[453]Transcript first trial day 2 page 8.18.

[454]Transcript first trial day 2 page 8.29-30.

[455]Transcript first trial day 2 page 8.41-42.

[456]Transcript first trial day 2 page 8.47.

[457]Transcript first trial day 2 page 9.6-17.

[458]Transcript first trial day 2 page 9.20-28.

[459]Transcript first trial day 2 page 9.40-46.

[460]Transcript first trial day 2 page 10.13-14.

[461]Transcript first trial day 2 page 10.20.

[462]Transcript first trial day 2 page 13.3.

[463]Transcript first trial day 2 page 13.5-6.

[464]Transcript first trial day 2 page 13.9-11.

[465]Transcript first trial day 2 page 13.16-19.

[466]Transcript first trial day 2 page 13.25-29.

[467]Transcript first trial day 2 page 14.7.

[468]Transcript first trial day 2 page 14.12.

[469]Transcript first trial day 2 page 14.25-29.

[470]Transcript first trial day 2 page 14.46-27.

[471]Transcript first trial day 2 page 15.1-2.

[472]Transcript first trial day 2 page 15.14-15.

[473]Transcript first trial day 2 page 15.34-39.

[474]Transcript first trial day 2 page 15.42.

[475]Transcript first trial day 2 page 16.13.

[476]Transcript first trial day 2 page 16.41-42.

[477]Transcript first trial day 2 page 17.13-20.

[478]Transcript first trial day 2 page 17.25-27.

[479]Transcript first trial day 2 page 17.45-46.

[480]Transcript first trial day 2 page 18.3-5.

[481]Transcript first trial day 2 page 18.12.

[482]Transcript first trial day 2 page 18.24.

[483]Transcript first trial day 2 page 18.27-29.

[484]Transcript first trial day 2 page 18.34.

[485]Transcript first trial day 2 page 19.3-6.

[486]Transcript first trial day 2 page 19.8-9.

[487]Transcript first trial day 2 page 20.5-6.

[488]Transcript first trial day 2 page 20.41-44.

[489]I agree with this submission. It is narrative evidence only. There was no disclosure of the charged act and is therefore not preliminary complaint evidence- see R v NM [2012] QCA173; [2012] 1 Qd R 374.

[490]I do bear in mind I should be very careful not to reverse any onus on to the defendant as regards this submission.

[491]Pre-recording page 14.11.

[492]Robinson v R (1999) 197 CLR 162; [1997] HCA 42.

[493]R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239.

[494]Section 130 of the Evidence Act 1977 (Qld).


Editorial Notes

  • Published Case Name:

    R v FAX

  • Shortened Case Name:

    R v FAX

  • MNC:

    [2020] QCHC 30

  • Judge(s):

    Smith DCJA

  • Date:

    21 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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