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Queensland Judgments
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  • Unreported Judgment

R v PNX

 

[2020] QCHC 32

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v PNX [2020] QChC 32

PARTIES:

R

v

PNX

(Defendant)

FILE NO:

043/20

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Childrens Court of Queensland at Ipswich

DELIVERED ON:

30 October 2020

DELIVERED AT:

Ipswich

HEARING DATE:

14, 15 October 2020 at Toowoomba and 29 October 2020 at Ipswich

JUDGE:

Lynch QC DCJ

VERDICT:

Count 1: Not guilty

Count 2: Not guilty

Count 3: Not guilty

ORDER:

PNX is formally discharged in respect of indictment number 43 of 2020.

CATCHWORDS:

CRIMINAL LAW – SEXUAL OFFENCES – TRIAL HAD BEFORE A JUDGE WITHOUT JURY – where the defendant is charged with two counts of rape and one count of sexual assault – where the trial proceeded before a judge alone without a jury – whether the Crown has proved beyond reasonable doubt that the defendant raped the complainant – whether the Crown has proved beyond reasonable doubt that the defendant sexually assaulted the complainant – where the credit of the complainant is in issue – whether the lie of the defendant was told out of a consciousness of guilt – whether a statement by the defendant contained in a text message was an admission or confession of guilt

LEGISLATION:

Youth Justice Act 1992 (Qld), s 103

Evidence Act 1977 (Qld), s 21AK, s 93A

Criminal Code 1899 (Qld), s 6, s 348, s 349, s 352, s 644

CASES:

R v Caulfield [2012] QCA 204

COUNSEL:

M Le Grand for the Crown

D Jones for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Legal Aid Queensland for the Defendant

Proceedings

  1. [1]
    PNX is charged before the Children’s Court of Queensland at Ipswich, on indictment number 43 of 2020, with the following offences:

Count 1:That on a date unknown between the thirty-first day of May, 2018 and  the ninth day of August, 2018 at Highfields in the State of Queensland, PNX raped RTC.

Count 2:That on the third day of August, 2018 at Highfields in the State of Queensland, PNX raped RTC.

Count 3:That on the eighth day of August, 2018 at Highfields in the State of Queensland, PNX unlawfully and indecently assaulted RTC.

  1. [2]
    The indictment was presented in Toowoomba on 4 June 2020. On 13 August 2020, an election was made pursuant to s 103 of the Youth Justice Act 1992, for trial of these charges before a judge sitting without a jury. When arraigned before me in Toowoomba on 14 October 2020, the defendant entered pleas of not guilty to each count. As a consequence, the trial commenced before me, sitting without a jury. Evidence was taken in Toowoomba on 14 and 15 October 2020, and the trial was then adjourned to 29 October 2020 at Ipswich. The evidence and counsel’s submissions were completed on that day.
  1. [3]
    I have reached the conclusion PNX should be found not guilty of all counts. These are my reasons.

Evidence

  1. [4]
    In all, the evidence of 8 witnesses was admitted. Five of the witnesses were children and their evidence was received via the recordings made pursuant to ss 93A and 21AK of the Evidence Act 1977. In addition, the following exhibits were admitted:
  1. Recording of police interview with RTC of 9/8/2018 (s 93A)
  2. Transcript of Exhibit 1
  3. 2 x photographs of jacket
  1. Drawing of shopping centre and bush at Highfields
  2. Drawing of bush track
  3. Text messages
  4. Recording of evidence of RTC (s 21AK)
  5. Recording of police interview with YTR of 28/5/2019 (s 93A)
  6. Transcript of Exhibit 8
  7. Recording of police interview with BQS of 31/3/2020 (s 93A)
  8. Transcript of Exhibit 10
  9. Recording of police interview with JQX of 6/4/2020 (s 93A)
  10. Transcript of Exhibit 12
  11. Recording of police interview with HXD of 11/5/2019 (s 93A)
  12. Transcript of Exhibit 14
  13. Audio recording of interview between police and defendant of 11/8/2018
  14. Transcript of Exhibit 16
  15. Admission
  16. Written submissions of prosecution
  17. Written submissions of defendant
  1. [5]
    The evidence of the witnesses included the following accounts.

RTC

  1. [6]
    RTC’s evidence was captured in the recorded police interview on 9 August 2018 (Ex 1), and the recording of her evidence taken on 14 October 2020 (Ex 7). RTC’s date of birth is 18/6/2002; she was aged 16 when interviewed by police and aged 18 when she gave evidence at the trial. Two police officers were present for the interview at Toowoomba Police Station. RTC gave evidence from a room remote from the court room but connected to the court room via audio visual link. A support person was present in the room with RTC when she gave evidence. The evidence was given live and recorded as it occurred. All non-essential persons were excluded from the court room whilst Exhibit 1 was played and when RTC gave evidence. The defendant remained in the court room whilst Exhibit 1 was played and when RTC gave evidence, but was positioned so that RTC could not see or hear him at all.
  1. [7]
    RTC’s description of events largely comes from Exhibit 1. In that account RTC described the following. She was in grade 9 at school at the time of the alleged offences. She met the defendant about 3 months prior to her interview with police. He was a student in grade 11 and she would see him at school every day. For about the first month she and the defendant were just friends but then started dating. She said the defendant then “got more sexual with me”.
  1. [8]
    RTC described the first event in time occurred one day at school. She received a text message from the defendant asking to meet him at K block, so that he could “finger me because he was horny”. She replied “no” but he insisted “you are going to do it because I am horny”. She protested that they were at school, on school property, and in school uniform. She said they met up, went around the side of the building, the defendant asked if he could finger her and she said “no”. The defendant then put his left hand down her pants, inserted two fingers into her vagina, and moved them around. The defendant’s right arm was around her so that she couldn’t move. She told him to stop and she removed his hand. RTC then went back to her friend HXD but did not tell her what occurred. This incident was particularised by the prosecution as the basis of count 1.
  1. [9]
    RTC said that after that incident, she stopped dating the defendant and they stopped talking for about a month. However, from 1 August 2018, the defendant started contacting her again, saying he missed her and still loved her. Before school on Thursday 2 August, the defendant said he missed her, still loved her, and wanted her back. She rejected the defendant saying “I am not doing this”, but the defendant was “begging” her and threatened to kill himself. At first break the defendant told her he was sorry for hurting her but wanted her back and needed her, but she again rejected him. She refused to sit with him at second break. That night the defendant messaged her asking that she call him. She did so and the defendant told her “Look I am sorry, I want you back. I will prove to you how much I want you.” She replied “… no just stop. I can’t come back and be your girlfriend, I just want to be alone and single and I don’t want to date you.” The defendant said “For fucks sake … please let me be your boyfriend.” RTC then turned off her phone so that the defendant could not continue to message her.
  1. [10]
    The next day, 3 August 2018, RTC turned her phone on around 7.00am and received a message from the defendant asking if she would walk to school with him from a nearby shopping centre. RTC had her grandfather drop her off at the shopping centre where she met up with the defendant at about 8.10am. They then walked towards school along a track that went through some bush land. The defendant said to RTC “Let’s fuck”, she replied “No”, and the defendant said “I want to fuck you”, and “I want to lose my virginity to you”. RTC replied she did not want to have sex with the defendant. The defendant also told her he had made a bet with his best mate to see who was first to lose their virginity. The defendant led RTC off the main track and put her “gently” on her back on the ground and at first was “dry humping” her. She was telling him “stop” and “no”, he was saying “let me do it” and the defendant pulled her pants down, pulled his pants down, and inserted his penis into her vagina. She was saying “no”, “stop, it hurts” and “stop, no stop”. The defendant moved his penis in and out and did not stop but continued to have sex with her, with his penis about half inside her, until he withdrew and ejaculated on her clothing and the ground. Some of the ejaculate landed on her school jacket and some on her underwear. RTC told the defendant “You got it on my jumper. … What am I supposed to tell people?” and the defendant replied “Just tell them it’s toothpaste.” RTC then walked to school with the defendant and saw her friend HXD and told her what happened. RTC said she was then having her period so that her menstrual pad was inside her underwear, she was not using any birth control, and the defendant did not use any protection. This incident was particularised by the prosecution as the basis of count 2.
  1. [11]
    RTC said the defendant called her over the weekend and apologised and her reply was “… you emotionally and physically wrecked me. Sorry is not going to fix it, you have wrecked me.” RTC claimed the defendant also said similar things to her on Monday at school, messaged her on Monday night saying he missed her and wanted her back, and wanted her to send him videos of her fingering herself, but she declined. At school on Tuesday the defendant again apologised for what happened on Friday and RTC told him he had “emotionally and physically wrecked” her. On Wednesday the defendant messaged RTC via Snapchat, again asking to meet her at the shopping centre. Again RTC declined, telling the defendant “… we can’t be friends. This is not going to work.” RTC then removed the defendant from her Snapchat account.
  1. [12]
    RTC also described events that occurred after school on 8 August 2018. The defendant asked her to walk up to the shopping centre and they did so. The defendant suggested they walk through the bush, she said “no”, but the defendant grabbed her hand and led her into the bush, stopped and picked her up, and started kissing her by putting his tongue in her mouth. She managed to push the defendant away but he again grabbed her and put his hands on her breasts and was playing with them. The defendant also pushed his body against her and she could feel his erection. She again managed to push him away. The defendant then told her he may as well shoot himself but RTC replied that she would not date him. This incident was particularised by the prosecution as the basis of count 3.
  1. [13]
    RTC also described some conduct which is not the basis of any charges. RTC said when she and the defendant started talking, and she was only 15, the defendant would put his arm around her and put his hand on her breast and squeeze her breast, on the outside of her clothing. She would tell him to stop but he did not. This happened during the day whenever they saw each other. In addition, RTC described that she and the defendant had sent each other pictures and videos via Snapchat. She said she had sent the defendant about 20 pictures of her vagina and breasts, and the defendant sent her over 20 pictures of his penis. She had also sent between 3 and 6 videos of “myself fingering”, and the defendant had sent about 6 videos of himself “jacking off”.
  1. [14]
    RTC said she did not tell anyone what happened after the first event at K block, told her friend HXD she had just been raped when she got to school on 3 August, told her friend YTR of that on the following Monday, and told the deputy principal of events on 9 August 2018, before telling police. Later she admitted also telling BQS about being raped and acknowledged she did not tell police of that. RTC said that on 9/8/2018, the defendant’s brother accused her of being a liar, and this was overheard by a teacher and reported to the deputy principal. As a result the deputy principal approached her and alleged she had been spreading false stories the defendant had raped her. She then told the deputy principal what had occurred. RTC said she next spoke to a counsellor, her mother was called, and the deputy principal called the police and she was interviewed.
  1. [15]
    RTC said she could not recall writing a note to BQS saying she and the defendant “fucked in the bushes”, laughing about it, and looking up jokes or memes about rape. RTC acknowledged she only told HXD that when walking through the bushes the defendant “pulled his dick out”. RTC acknowledged her complaint to YTR was that the defendant pulled her into some bushes, tried to force himself on her, and tried to put his penis in. RTC specifically denied telling JQX and CSW of what occurred and said they had been told by other people. When RTC was asked whether she told CSW she had spilt milk on her jacket, then said it was in fact sperm, said that she had “fucked” the defendant in the bushes that morning, and was joking about it, she replied she could not recall.
  1. [16]
    RTC confirmed that after the first incident, she “broke up” with the defendant, but that from 1 August the defendant continually tried to restart the relationship. She agreed this was “pretty much all one way”; i.e. initiated by the defendant, and that she continually rebuffed his suggestions. RTC specifically denied trying to get the defendant back as her boyfriend after 3 August 2018. RTC also said that as a safety measure, she tried to keep her friend HXD with her whenever the defendant was present. RTC acknowledged that she had deleted the messages from her phone relevant to the first incident at K block, her meeting up with the defendant on 3 August, and the defendant trying to renew the relationship.
  1. [17]
    RTC acknowledged the K block area was one of the least private areas at the school. She denied she’d fabricated the incident in which she described the defendant inserted fingers into her vagina. RTC denied that on 3 August she willingly kissed and hugged the defendant. She said the defendant “told me to lie down” and “put me where he wanted me”. When it was suggested each of them removed their pants and underwear, RTC responded “He told me to”. When suggested the defendant was on top of her, they were kissing, but the defendant’s penis did not enter her vagina, RTC replied the “tip of it did”. RTC twice agreed that soon after they had removed their pants and the defendant got on top of her, he ejaculated. She denied suggestions that at no time she dissented, or resisted, or said stop or she didn’t wish to participate. She maintained she told the defendant to stop. RTC also denied she was not upset afterwards. RTC accepted that afterwards she told the defendant she wished it hadn’t happened and that she waited until they’d been in a relationship for some time. RTC denied she fabricated the incident she described occurring on 8 August 2018.
  1. [18]
    RTC was taken through some of the text messages she exchanged with the defendant, as contained in Exhibit 6. She acknowledged sending and receiving them. In particular, she acknowledged an exchange of text messages prior to meeting with the defendant on the afternoon of 8 August; i.e. prior to the incident charged as count 3. RTC denied she lied in claiming the defendant was wanting her back. RTC claimed that when she sent the messages she cared about the defendant as a friend but had no intention to resume a relationship and her expression of wanting the defendant meant only wanting him as a friend.
  1. [19]
    The relevant text message exchange from 8 August 2018 is set out below.

RTC: PNX, I want to work this out

PNX: Y

RTC: Because Unless you don’t want me anymore

PNX: I do but u like Logan

RTC: Yeah but Logan don’t wanna date me

PNX: Have u asked him

RTC: Yes I have

PNX: Ok

RTC: Do you want me Anymore

PNX: Yea

RTC: How bad

PNX: Idk

RTC: Well PNX u did something to me and acting like it’s nothing.

PNX: No I’m not

RTC: It feels like it

PNX: How

RTC: It’s like it never meant to happen

PNX: Well did you want it to happen

RTC: PNX ur acting like it didn’t happen, like u didn’t want to do it

PNX: I did but u didn’t

RTC: Because I wasn’t ready PNX I wanted was together before we did it

PNX: I’ll see if I’m catching the bus

RTC: Why

PNX: So we can walk and talk

RTC: PNX CSW wants u and I want u and u don’t know who u want.

PNX: I want both of us

RTC: U can’t have both of us PNX honestly I’m just going to leave

PNX: Y

RTC: Because I’m not going to be second best and I know u like Tahlia too

PNX: I don’t like her I like her as a friend

RTC: Sure sure

PNX: Look I’m walking to woollies this afternoon if u want to walk and talk with me What

RTC: PNX I can’t be second best again

PNX: Your not Please walk to woollies with me

RTC: Yes am I because you show CSW more attention

PNX: Sorry I’ll show u more attention

RTC: No

PNX: Y

RTC: Because CSW wants u

PNX: I unblocked u on Snapchat

RTC: K

PNX: Yea

YTR

  1. [20]
    YTR was born on 11 January 2004. She attended school with RTC and the defendant. She was interviewed by a single police officer on 28/5/2019 at Toowoomba Police Station; she was then aged 15. The interview was recorded and played in evidence (Exhibit 8).
  1. [21]
    YTR recalled a day in term 3 during 2018, RTC had white stuff on her jumper and said she spilt milk that morning. Later, RTC pulled her and HXD aside and said that morning when walking to school, PNX pulled her into bushes, tried to force himself on her, and “tried to put his thing into her”. RTC told them the white stuff on her jumper was the defendant’s “cum”. YTR said RTC told her she and the defendant were dating at that time.

BQS

  1. [22]
    BQS was born on 19 September 2003. She attended school with RTC and the defendant. She was interviewed by a single police officer on 31/3/2020, at Toowoomba Police Station; she was then aged 16. The interview was recorded and played in evidence (Exhibit 10).
  1. [23]
    BQS recalled a day in 2018, RTC told her friends the defendant had “fucked her in the bush” on the way to school, and she had “cum” on her jumper and pants. RTC and CSW wrote it down in a note. RTC and her friends were laughing and joking about it and looking up memes. RTC later told her it wasn’t “cum”, but milk and yoghurt from spilling her breakfast. RTC was accusing the defendant of raping her but later apologised to the defendant. BQS spoke to the defendant who denied raping RTC.

YVM

  1. [24]
    In 2018, YVM was acting in the role of deputy principal at the high school attended by RTC and the defendant. On 9 August 2018, she spoke with the defendant and his mother at the school, who complained that RTC was harassing the defendant and spreading rumours he raped her. As a result, YVM spoke with RTC who told her that on two occasions in the previous week, she and the defendant had met in bush land across the road from the school. On one of those occasions the defendant had removed or pulled down her shorts, inserted himself into her against her will, and ejaculated on her jumper. RTC also told her she arrived at school upset and told two friends about the incident. A formal notification was later passed to police.

JQX

  1. [25]
    JQX was in grade 9 in 2018. She attended school with RTC and the defendant. She was interviewed by a single police officer on 6/4/2020. The interview was recorded and played in evidence (Exhibit 12). JQX said one day during 2018 at school, RTC was telling a group the defendant raped her.

CSW

  1. [26]
    CSW was at school with both RTC and the defendant. In third term in 2018, RTC came to school and said she had spilt milk or yoghurt on her jumper at breakfast. RTC was joking with her friends YTR and HXD about this. CSW recalled seeing a white spot on RTC’s jumper. Later, RTC pulled her aside and said jokingly it was sperm on her jumper, because the defendant had “fucked her in the bush before school”. CSW also heard RTC telling BQS, in a joking manner, the same thing. CSW also saw RTC and others looking up “rape” and memes on the internet.

HXD

  1. [27]
    HXD was born on 17 August 2003. She attended school with RTC and the defendant. She was interviewed by a single police officer on 11/5/2019, at Toowoomba Police Station; she was then aged 15. The interview was recorded and played in evidence (Exhibit 14).
  1. [28]
    HXD said one day in August 2018, RTC came to school and told her she had spilt milk on her jumper and she saw there was a white substance on one of the sleeves. Later, RTC was upset and said it was “cum”, she had been hurt, and it was from the defendant. RTC also said they were walking through the bushes near school and the defendant had pulled his “dick” out.

Joel Bryant

  1. [29]
    Joel Bryant is a Detective Sergeant of Police, now stationed in Brisbane. He was previously a Detective Senior Constable stationed in Toowoomba. On 11 August 2018, Det Bryant executed a search warrant at the defendant’s home address in the presence of the defendant and his mother. In the course of doing so, Det Bryant informed the defendant he did not have to answer any questions and of his right to contact a lawyer. Det Bryant informed the defendant of the allegations and the defendant denied committing any offence. The defendant acknowledged he and RTC were dating for a period but said he then broke off the relationship. He said that when they were dating he hugged and kissed RTC. When asked “Have you ever had any further involvement of a sexual nature with that girl?” he replied “No. No.” The defendant said RTC had been pursuing him and had then spread stories he had raped her. He denied doing so.

Admission

  1. [30]
    Pursuant to s 644 of the Code, the parties admitted (Exhibit 18) that the jacket of RTC was examined and found to have fractions of sperm present. When analysis of that section of the jacket was undertaken, it revealed the presence of DNA from a single contributor which was consistent with the defendant. That result was calculated to be 100 billion times more likely to have occurred if the defendant had contributed DNA, than if he had not.

General principles

  1. [31]
    The onus is on the prosecution to prove each element of the charges beyond reasonable doubt. The elements are set out below. There is no onus on the defendant to prove anything at all, let alone that he is innocent and the defendant is presumed by me to be innocent. My verdicts are based only on the evidence and not any prejudice for, or sympathy against, any person. The defendant did not give or call evidence as is his right; no inference is drawn against him on that account. Because separate charges are preferred, it is necessary that I give separate consideration as to whether the elements of each offence are proved. Any doubt I have as to the reliability of the evidence of RTC in respect of any of the counts must be taken into account in respect of my assessment of her evidence regarding the other counts.
  1. [32]
    The individual measures used to take and present the evidence of RTC, YTR, BQS, JQX, and HXD, are described above. I draw no inference as to the defendant’s guilt because those measure were used. The probative value of this evidence is not increased or decreased because those measure were used; i.e. the evidence is not better evidence, or worse evidence, than if given in person in court. I do not give the evidence any greater or lesser weight because those measures were used.
  1. [33]
    In this case there is evidence of preliminary complaint by RTC to a number of persons; namely, YTR, BQS, YVM, CSW, JQX, and HXD. The relevance of these preliminary complaints is only as to the credit and reliability of the evidence of RTC. The evidence cannot be regarded by me as evidence of the truth of the out of court statements. Depending upon the view I take of this evidence, the evidence may bolster the credibility of RTC due to consistency, or detract from her credibility or reliability due to inconsistency.
  1. [34]
    In the course of cross-examination, it was suggested to RTC that her claims the defendant inserted fingers into her vagina without consent, inserted his penis into her vagina without consent, and kissed her and grabbed her breasts without her consent, were untrue. RTC denied those suggestions. The evidence showed RTC complained to school authorities and police only after she was confronted at school by the deputy principal about making allegations of rape against the defendant. It follows the defence case is that RTC’s evidence is untrue and that possible motive exists for her to have made a false complaint. In those circumstances, I recognise that rejection of any possible motive for RTC making a false complaint, does not mean RTC is truthful. Any failure to prove a motive to lie does not mean no motive to lie exists and remains irrelevant to my assessment of RTC’s credit. If I reject the possible motive for RTC to have lied, it remains for my assessment whether RTC’s account is truthful and reliable.
  1. [35]
    The prosecution rely upon statements contained in the text messages attributed to the defendant as being an admission or confession of guilt. In order to rely upon these statements as evidence of the defendant’s guilt of the charges, it is necessary that I am satisfied they were made, and that they are true. In this case there is no dispute the statements were made by the defendant, or as to what they contained. However, it is in issue as to what was meant by the statements. In those circumstances, it remains for me “to determine whether or not the words amount to an admission and what weight, if any, the admission should be given.”1 It follows that in order to rely upon the statements as evidence of guilt, it is necessary that I be satisfied as to what they mean, and that they are a true statement of guilt.
  1. [36]
    The prosecution led evidence of sexual acts between RTC and the defendant, which were not the subject of any charges. RTC said that when they first started talking while at school, the defendant would put his arm around her and grab and squeeze her breast. She said this happened numerous times despite her telling the defendant not to do it. In addition, RTC said she and the defendant had exchanged sexually explicit photographs and videos of themselves, via a messaging service. The relevance of this evidence, if accepted, is that it might show the defendant had a sexual interest in RTC and might therefore make her allegations the basis of the specific charges more likely to be true. Unless I am satisfied these acts, or some of them, occurred and that they show the defendant had a sexual interest in RTC, the evidence of this other sexual activity has no relevance and I should ignore it. If I am satisfied these acts, or some of them, occurred and that they demonstrate the defendant had a sexual interest in RTC, those acts may make her specific allegations more likely to be true. However, the evidence cannot be used by me as a basis to conclude the defendant is a person of bad character, or who is deserving of punishment, and to find him guilty on that account; or that because he engaged in that behaviour he must therefore be guilty of the charged offences.
  1. [37]
    The prosecution rely upon a lie, allegedly told by the defendant to police, as proof of the offence in count 2 because it demonstrates a consciousness of guilt. In this case the lie alleged is the defendant’s denial to police officer Bryant of engaging in any sexual activity with RTC. The prosecution assert that is proved by the admission (Ex 18), and by the case put on behalf of the defendant, to be a lie; since that evidence establishes the defendant did engage in sexual activity with RTC resulting in his sperm being deposited on her jacket. Before I can use a lie told by the defendant as evidence that he is guilty of an offence, I must be satisfied: that the defendant told a deliberate untruth, that the lie is concerned with some circumstance or event connected with an offence and reveals a knowledge of the offence or some aspect of it, and that the lie was told because the defendant knew the truth of the matter would implicate him in the commission of the offence, and not for some other reason such as shame, a wish to conceal embarrassing or disgraceful behaviour, out of panic, confusion, to escape an unjust accusation, or to avoid a consequence extraneous to the offence. The defence acknowledge the defendant told a deliberate lie but argue the lie can be used only as regards the defendant’s credit.

Particulars and elements of offences

  1. [38]
    In this case the prosecution have particularised the act or acts relied upon as the basis of each count as follows:

Count 1 (rape): The defendant inserted a finger or fingers into the vagina of RTC without her consent.

Count 2 (rape): The defendant inserted his penis into the vagina of RTC without her consent.

Count 3 (sexual assault): The defendant kissed the mouth of and/or touched the breasts of RTC without her consent.

  1. [39]
    Section 349 of the Code provides that any person who rapes another person commits an offence. Relevantly, a person rapes another person if –
  1. a)
     the person has carnal knowledge with or of the other person without the other person’s consent; or
  1. b)
     the person penetrates the vagina of the other person to any extent with a part of the person’s body that is not a penis without the other person’s consent.
  1. [40]
    Section 352 of the Code provides that any person who unlawfully and indecently assaults another person commits an offence.
  1. [41]
    Carnal knowledge means sexual intercourse; i.e. penetration of the vagina by the penis, and pursuant to s 6 of the Code, is complete upon penetration to any extent. Pursuant to s 348 of the Code, for each offence, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. Further, relevantly for this case and without limiting that definition, a person’s consent to an act is not freely and voluntarily given if it is obtained by force, by threat or intimidation, by fear of bodily harm, or by exercise of authority.
  1. [42]
    The elements of the rape offences, as charged here, are:

Count 1: (digital penetration rape):

  1. 1.
     The defendant inserted his finger or fingers into the vagina of RTC;
  1. 2.
     That was without the consent of RTC.

Count 2 (penile penetration rape):

  1. 1.
     The defendant inserted his penis into the vagina of RTC.
  1. 2.
     That was without the consent of RTC.

Count 3 (sexual assault):

  1. The defendant assaulted RTC. Assault is defined as follows: A person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without their consent is said to assault that other person and the act is called an assault.
  2. The assault was unlawful. Unlawful means not authorised, justified or excused by law.
  3. The assault was indecent. The word “indecent” bears its ordinary everyday meaning, that is, what the community regards as indecent. It is what offends against currently accepted standards of decency and must always be judged in the light of time, place and circumstance; that is, the context in which the events occurred.
  1. [43]
    In proof of each count, the prosecution relies upon the evidence of RTC. It is conceded there is no other evidence independently capable of proving the charges beyond reasonable doubt. For count 1, the prosecution relies upon the account of RTC that on an occasion she met with the defendant near K block, he put his hand into her pants and inserted two fingers into her vagina without her consent. RTC said that conduct occurred, that she did not consent to it, that she told the defendant beforehand she did not want to participate, and she actively resisted. For count 2, the prosecution relies upon the account of RTC that on 3 August 2018, she met with the defendant at the shopping centre, the defendant led her into the bush and forced her onto the ground, the defendant removed her and his shorts, and the defendant got on top of her and inserted his penis into her vagina. RTC said that occurred despite her protests and telling the defendant she did not wish to participate, telling him “no” and to stop. RTC maintained that activity occurred without her consent. For count 3, the prosecution relies upon the account of RTC that on 8 August 2018, she met with the defendant after school, he led her into the bush, he commenced kissing her against her will, she pushed him away and he grabbed her breasts, before she again managed to push him away. RTC maintained she did not consent to that activity.
  1. [44]
    The prosecution relies upon the text messages as including a statement which should be construed as an admission or confession that whatever occurred on 3/8/2018 was without the consent of RTC. In particular, the prosecution assert RTC messaged u did something to me” and “ur acting like it didn’t happen like you didn’t want to do it”, to which the defendant replied “I did but u didn’t”. In addition, the prosecution rely upon the defendant’s denial to Det Bryant of any sexual involvement as a lie evidencing a consciousness of guilt. The prosecution argue that is proved to be a lie by the finding of the defendant’s sperm on the jacket of RTC. The prosecution assert this evidence provides material support for the account of RTC describing the individual offences.
  1. [45]
    The evidence of RTC is capable of proving the elements of each of the charged offences. If accepted, her evidence would prove that the defendant inserted his fingers into her vagina without her consent (count 1), inserted his penis into her vagina without her consent (count 2), and kissed her on the mouth and groped her breasts without her consent (count 3). For count 3 it is not disputed by the defence that if it occurred, the activity described, namely kissing her on the mouth and groping her breasts, was both unlawful and indecent. The real issue in respect of each count is whether it has been proved beyond reasonable doubt the charged activity actually occurred.

Consideration

  1. [46]
    The central issue in this case is as to the credibility and reliability of RTC’s claims. As noted above, if accepted beyond reasonable doubt, the evidence of RTC is capable of proving each of the charges. However, I have concluded her evidence of each of the specific allegations which is the basis of these charges cannot be accepted beyond reasonable doubt. There are a number of deficiencies in RTC’s evidence which result in that conclusion.
  1. [47]
    Of primary significance is the text exchange between RTC and the defendant on 8 August 2018. RTC claimed in her account to police and when cross-examined, that the defendant persistently pursued her to renew their relationship, but that she consistently declined his advances. On her version this attitude was entrenched and steadfast, not the least because of the defendant’s commission of offences upon her on the first two occasions. She claimed to be avoiding him, and to have resorted to meeting him only in the presence of her friend. She claimed to have repeatedly told him she had been “emotionally and physically wrecked” by his behaviour. Yet the text messages reveal the opposite, namely that it was RTC who pursued the defendant.
  1. [48]
    The text exchange of 8/8/2018 commenced with RTC messaging “I want to work this out … unless you don’t want me anymore”. She repeated her question “Do u want me … Anymore … How bad”. RTC then messaged that the defendant “did something to me and acting like it’s nothing like it never meant to happen like u didn’t want to do it”. To this the defendant replied “I did but u didn’t”. RTC’s response however, is telling. It was “Because I wasn’t ready … I wanted was together before we did it”, and “CSW wants u and I want u and u don’t know who u want”. The messages clearly demonstrate that RTC repeatedly asked whether the defendant still wanted her; not as she described, the defendant asking her to let him be her boyfriend. Contrary to the evidence of RTC and the submissions of the prosecution, I conclude this exchange demonstrates RTC’s evidence is unreliable. In the face of being taken through the relevant messages, RTC maintained her claim of the defendant’s pursuit of her. The explanation she offered, that she was interested in the defendant as a friend, is directly contradicted by her message “I want u”. Later, her complaint was of not being “second best”; i.e. not the defendant’s first choice. I reject RTC’s evidence the defendant was the one aggressively pursuing a relationship.
  1. [49]
    This text exchange also included the message relied upon by the prosecution as an admission or confession of guilt. The passage is cryptic in the sense that it is not made clear as to precisely what activity is being referred to. The plain words of the message might on their face support a contention they are an admission. However, the words must be seen in their proper context; i.e. by examination of the entirety of the passage in which they appear. Viewed in their entirety, the messages demonstrate RTC complained, to the effect, the defendant was behaving as though the activity they engaged in meant nothing to him. Notably, she did not complain of being raped or that whatever happened was without her consent. She messaged “ur acting … like u didn’t want to do it”. That assertion is nonsensical if her evidence of forceful, non-consensual, sexual intercourse is to be accepted. Rather, it suggests RTC was upset that despite engaging in the activity, the defendant didn’t really care about her. To that assertion, the defendant replied “I did but u didn’t”; consistent with stating he was the one who cared and she didn’t. RTC did not then in clear terms confirm any lack of consent by her. Instead, she offered reasons consistent with some regret about what occurred. This conclusion is also consistent with her evidence that afterwards, she told the defendant she wished it hadn’t happened and that she waited until they’d been in a relationship for some time. Importantly, in her text explanation she talked about wanting them to be together, i.e. in a relationship. I conclude the defendant’s response “I did but u didn’t” should not be construed as an admission or confession of guilt. That statement, viewed in context, seems to me consistent with RTC attempting to have the defendant agree to a relationship with her, her using the earlier event as emotional leverage to do so, and the defendant in effect denying he did not care for her. In view of my conclusions, as expressed below, concerning the use of the lie told by the defendant to Det Bryant, I do not regard the lie as also showing the text message of the defendant should be construed as an admission or confession.
  1. [50]
    In addition, the text exchange demonstrates RTC was not avoiding the defendant or reluctant to meet with him. In the messages she agreed to do so on 8/8/2018, and her evidence was that she did, without the presence of her friend. That she readily met with the defendant seems plainly inconsistent with her claim to have been traumatised by his earlier conduct; particularly the claim of being raped in the same location five days earlier.
  1. [51]
    Some inconsistency as to detail emerged in the account given by RTC of the alleged rape on 3/8/2018. In cross-examination, she said the defendant told her to lie down whereas her account to police was simply that he put her on the ground. In addition, in cross-examination, she admitted she pulled her own pants down. She told police the defendant had done so. In her account to police, RTC said that despite her protests, the defendant continued to have sex with her,that his penis was half inside her, and eventually he withdrew and ejaculated. In cross-examination, her description was that only the “tip” of the defendant’s penis entered her, and that he ejaculated almost immediately they had removed their pants and the defendant got on top of her. These variations as to significant detail of the alleged event also undermine the reliability of RTC’s evidence.
  1. [52]
    Initially, RTC claimed only to have complained to HXD and YTR about the events she claimed to have occurred on 3/8/2018, but later acknowledged also telling BQS. RTC acknowledged she only told HXD the defendant “pulled his dick out”. RTC acknowledged her complaint to YTR was only that the defendant tried to force himself on her, and tried to put his penis in. RTC admitted she did not tell police of her complaint to BQS. She did not expressly deny the detail of BQS’s claim as to what she told her but instead said she could not recall those details. BQS said RTC told her in a note that she and the defendant had “fucked in the bushes” and RTC and her friends were laughing and joking about what occurred and looking up rude memes. RTC denied telling any others at school of theses events. CSW’s evidence was that RTC told her the defendant “fucked her in the bushes” and was joking with others about that and looking up “rape” memes. RTC did not expressly deny the detail put to her but said she could not recall it. JQX gave evidence of hearing RTC tell a group the defendant raped her. The account given to YVM is not detailed, but at least consistent with RTC’s claims of twice going to the bush area with the defendant and on one of those occasions being raped.
  1. [53]
    The only use to be made of these preliminary complaints is as regards the credit and reliability of RTC. As is obvious, the version to HXD is limited only to an allegation the defendant had his penis out. The complainant to YTR was only of an attempt at rape. The versions to BQS and CSW would seem inconsistent with non-consensual activity and suggest, far from being upset at what occurred, RTC was joking about it. None of this evidence assists the credibility or reliability of RTC. In fact, the claim by JQX is inconsistent with RTC’s evidence that she did not tell anyone else. The version to the deputy principal YVM, whilst limited in detail and consistent with RTC’s version, is hardly compelling evidence of consistency in light of the other evidence. I conclude the preliminary complaint evidence detracts from the credit and reliability of RTC. In fact, the circumstances in which the complaint was made to the deputy principal also detract from the credibility or reliability of RTC. The evidence shows the complaint to a person in authority, the first complaint that is seemingly consistent with the account to police, was only made after the deputy principal confronted RTC and alleged she was spreading false stories about the defendant. RTC did not, of her own motion, approach a person in authority to complain.
  1. [54]
    The prosecution also rely upon the lie told to Det Bryant by the defendant on 11/8/2018, as evidence of his guilt of the offence of rape. Det Bryant told the defendant of the allegations and the defendant denied them. The defendant said he had hugged and kissed RTC when they were dating. He was then asked “Have you ever had any further involvement, of a sexual nature, with that girl?” The defendant replied “No. No.” In light of the admitted sexual interaction, as revealed in the defence instructions put to RTC concerning the events of 3/8/2018, and also in the admission (Exhibit 18) to the effect the defendant’s sperm was found on RTC’s jacket, it should be accepted the defendant ejaculated on RTC’s jacket on that day. In those circumstances it is clear the defendant’s reply to Det Bryant was deliberately untrue. However, before that lie can be relied upon as evidence of the commission of an offence, I must be satisfied the lie was told to conceal the defendant’s guilt, as opposed to being told for some other purpose.
  1. [55]
    In that regard, the defence point to the circumstances in which the statement was made to the police officer; namely that he was being questioned in front of his mother about any sexual interaction with a girl who was alleging he sexually assaulted her several times. It is submitted in those circumstances it remains a real possibility the defendant lied out of embarrassment or to conceal conduct which would be frowned upon or not condoned. The defence urge the lie is therefore relevant only as regards the credit of the defendant’s denials to the police officer of committing any offence. Whilst acknowledging the presence of the defendant’s mother, the prosecution contend that having been informed of details of the allegations, the truth, which on the defendant’s account would still have involved denial of offending, was the obvious reaction. The defendant was born on 18 December 2001, so that at the date of the police interview he was aged 16 years and 7 months. He spoke to the police officer about his education and breaking off his relationship with the complainant because he wanted to maximise his prospects. I conclude in the circumstances of explaining his conduct in front of his mother, and when being accused of serious sexual offences, it remains a real possibility the lie was told to avoid his mother’s disapproval or perhaps even to bolster his true defence. For those reasons I do not regard the lie as evidencing a consciousness of guilt of any offence.
  1. [56]
    As detailed above, the prosecution also led evidence of uncharged sexual conduct between the defendant and RTC. RTC alleged the defendant squeezed her breasts on multiple occasions and that she and the defendant exchanged sexual photographs and videos. That evidence, if accepted, might make the complainant’s claims as to the specific counts more likely to be true because it might show a sexual interest by the defendant in RTC. The defence case, in effect at least, acknowledges the existence of the defendant’s sexual interest in the complainant. This evidence, even if accepted, adds little to that conclusion. However, the only evidence of these uncharged sexual activities is the account of RTC. Because I hold real doubts concerning the credit and reliability of RTC generally, I am not satisfied these uncharged allegations should be accepted. In those circumstances, I should disregard them.
  1. [57]
    The circumstances in which the complaint was made by RTC to the deputy principal do in my view provide a possible explanation for the complainant to have made a false complaint. That is a circumstance, as identified above, which contributes to my conclusion as to her unreliability.
  1. [58]
    For the reasons expressed, I do not regard the defendant’s lie as evidence of guilt. Nor do I accept the text messages referred to reveal any admission or confession of guilt. The combination of matters I have identified above, leave me in doubt as to the credit and reliability of the evidence of RTC. In the end, the only evidence which might prove that the acts relied upon for each of the counts occurred, is that of RTC. I am not satisfied of those parts of her evidence beyond reasonable doubt.
  1. [59]
    In particular, I am not satisfied the defendant inserted fingers into RTC’s vagina as alleged for count 1; I am not satisfied the defendant inserted his penis into RTC’s vagina as alleged for count 2; and I am not satisfied the defendant kissed the mouth of and/or groped the breasts of RTC as alleged for count 3. It follows the defendant should be found not guilty of each count.

Verdicts

  1. [60]
    In relation to count 1 on the indictment, the charge of rape, I find PNX not guilty.
  1. [61]
    In relation to count 2 on the indictment, the charge of rape, I find PNX not guilty.
  1. [62]
    In relation to count 3 on the indictment, the charge of sexual assault, I find PNX not guilty.

Order

  1. [63]
    I make the following order:
  1. PNX is formally discharged in respect of indictment number 43 of 2020.

Footnotes

[1]R v Caulfield [2012] QCA 204; at [18].

Close

Editorial Notes

  • Published Case Name:

    R v PNX

  • Shortened Case Name:

    R v PNX

  • MNC:

    [2020] QCHC 32

  • Court:

    QChC

  • Judge(s):

    Lynch QC DCJ

  • Date:

    30 Oct 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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