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R v YSO[2015] QCHC 7

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v YSO [2015] QChC 7

PARTIES:

R

v

YSO

(Defendant)

FILE NO/S:

96/14

DIVISION:

Childrens Court

PROCEEDING:

Trial (Judge-only)

ORIGINATING COURT:

Childrens Court

DELIVERED ON:

29 September 2015 (delivered ex tempore)

DELIVERED AT:

Beenleigh

HEARING DATE:

29 September 2015

JUDGE:

Dearden DCJ

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the matter proceeded as a judge-only trial – where the defendant was charged with two counts of rape – where there was alternative charges of indecent treatment of a child under 16 under 12 – where the defendant pleaded not guilty to each count – where there is preliminary complaint evidence – where the defendant called evidence but did not give evidence – whether the defendant is guilty or not guilty of the charges

LEGISLATION:

Criminal Code 1899, ss 210, 578 

Evidence Act 1977, ss 21AK, 93A

COUNSEL:

D Nardone for the Crown

N Weston for the Defendant

SOLICITORS:

Office of the Director of the Public Prosecutions for the Crown

Raniga Lawyers for the Defendant
  1. [1]
    HIS HONOUR: The defendant, YSO, is charged with two counts of rape, which alleges as follows: count 1, that, on a date unknown between the 31st day of August 2013 and the first day of December 2013, at Daisy Hill in the State of Queensland, YSO raped RKQ; in respect of count 2, that, on a date unknown between the fourth day of July 2014 and the 13th day of July 2014, at Daisy Hill in the State of Queensland, YSO raped RKQ.
  1. [2]
    The defendant pleaded not guilty to each count and elected as a juvenile to proceed to a judge-only trial before me in the Childrens Court. The defendant was born on 22 September 2000 and is currently 15 years old. He was 12 to 13 years old at the time of the alleged events of counts 1 and 2 (exhibit D).
  1. [3]
    The complainant, RKQ, is the defendant’s sister and was born on 2 July 2004 (exhibit D). She was nine and 10 at the time of the alleged events of counts 1 and 2.
  1. [4]
    It is formally admitted (exhibit D) that:

At the time of doing of doing the acts that constitute counts 1 and 2 on the indictment [the defendant] had capacity to know that he ought not do the acts.

(Criminal Code s.29(2)).

  1. [5]
    In respect of each count, the prosecution must prove, beyond reasonable doubt, that the defendant: –
  1. (a)
    had carnal knowledge of the complainant;
  1. (b)
    without her consent.
  1. [6]
    Criminal Code s.6 provides that, with respect to carnal knowledge, the offence of rape:

…is complete on penetration to any extent.

  1. [7]
    The penetration alleged in each count is of the complainant’s vagina, by the defendant’s penis.

The Evidence

  1. [8]
    The complainant took part in an s.93A Evidence Act interview with police on 17 July 2014, and an s.21AK pre-record at Beenleigh District Court before Judge McGinness on 1 June 2015.
  1. [9]
    In respect of the s.93A statement, I direct myself that the taking of evidence in this way is a routine practice in matters such as this, and I draw no adverse inference in respect of the defendant.
  1. [10]
    In respect of the s.21AK proceedings, I direct myself in accordance with the provisions of s.21AW of the Evidence Act.
  1. [11]
    Evidence for the prosecution was also given by the defendant’s father, NOP, the defendant’s stepmother, TNO, and guidance officer, SHI. The defendant called evidence from his mother, IRT, but did not himself give evidence.

Count 2

  1. [12]
    The complainant gave evidence that she and the defendant were in the lounge room, lying on couches, in the evening, watching TV, when the defendant:

…pulled my pants down, and then he put his doodle in my vagina, and then, um, I said, I pushed him away and said, “Stop it.  It hurts,” and then he, and then he stopped, and then I said, “Stop.  It hurts,” and then I walked off and went to bed.

(Exhibit 1/Exhibit A pp5-6).

  1. [13]
    The complainant was wearing pink winter pyjamas with pandas:

…long pants and a long-sleeved T-shirt –,

and undies.  The defendant was wearing shorts and undies (Exhibit A p.7).

  1. [14]
    The complainant describes “lying down”, having a knitted blanket pulled off her (Exhibit A p.8), having her pants pulled down below her knees (Exhibit A p.10), her underpants pulled down (Exhibit A p.8), then the defendant:

…started to put his doodle in my vagina, and then I pushed him away and said, “Stop.  It hurts.”

  1. [15]
    The complainant says the defendant:

…pushed it [his doodle] in and back out, and then I pushed him away.

(Exhibit A p.8).

  1. [16]
    The complainant described the defendant’s doodle as:

…long … pointed like a pencil … and then it’s hairy around it.

(Exhibit A p.9).

  1. [17]
    When asked how the defendant put his doodle in her vagina, the complainant said, variously:

He looked, and then he put it in –

and:

He looked down and tried to see where the hole was.

(Exhibit A p.10).

  1. [18]
    The complainant said that her body:

…was just lying down straight on the couch –

and the defendant’s:

…legs were over my legs.

(Exhibit A p.11).

  1. [19]
    When asked:

…can you tell me what you mean by it hurt you?

the complainant replied:

Um, well, I think it went in too far.  So it hurt me.

  1. [20]
    The complainant (Exhibit A p.11) described the defendant’s hands as being near her head (Exhibit A p.12).
  1. [21]
    The complainant said that a boy’s doodle was used:

…to wee and to get someone pregnant,

and that a girl’s vagina was used:

…to wee and to do the same thing.

(Exhibit Ap.11).

  1. [22]
    In cross-examination at the s.21AK hearing, in respect of count 2, the complainant gave evidence that: –
  1. (a)
    her underpants were pushed down to her knees, but did not come off;  and
  1. (b)
    her legs were positioned straight, and her legs were together when she was lying down on the lounge, and the defendant was on top of her;  and
  1. (c)
    after some prevarication, said there was a little bit of hair at the bottom of the defendant’s penis (Exhibit C 1-11, 1-12).
  1. [23]
    Critically, the complainant agreed that her legs were positioned together, her underpants were down at her knees, the defendant tried to put his penis in her vagina, and it hurt (Exhibit C 1-13). When asked:

And so you can’t say that his penis actually went inside your vagina in the lounge room?,

the complainant replied, “No.” (Exhibit C 1-13).

  1. [24]
    There was further cross-examination on this issue, and concern expressed by both the prosecutor and the presiding judge about the complainant’s confusion (Exhibit C 1-14 – 1-15), but when asked again:

What I’m saying to you is that YSO never tried to put his penis in your vagina?

the complainant said:

Mmm –

and when asked further:

Do you agree or disagree?

the complainant replied:

Agree.

(Exhibit C 1-15).

  1. [25]
    In re-examination, when asked:

Can you remember what [the defendant] did with his penis?

the complainant said:

He put it near my vagina –

which she clarified as being:

near my hole [of her vagina].

(Exhibit C 1-20, 1-21).

Count 1

  1. [26]
    The complainant told police in her Evidence Act s.93A statement, after being questioned about the events relating to count 2, that:

…then, well, last year, when he – we, last saw him, he slept over, and he slept in my bed, and then he did it, the same thing.

(Exhibit A p.17).

  1. [27]
    The complainant described that event in these terms: –

…he was in my bed, because that is a double bed, and, um, one night, he slept in my bed, and then he pulled my nightie up and then pulled my knickers down, and he pulled his pants down and then starting doing it, and then I said, “Stop it, it hurts,” and then I, because that he was on my favourite side, um, I was near the wall, and so then I turned over, and then he couldn’t do it any more.

(Exhibit A pp17-18).

  1. [28]
    The complainant said she was wearing a “purple nightie”, which was “quite short” and “quite smooth” and that the defendant was wearing:

…boxers … with cars on it.

  1. [29]
    The complainant says the defendant:

…pulled my nightie up, not very far, and then he pulled my knickers, and then, yeah, he put his vagina, um – he put his doodle in my vagina.

  1. [30]
    She described her knickers being pulled down to:

…just above my knees.

(Exhibit A p.18).

  1. [31]
    When asked to describe how the defendant put his penis in her vagina, the complainant said variously: –
  1. (a)
    Um, well, he technically did the exact same thing as he did –

(sic);  and:

  1. (b)
    …he, like, put his doodle in mine, and then he, he pushed it in … and then took it back out and then did it again.  So he did it, he did it two times.
  1. [32]
    The complainant says that she then:

…rolled over, and then I said, “Stop it, it hurts,” and then I rolled over.

(Exhibit A p.19).

  1. [33]
    The complainant says her legs “were straight” on the bed, and the defendant’s legs:

…were just on top of mine.

(Exhibit A p.20).

  1. [34]
    The complainant says the defendant’s doodle:

…went in and then back out … of my vagina.

(Exhibit A p.20).

  1. [35]
    She says the defendant’s doodle:

…went inside –

and she knew:

…because it hurt, and, um, he kept on checking that it was in.

  1. [36]
    When asked to describe how it felt, she said that:

It stung, and that’s all.  It stung.

(Exhibit A p.21).

  1. [37]
    In cross-examination at the s.21AK hearing, the complainant gave evidence that: –
  1. (a)
    her legs were straight and together;  and
  1. (b)
    her underpants were down at her knees;  and
  1. (c)
    she did not see the defendant’s penis;  and
  1. (d)
    she couldn’t say that the defendant’s penis went inside her vagina.

(Exhibit C 1-18, 1-19).

  1. [38]
    The complainant also identified that the incident charged as count 1, occurred on the evening of a day she spent with the defendant and her mother, for the defendant’s birthday. The complainant agreed that she was picked up by her mother; that they had some of the defendant’s school friends with them; they went to the Mount Gravatt markets and met the complainant’s grandmother; they went to Garden City, where the defendant spent his birthday money; that her mother dropped her off at Kalka Street (where the complainant lived with her father and stepmother); and that the incident (charged as count 1) occurred that night, when the defendant stayed over and shared a bed with her (Exhibit C 1-17, 1-18).

NOP

  1. [39]
    NOP gave evidence that he was the father of the defendant and the complainant, from his relationship with IRT (T 1-9). That relationship ended in 2005, and he started a relationship with TNO in 2005/2006, and they married “four years ago,” (T 1-10).
  1. [40]
    The complainant started living full time with NOP and TNO in July 2013, and the defendant was living with IRT (T 1-10, 1-11). NOP recalled seeing the defendant in September 2013 for his birthday, but couldn’t recall if the defendant stayed over (T 1-11).
  1. [41]
    NOP did recall the defendant staying over after the first weekend of the school holidays in July 2014, and recalled that the defendant stayed for about a week from 5 July. NOP was working two jobs in July 2014, and recalls on a Tuesday or Wednesday evening seeing the defendant and complainant in the lounge room as he left for work. He recalls his wife was in the bedroom feeding the baby, SSO, while their other, KKL, was asleep. When NOP saw the defendant and the complainant, the defendant was on the three-seater couch and the complainant was on the single arm recliner (T 1-12).
  1. [42]
    NOP recalls being asked to attend at the complainant’s school, speaking with the guidance officer, returning home and then having a conversation with the complainant as follows:

I started to ask RRS what had happened back in July or when this took place and she said – she replied that this took place in the school holidays of when YSO was staying over with us for the week.  And I said okay and I asked her what took place and how.  And she said, well, it was when we were sitting on the couch, YSO removed his pants and tried to put his penis and – and I asked her what – you know, what did it look like and she said it was hard, hairy and large.  And what else did I ask?  And I asked her how did she know about what sex was and describe that to me and she described the actions of what sex was for the penis to go into the girl.  Yes, I think that was about all I recall. (T 1-14)

  1. [43]
    In cross-examination, NOP gave evidence that:
  1. (a)
    There were no complaints of sexual misconduct by the defendant to the complainant in the period September 2013 to July 2014;
  1. (b)
    That the lounge room was 10 to 20 metres from the main bedroom;
  1. (c)
    That the light was on the lounge room when he left for work and the defendant and the complainant were both there;
  1. (d)
    That TNO was at home and looking after the two younger children;  and
  1. (e)
    That everything seemed fine (T 1-15, 1-16).
  1. [44]
    Further, NOP agreed in cross-examination that the complainant said, more than once, to him, that the defendant tried to have sex with her (T 1-17).

TNO

  1. [45]
    TNO gave evidence that she was a police officer, on maternity leave since March 2014, and that she and her husband, NOP, lived with the complainant at 3 Kalka Court, Daisy Hill from, at least, July 2013 to July 2014. TNO confirmed that exhibit 3 was an accurate plan of that residence drawn by her (T 1-18).
  1. [46]
    TNO gave evidence that the complainant moved into that house at Daisy Hill in July 2013, while the defendant remained living with his mother (IRT). TNO recalls first seeing the defendant after July 2013, in October or November 2013, following the complainant meeting her mother and the defendant at McDonald’s, Springwood. The defendant then asked to stay the night, and slept in the complainant’s room, which was the only occasion (TNO recalls) the complainant and defendant shared a room when visiting (T 1-20, 1-21).
  1. [47]
    TNO recalled seeing the defendant on 5 July 2014, when the defendant stayed for a week, sleeping on a mattress in her son, KKL’s, room. TNO was on maternity leave, and her husband, NOP, was working two jobs at the time, starting the second job as a security patroller by leaving the house around 9 pm on week nights (T 1-21, 1-22).
  1. [48]
    TNO gave evidence of a conversation with the complainant and NOP, at their home, after a call from the complainant’s school guidance officer, which resulted in a meeting with that guidance officer, and then taking the complainant home (T 1-22).
  1. [49]
    TNO recalled that conversation with the complainant in the following terms. After being asked what they did when they got home, TNO said:

I sat down with RRS in the room next to the kitchen and just asked her what happened.  She was quite emotional.  It took her, you know, at least half an hour to say something to us and then she said that YSO had sex with her and he shoved his penis into her. 

As best you can recall, is that the detail – are they the words she used or is that the detail she gave?  As best I recall.  And then NOP asked RRS – from what I can recall, he asked her “Well, what did his penis look like?”  And she said, “It was big and hairy”.  I can’t really recall any other conversation after that.  Oh, we then asked her when (sic) didn’t she come to me on the night.  She said that she just got up and went to bed.  ( T1-22).

  1. [50]
    I note for the record that the transcript of NOP’s evidence about the same issue was from T 1-14.
  1. [51]
    In cross-examination, TNO confirmed the defendant’s overnight stay in 2013 was in October or November 2013 (T 1-23).
  1. [52]
    TNO did not hear anything unusual from the lounge couch. She said it was probably 10 metres from the main bedroom, when the defendant and complainant were there, and she did check on them that evening, after NOP left for work, and everything seemed okay (T 1-24).
  1. [53]
    TNO gave evidence, with respect to the defendant staying over in the complainant’s bedroom in 2013:
  1. (a)
    There was only one bed in the complainant’s bedroom;  and
  1. (b)
    That bed was up against the adjoining wall between the complainant’s room and the room she and NOP slept in;  and
  1. (c)
    When TNO last saw the defendant and complainant that night, the door to the bedroom was open;  and
  1. (d)
    TNO did not hear anything out of the ordinary that night.  (T 1-25).

SHI

  1. [54]
    SHI was working as a guidance officer for Education Queensland at RSRR in July 2014, where the complainant was a student as at 17 July 2014. SHI spoke to the complainant on that date (T 1-26).
  1. [55]
    SHI’s evidence in respect of that conversation with the complainant is as follows:

And you asked her if she knew what you might have been concerned about?   That’s right.

And she said that she did know and she told you that you were referring to her brother, given that he had had sex with her on the holidays?   That’s right.

And she told you that she had sex – that he had sex with her one night after she had fallen asleep on the couch?   That’s right.

And she said – she told you the rest of the family were asleep in bed?   Yes.

She didn’t provide you anymore details on that?   She told me that it involved her private parts, but I didn’t question her for anymore details other than that.

And she told you that she didn’t think anyone in the house was aware of what happened?   Yes, that’s what she told me.  Yes.

She also told you that her brother had had sex with her one other time before the incident that she had earlier told you about?   That’s my recollection, yes. 

(T 1-27).

  1. [56]
    In cross-examination, SHI gave the following evidence:

When you first saw RRS in your office on the morning of July 17 last year, it was the case that she told you that her brother had had sex with her one night when she’d fallen asleep on the couch?   That’s right, yes.

Okay.  And the rest of the family were asleep in bed?   That’s what she told me.

Okay.  Right.  And you’ve told us that she also said something like, “He touched her in her private parts”?   Yes.

And you didn’t try to obtain any further detail from her at that point?   No, I didn’t.

All right.  Okay.  And she also mentioned to you another allegation about her brother having sex with her on a prior occasion?   Yes, from my recollection.

And was it the case that you didn’t try and attempt to get any further detail from her about that?   No, I didn’t question her any further.

All right.  Okay.  Thank you.  But that was the extent of what she said to you?   Yes.

Or volunteered to you, I should say?   Yes, yeah.

(T 1-28).

  1. [57]
    The defendant, when called upon, elected to call but not to give evidence. The defendant called evidence from his mother, IRT.

IRT

  1. [58]
    IRT gave evidence that she was the mother of the defendant and the complainant, and that she had lived with, but not married NOP, from whom she had separated in 2005 (T 1-32).
  1. [59]
    As of September 2013, IRT had the defendant living full-time with her, and the complainant was living with NOP, and IRT would only see the complainant every now and then (T 1-32).
  1. [60]
    IRT recalls that on the defendant’s birthday in 2013, that is 22 September 2013, the defendant, two of his mates, IRT, and the complainant, went to Mount Gravatt Markets and Garden City, where the defendant bought a game, and they had lunch, after which IRT dropped the complainant off at Daisy Hill (Mr YSO’s house). The defendant slept at IRT’s house on 22 September 2013, but (IRT recalls) may have stayed over at NOP’s house in October or November 2013 for three, maybe four nights, or it could have been a week (T 1-33).
  1. [61]
    IRT recalls in 2014, the defendant showing her two pubic hairs, but she “did not see the whole thing,” (T 1-33).
  1. [62]
    In cross-examination, IRT confirmed that the defendant did not stay overnight with NOP on the night of his birthday (22 September 2013), but recalls that there was an overnight stay, which she recalled was in November, because she had taken a photograph of the complainant at McDonald’s. IRT said that she was not absolutely certain about the date (T 1-34, 1-35).
  1. [63]
    On re-examination, IRT said that she thought it was 1 November when the sleepover occurred (T 1-35).

Directions

  1. [64]
    I set out the further directions which I must conduct these proceedings in accordance with as a judge-only trial.
  1. [65]
    I must reach my verdict only on the evidence, that is the s.93A and s.21AK video recordings of the complainant, the oral evidence of the prosecution witnesses, NOP, TNO and SHI, the admissions made by the defendant and the evidence of the defence witness, IRT.
  1. [66]
    In addition to facts proved by evidence, I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant.
  1. [67]
    The burden rests on the prosecution to prove the guilt of the defendant, beyond reasonable doubt. There is no burden on the defendant, who is presumed to be innocent. I dismiss all feelings of sympathy or prejudice, regardless of who is involved and regardless of the nature of the allegations or charges.
  1. [68]
    I’m required to assess the credibility and reliability of witnesses and I may accept or reject such parts of the evidence as I see fit in fulfilling that fact-finding function.
  1. [69]
    I direct myself further as follows:
  1. [70]
    The defendant has not given 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 onus of proving the guilt to 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 gaps in the evidence led by the prosecution. It proves nothing at all and I do not assume that because he did not give evidence that adds in someway 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.
  1. [71]
    That the defendant has called evidence in this case (but not given evidence) does not mean that he assumed a responsibility of proving his evidence. The burden of proof has not shifted to him. The evidence of IRT is added to the evidence called for the prosecution. The prosecution has the burden of proving each of the elements of each of the offences beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case, before the defendant may be convicted.
  1. [72]
    Two separate charges have been laid against the defendant. I must consider each charge separately, evaluating the evidence related to that particular charge, to decide whether I’m satisfied beyond reasonable doubt that the prosecution has proved its essential elements. I will return separate verdicts for each charge.
  1. [73]
    The evidence in relation to separate offences is different and my verdicts need not be the same.
  1. [74]
    I direct myself that if I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the counts, whether by reference to her demeanour or inconsistency or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally. My general assessment of the complaint as a witness will be relevant to both counts, but I will have to consider her evidence in respect of each count when considering that count.
  1. [75]
    If I have some reasonable doubt about an element or elements of that particular offence, then I can find the defendant not guilty or I would find the defendant not guilty in relation to that count, but that does not necessarily mean that I cannot convict of any other count. If relevant, I have to consider why I have some doubt about a particular part of her evidence and consider whether it affects the way I assess the rest of her evidence; that is whether my doubt about an aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to any other count.
  1. [76]
    Preliminary complaint evidence is contained in the accounts given by the witnesses, NOP, TNO and SHI as to what each says the complainant, RRS, told them about the alleged offending against her by the defendant.
  1. [77]
    In relation to that evidence of preliminary complaint contained within that evidence given by those witnesses, I direct myself as follows. That evidence may only be used as it relates to the credibility of the complainant, RRS. Consistency between the account of the complainant about the alleged offence or offences and what the complainant said as reported by the witnesses, NOP, TNO and SHI is something I may take into account as possibly enhancing the likelihood that the complainant’s testimony is true.
  1. [78]
    In addition, I may also take into account any inconsistencies between the accounts given by the complaint witnesses, NOP, TNO and SHI, and the accounts as given by the complainant, RRS, in assessing the complainant’s credibility. I cannot, however, regard the things said in the out of court statements by RRS as proof of what, if anything, actually happened. In other words, evidence of what was said on those occasions to the witnesses, NOP, TNO and SHI may, depending on the view I take of it, bolster RRS’s credit because of consistency, but it does not independently prove anything.

Discussion

  1. [79]
    Taking careful account of the directions I have given myself, I conclude that the complainant is a witness of truth, insofar as she gives evidence of two separate incidents, one in 2013, and one in 2014, during which the defendant removed her underpants to around her knees (count 1), and her pyjama pants and underwear to around her knees (count 2), and brought his penis into contact with her vagina. I reach this conclusion, cognisant of the following: –
  1. (a)
    the complainant’s connection of the events of count 1 with the defendant’s birthday on 22 September 2013.  The evidence of TNO and IRT, which I accept, places the one sleepover period when the defendant and the complainant shared a bed in the complainant’s bedroom as either October or November 2013, and not the defendant’s birthday on 22 September 2013.
  1. (b)
    the asserted implausibility of the events of count 1 occurring in the complainant’s bedroom, with an open door, next to TNO and NOP’s bedroom.
  1. (c)
    the asserted implausibility of the events of count 2 occurring in the lounge room, with the lights on, some 10 to 20 metres from TNO, who was with a baby in the main bedroom.
  1. [80]
    Despite those issues that I have addressed, the complainant was, in my view, credible and reliable in her evidence in respect of both counts. In that respect the complainant accurately describes an erect penis, describes with some accuracy the defendant’s pubic hair (consistent with the limited nature of IRT’s evidence on that point as at July 2014) and the events, in each case, considered separately, in my view, impressed me as truthful recollections of actual occurrences, involving in each case a sexual encounter between the defendant and the complainant.
  1. [81]
    There are reservations however. In cross-examination, the complainant effectively conceded, despite her evidence-in-chief, that on each occasion, penetration did not occur; rather that the defendant tried to have sex with her i.e. penetrate her.
  1. [82]
    The complainant’s evidence tying the events of count 1 to the defendant’s birthday was clearly inaccurate or incorrect as I have previously identified.
  1. [83]
    The complainant’s descriptions, with respect to each of the two counts, of penetration having occurred, with her underpants (count 1), and her underpants and pyjama pants (count 2) at her knees, while her legs were together, appears in my view mechanically unlikely and is a part of her account which I am unable to accept to the required standard.
  1. [84]
    In the light of those concessions on cross-examination, the clear inconsistency of date and circumstance in respect of count 1, and the unlikelihood of penetration actually being effected as the complainant says in her 93A statement, given that her legs were together and her clothing was at her knees, in each case, lead me to conclude that I have a reasonable doubt as to the element of penetration in respect of each of the indicted counts of rape (counts 1 and 2).
  1. [85]
    That conclusion is, in my view, reinforced by the preliminary complaint evidence. NOP recalls the complainant saying that the defendant “tried” to have sex with her. TNO recalls the complainant saying that the defendant “shoved his penis into her” while SHI recalls the complainant saying the defendant “had sex with her”, with the mechanics unexplained.
  1. [86]
    I am entitled to take into account, of course, both the consistency and inconsistency, I should say, in respect of preliminary complaint evidence, and the effect of that evidence is that I’m not persuaded to the appropriate standard, beyond reasonable doubt, that the defendant effected penetration in respect of either of the incidents constituting counts 1 and count 2.
  1. [87]
    It follows that the defendant should be found not guilty of each of the counts of rape (counts 1 and 2).
  1. [88]
    However, pursuant to Criminal Code s.578(1), I must then consider in respect of each count, whether the defendant is guilty or not guilty of the natural alternative charge, which in each case, is a charge under the Criminal Code s.210, of indecent treatment of a child under 16 who is 12.
  1. [89]
    With respect to such a charge, the prosecution must prove that:-
  1. (1)
    the defendant dealt with the complainant.  The term “deals with” means “to have to do with”, “to act towards” or “to treat” and includes the touching of the child by the defendant’s hands or some other part of his body including his penis.
  1. (2)
    the dealing was indecent.  The word “indecent” bears its ordinary every day meaning, that is, what the community regards as indecent.  It is what offends against currently accepted standards of decency.  Indecency must always be judged in the light of time, place and circumstances.
  1. (3)
    the dealing was unlawful.  Unlawful means not justified, authorised or excused by law.
  1. (4)
    the complainant was under 16 years.
  1. (5)
    the complainant was under 12 years.
  1. [90]
    Consent is irrelevant.
  1. [91]
    In respect of each of the two counts, considered separately, I accept, beyond reasonable doubt, the evidence of the complainant that: –
  1. (a)
    the defendant’s penis on each occasion came into contact with the complainant’s vagina;
  1. (b)
    this was, on each separate occasion, a “dealing”.
  1. (c)
    in each case, I conclude that dealing was “indecent” within the ordinary everyday meaning of that word.  It’s not possible to conceive in my view of any other assessment of that contact other than it was “indecent” in those circumstances.
  1. (d)
    in each case, the dealing was “unlawful”.
  1. (e)
    the complainant was, at the relevant time of each incident (i.e. between 31 August and 1 December 2013 in respect of count 1, and between 4 July 2014 and 13 July 2014 in respect of count 2), under 16 years, and was also under 12 years.
  1. [92]
    I conclude, beyond reasonable doubt, that the complainant did not consent to the defendant’s “dealing” in each case, although that is of course irrelevant to the proof of a charge under Criminal Code s.210.
  1. [93]
    It follows that I find the defendant, YSO, not guilty of count 1, rape, but guilty of the alternative count of indecent treatment of a child under 16 under 12; and not guilty of count 2, rape, but guilty of the alternative count of indecent treatment of a child under 16 under 12.
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Editorial Notes

  • Published Case Name:

    R v YSO

  • Shortened Case Name:

    R v YSO

  • MNC:

    [2015] QCHC 7

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    29 Sep 2015

Appeal Status

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