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R v KAB[2017] QCHC 10

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

R v KAB [2017] QChC 10

PARTIES:

R
v

KAB
(Defendant)

FILE NO/S:

CCJ161/16

DIVISION:

Childrens Court

PROCEEDING:

Trial (Judge-only)

ORIGINATING COURT:

Childrens Court

DELIVERED ON:

21 April, 2017 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

21 April, 2017

JUDGE:

Dearden DCJ

ORDER:

  1. On count 1, indecent treatment of a child under 16 under 12, the defendant, KAB, is found not guilty.

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 one count of indecent treatment of a child, under 16, under 12 – where the defendant pleaded not guilty to the count – where the defendant was aged 12 years at the relevant time – where the complainant was aged 9 years at the relevant time – where  the defendant did not call nor give evidence  – whether the defendant is guilty or not guilty of the charge

LEGISLATION:

Evidence Act 1977, ss 21AK, 21AW, 93A

COUNSEL:

T Corsbie for the Crown

P Hardcastle for the Defendant

SOLICITORS:

Office of the Director of the Public Prosecutions for the Crown

Aboriginal and Torres Strait Islander Legal Service for the Defendant

  1. [1]
    HIS HONOUR: The defendant, KAB, is charged with one count of indecent treatment of a child under 16 under 12 in the following terms:

That, on a date unknown between the 31st day of December 2015 and the 6th day of April 2016 at Murgon in the State of Queensland, KAB unlawfully and indecently dealt with LBE, a child under 16 years, and LBE was under 12 years.

  1. [2]
    The defendant child pleaded not guilty and elected to proceed to a judge-only trial before me in the Childrens Court.
  1. [3]
    The defendant was born on 26 November 2003 and was aged 12 at the range of the alleged offence (exhibit B).
  1. [4]
    The complainant was born on 25 August 2006 and was aged nine at the date range of the alleged offence (exhibit B).
  1. [5]
    The agreed admissions concede that the defendant had capacity (pursuant to Criminal Code s.29 [2]) at the relevant time to know that he ought not touch the vaginal area of the complainant (exhibit B).
  1. [6]
    It was further admitted that the defendant and the complainant were known to one another (I infer at the date range of the alleged offence) – (exhibit B).
  1. [7]
    In respect of the count, the prosecution must prove, beyond reasonable doubt that the defendant: – (1) dealt with the complainant, (2) that the dealing was indecent, (3) that the dealing was unlawful, (4) the complainant was under 16 years, (5) the complainant was under 12 years.

The Evidence

  1. [8]
    The complainant took part in an Evidence Act s.93A interview with a police officer on 5 April 2016, and a section 21AK pre-record at Brisbane before Judge Farr on 8 November 2016. Both video recordings were played to me and constitute the bulk of the evidence in this trial.
  1. [9]
    In respect of the s.93A statement, I direct myself that the taking of evidence in this way for a child complainant 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 section 21AW of the Evidence Act.
  1. [11]
    The Crown case, in its entirety, consisted only of the s.93A interview on 5 April 2016 (exhibit 1 & exhibit A); the s.21AK pre-recording on 8 November 2016 (exhibits B & C); and the admissions (exhibit D).
  1. [12]
    The defendant did not give or call evidence.
  1. [13]
    Addresses were made by both defence counsel and prosecution.

Summary

  1. [14]
    The complainant’s evidence is that the defendant was staying over because one of her brothers had asked her mum if he could stay over (exhibit B, p.2); that the defendant slept in her bed and the complainant slept in her sister’s bed (exhibit B, p2); and that her sister slept in her mum’s room (exhibit B, p3).
  1. [15]
    The complainant said that the defendant touched her, during the night, on her “front part” (I have no difficulty inferring this was her vagina) – exhibit B, pp2 – 3.
  1. [16]
    The complainant says:

I went to sleep first … and then in the middle of the night, KAB woke up and touched me.

  1. [17]
    When asked:

Did KAB say anything when he did that?

  1. [18]
    The complainant said “nuh.”
  1. [19]
    When asked:

Did KAB know that you were awake?

  1. [20]
    The complainant said “no.”
  1. [21]
    When asked:

Did you have your eyes open or were they shut?

  1. [22]
    The complainant said “shut” (exhibit B, p4).
  1. [23]
    The complainant said she was touched underneath her undies, and when he did it, she said “stop” (exhibit B, p5).
  1. [24]
    During cross-examination in the s.21AK hearing, the complainant agreed that her mum’s boyfriend “MCA” had stayed over the night she was touched (exhibit C, T1-9).
  1. [25]
    The complainant gave evidence that she was sleeping on the top bunk and that the defendant:

…jumped up and touched me on the front part –

(exhibit C, T21 – 10 ll17 – 18). 

  1. [26]
    When asked:

…did you actually feel the bed moving when he got up onto the top bunk?

  1. [27]
    The complainant said “no” (exhibit C, T21 – 10, ll31 – 32).
  1. [28]
    The complainant agreed that she kept her eyes shut the whole time (exhibit C, T21 – 11, l5); and agreed that she did not see KAB (exhibit C1 – T1 – 11, ll25 – 29).
  1. [29]
    When asked:

And when you felt this touching, am I correct in saying this:  that there was no one actually in the bed with you?

  1. [30]
    The complainant said:

No one wasn’t on the bed with me –

(exhibit C, T21 – 11 ll33 – 34). 

  1. [31]
    When asked:

…so you really guessed it was KAB, didn’t you?

  1. [32]
    The complainant replied “yes” (exhibit C, T1 – 11, l36).
  1. [33]
    In re-examination examination, the following exchange took place between the prosecutor and the complainant: –

And how do you know it was KAB that were [sic] saying that do      ?   Because I – I heard his voice. 

So when did you hear his voice?

  1. [34]
    Answer:

When the bed was moving, and when he jumped up.

  1. [35]
    Question:

And what did you hear him say?

  1. [36]
    Answer:

I forgot –

(exhibit C, T1 – 12 ll23 – 29.

Directions

  1. [37]
    I set out the further directions which I must conduct these proceedings in accordance with as a judge-only trial.
  1. [38]
    I must reach my verdict only on the evidence, that is the s.93A and the s.21AK video recordings of the complainant, and the admissions.
  1. [39]
    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. [40]
    The burden best – rests on the prosecution to prove the guilt of the defendant beyond reasonable doubt. There is no burden on the defendant, who was 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. [41]
    I am 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 a fact-finding function.
  1. [42]
    I direct myself further as follows: –

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 of the defendant beyond a reasonable doubt.  And the fact that the defendant did not give evidence is not evidence against him.  It is – it does not constitute an admission of guilt by conduct and it may not be used to fill gaps in the evidence led by prosecution.  It proves nothing at all and I do 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. 

  1. [43]
    In respect of the transcripts provided, I have used them as aide memoires, but I have relied on what I saw and what I heard as the evidence in this trial.

Discussion

  1. [44]
    There is no issue that the complainant child was touched, as she describes, on her vagina;
  1. [45]
    That the touching was indecent, in accordance with community standards of indecency; and it was unlawful.
  1. [46]
    There is no issue that the child was under 16, and under 12.
  1. [47]
    The key issue is this – am I persuaded, beyond reasonable doubt, that the person who did the touching (i.e. the alleged offender) was KAB. Identification is for me to decide as a question of fact.
  1. [48]
    The case against the defendant rests entirely, in my view, on the purported voice identification of the defendant by the complainant.
  1. [49]
    I am required to direct myself as to the dangers of such identification processes, identified in High Court cases such as Domican (1992) 173 CLR 555.
  1. [50]
    The following issues are clearly raised on the evidence before me: –
  1. (1)
    There is no evidence as to how long the complainant has known the defendant.
  1. (2)
    There were other males (at least one adult, MCA, and some uncertain number of uncertain aged brothers), in the house that night.
  1. (3)
    The complainant, in her s.93A interview, denied that the offender said anything at all (exhibit AP.4).
  1. (4)
    The first reference to the defendant speaking at all was in re-examination at the conclusion of the s.21AK hearing (exhibit C, T1 – 12). 
  1. (5)
    There is no evidence as to what, if anything, was said, and for how long the offender spoke.
  1. (6)
    In cross-examination, the complainant said there was no one in the bed with her, which is in contrast to her evidence in re-examination saying that:

…the bed was moving –

(exhibit C, T1 – 12).

  1. (7)
    In cross-examination, the complainant agreed that she guessed the offender was KAB.
  1. [51]
    As I have identified, in order to find the defendant guilty of the charge, I would to be satisfied, beyond reasonable doubt, that he was the offender.
  1. [52]
    In the light of the issues that I have highlighted above at 1 – 7, I have no hesitation, as I have indicated above, in concluding the complainant was indecently dealt with on an evening within the time frame 31 December 2015 and 6 April 2016.
  1. [53]
    For the reasons that I have set out above at (1) – (7), I could not be persuaded, beyond reasonable doubt, that it was the defendant, KAB, who was the person who indecently dealt with the complainant. The conclusion therefore is that although the complainant was indecently dealt with, the Crown has failed to prove beyond reasonable doubt, on the evidence before me, that it was the defendant.
  1. [54]
    It follows that the defendant, KAB, is found not guilty of the offence of indecent treatment of a child under 16 under 12. The defendant is discharged.
Close

Editorial Notes

  • Published Case Name:

    R v KAB

  • Shortened Case Name:

    R v KAB

  • MNC:

    [2017] QCHC 10

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    21 Apr 2017

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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