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R v AKM[2017] QCHC 9

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

R v AKM [2017] QChC 9

PARTIES:

R
v

AKM
(Defendant)

FILE NO/S:

CCJ123/16

DIVISION:

Childrens Court

PROCEEDING:

Trial (Judge-only)

ORIGINATING COURT:

Childrens Court

DELIVERED ON:

20 June, 2017 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 June, 2017

JUDGE:

Dearden DCJ

ORDER:

1. On count 1, rape, the defendant, AKM, is found 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 rape – where the defendant pleaded not guilty to the count – where the defendant was aged 16 years at the relevant time – where the complainant was aged 5 years at the relevant time – where there is preliminary complaint evidence – 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:

K Overell for the Crown

A Cappellano for the Defendant

SOLICITORS:

Office of the Director of the Public Prosecutions for the Crown

Bosscher Lawyers for the Defendant

  1. [1]
    HIS HONOUR: The defendant, AKM, is charged with one count of rape, which alleges as follows: count 1, that, on a date unknown between the 1st day of April, 2014 and the twenty-seventh day of May, 2014, at Acacia Ridge in the State of Queensland, AKM raped GBG.
  1. [2]
    The defendant pleaded not guilty and elected as a juvenile to proceed to a judge-only trial before me in the Childrens Court. The defendant was a juvenile at the relevant time frame, aged 16 years.
  1. [3]
    The complainant, GBG, is the son of JAT and NBG and was born on 24 September, 2008 (Ex 1). He was five at the time of count 1. NBG was, at the relevant time, in a relationship with SCM, the mother of AKM.
  1. [4]
    In respect of a rape count (based on an allegation that a penis was inserted in the complainant’s mouth), the prosecution must prove, beyond reasonable doubt, that the defendant: –
  1. Penetrated the mouth of the other person
  1. To any extent
  1. With the defendant’s penis
  1. Without the consent of the other person.
  1. [5]
    Given the complainant’s age at the time (5 years), consent is irrelevant in these circumstances.

The Evidence

  1. [6]
    The complainant took part in an s.93A Evidence Act interview with police officer Gilbert on 22 June 2014, and an s.21AK pre-record at Brisbane District Court before me on 16 December 2016.
  1. [7]
    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. [8]
    In respect of the s.21AK proceedings, I direct myself in accordance with the provisions of s.21AW of the Evidence Act.
  1. [9]
    Evidence for the prosecution was also given by the complainant’s mother, JAT, the complainant’s maternal grandparents, SET and KDT, and the complainant’s father NBG. The defendant neither gave nor called evidence.

Summary of evidence

GBG

  1. [10]
    The complainant was interviewed by police officer Cherrilyn Gilbert on 22 June, 2014. During that interview (Ex 2, Ex A), when asked whether he had told his mother anything, he identified that it related to someone whose name he initially couldn’t remember, then recalled that it was AKM. The complainant then said that “he (a reference to AKM) put his doodle in my mouth”. The complainant identified AKM’s mum as SCM (Ex A p4).
  1. [11]
    On further questioning about the incident, the complainant said, of AKM, that “he’s playing games and he said want me to put doodles in your, a doodle in your mouth…and I said ‘no’”. The complainant went on to say “and he just did, straightaway, he just did, that’s all.” (Ex A p5)
  1. [12]
    When asked by the police officer “What were you doing?” the complainant said “I was um playing. And then he’s um pulled his pants down and put his um doodle in my mouth”. (Ex A p5).
  1. [13]
    The complainant was asked later in the interview “And tell me how he pulled down his pants?”, to which the complainant replied “Cause he likes stuff that wants to do gross stuff to me.” The complainant was then asked “What do you mean when you say he likes to do gross stuff to you” to which the complainant replied “Because he’s a mischief boy”. On being pressed for further information, the complainant replied “I don’t know” and “I forgot”. (Ex A, p6)
  1. [14]
    The complainant was then asked “What happened when his doodle was in your mouth?” The complainant’s reply is marked indistinct in the transcript, although I heard the words “With what” said twice by the complainant. The police officer said “I don’t understand what you?” and the complainant says (according to the transcript) “Off-white”, to which the police officer responds “Off-white? What do you mean?” and the complainant, when pressed, twice responds “I don’t know”. (Ex A, p7) There is a further exchange where the police officer asked “What happened after AKM put his doodle in your mouth?” to which the complainant says “I don’t want to – I don’t know”. The police officer then says “Just don’t want to talk to me?” and the complainant replies “I just forgot” (Ex A p7)
  1. [15]
    When the police officer questions the complainant about another name for a doodle, and what is done with it, the complainant, although acknowledging that he had a doodle, says that he doesn’t know. When asked by the police officer “Are you a bit embarrassed to talk to me about it?”, the complainant nods his head. (Ex A, p8)
  1. [16]
    The complainant gave pre-recorded evidence before me on 16 December, 2016 (Ex B, Ex C (transcript)). In his evidence in chief, he said that a doodle is used for peeing (Ex C, 1-4), and said that he was sleeping when asked about saying in the interview AKM put his doodle in his mouth. (Ex C, 1-4)
  1. [17]
    During cross-examination, the complainant said that he had only met AKM three times (Ex C, 1-5), and agreed that AKM was the son of his dad’s girlfriend SCM. (Ex C, 1-5) The complainant agreed that the first time he told anyone about AKM putting his doodle in his mouth was dinner at his grandparent’s house. (Ex C, 1-7) He was insistent that he told his grandma and his grandpa, not his mum, at that time.
  1. [18]
    When questioned about the use of the word “off-white” in the police interview, the complainant said initially that he had said “Off what”, then said “it was just a random word”, claimed that he had never used that word before, and denied that anyone had talked to him about the word “off-white”. (Ex C, 1-8) When pressed, he agreed that he did not remember the first meeting with AKM very much (Ex C, 1-8), but was adamant that when he spoke about what AKM did, it was not a joke. He denied telling his mother and grandparents that it was a joke, and could not recall telling his father that it was a joke. When asked, in conclusion, at the cross examination “GBG, was it a joke?” the complainant answered “No” and shook his head vigorously. (Ex C, 1-9)

JAT

  1. [19]
    JAT is GBG’s mother. GBG was born on 24 September, 2008, and his father is NBG. JAT was in a de facto relationship with NBG for nearly 13 years, breaking up on Valentine’s Day, 2014. She and NBG moved apart in March, 2014, once their house was sold, and she moved in with her parents in Caloundra and NBG moved into a house nearby. (T 1-12)
  1. [20]
    The access arrangements with NBG were week on/week off, with changeover on a Friday afternoon after school. JAT found out on Mother’s Day 2014 (11 May 2014) that NBG was in another relationship, with a SCM. (T 1-13-14)
  1. [21]
    JAT became aware that her children (RFG and GBG) had been to a sleepover at SCM’s house, only when she got the children back from access on 23 May, 2014. (T 1-14)
  1. [22]
    JAT first became aware of the allegation against AKM on 26 May, 2014, at the dinner table at her mum and dad’s, when GBG “Just blurted it out at the dinner table”. JAT gave evidence that GBG said “AKM put his doodle in my mouth”. (T 1-15)
  1. [23]
    JAT gave evidence of a subsequent disclosure by GBG to her the next day. She gave evidence that she “did ask him what had happened and he did say that he was on the bottom bunk and AKM was on the top and, yeah, he came down on his bunk.”
  1. [24]
    When asked by the prosecutor “And did he say what happened when AKM came down onto his bunk?He said that AKM didn’t want to get the bed dirty and, I mean, dirty, what do you mean dirty?  And he said don’t want to get it brown, like the colour brown.  And then he said that AKM put his doodle in his mouth.  He also did mention his bum, as well.  His bum and his face, so I’m not – I’m not really sure what happened, and then he said that he put his hands on GBG’s shoulders to push him down.  And GBG showed me how it was done, like, he sort of, you know, got on me and pushed my shoulders back.” (T 1-16)
  1. [25]
    In cross-examination, JAT confirmed that she was present at the dinner table when GBG made his disclosure on 26 May, 2014. (T 1-19) but was not present during any disclosures to her parents subsequently. (T 1-19) JAT did not recall any discussion with GBG of the colour “off-white” and denied that GBG had ever said that he was joking about saying that AKM had put his doodle in GBG’s mouth. (T 1-20)
  1. [26]
    In re-examination, JAT said that, after discussions with Child Safety, she went to the police on 19 June, 2014. (T 1-20)

KDT

  1. [27]
    KDT gave evidence that she is the mother of JAT, and that JAT and her children had moved into her house where she lived with her husband, SET, in Caloundra, after JAT broke up with her ex. (T1-21-22)
  1. [28]
    KDT recalls a disclosure at dinner by GBG on 26 May, 2014, in these terms:

“AKM put his doodle in my mouth.  And he was very heavy.  And then he told me to go and get on another bed with him…so it doesn’t get dirty”. In a subsequent conversation with GBG, he added “Just about how he was heavy”. (T1-23)

  1. [29]
    In cross-examination, KDT denied any conversation with GBR about the colour “off-white”. (T1-23)

 SET

  1. [30]
    SET gave evidence that he is married to KDT, and that JAT is his daughter. SET recalled a conversation at the dinner table on 26 May, 2014, when JAT and her children were living with SET and KDT. He recalls that GBG said “Oh, I stayed in AKM’s room. And he put his doodle in my mouth.”, and further “Only that he couldn’t get into the bedroom where the parents – the adults were.” T 1-25), because the door was locked. SET had no further conversation with GBG after that. (T1-25)

 NBG

  1. [31]
    NBG gave evidence that he was the father of RFG and GBG, that JAT was their mother, and that he had been in a relationship with JAT for 12 years which had broken up on Valentine’s Day, 2014. He and JAT moved out of their house when it sold in March, 2014. (T1-27)
  1. [32]
    NBG gave evidence that the children lived week on/week off with him and JAT, and that he commenced a new relationship with SCM on 11 May, 2014. He stated that SCM lived in Acacia Ridge, and that he and his children RFG and GBG visited the house at Acacia Ridge overnight for 24 hours in May, 2014, about three or four weeks into the relationship. This was the first visit by the children to that house. RFG stayed in KGM’s room and GBG stayed in AKM’s room. (T1-28).
  1. [33]
    NBG gave evidence that he and his children travelled down mid-morning on the Saturday, and stayed Saturday night. The children played on the trampoline, played with the dogs, on the Xbox and watched movies, and went to bed around 10.30 – 11pm. KGM and AKM’s bedrooms were right beside the bedroom NBG shared with SCM. (T1-29) NBG said that his bedroom door was open a slight bit, that he wasn’t interrupted during the night, and that the children got up reasonably early, about 6 or 6.30am. (T1-30)
  1. [34]
    NBG said that the children only visited that house on one other occasion, on Father’s Day. (T1-31)
  1. [35]
    In cross-examination, NBG confirmed that his children, in May, 2014, had only met SCM’s children once; that the visit to Acacia Ridge was on a Saturday, that they stayed the Saturday night, and left on the Sunday. (T1-31).
  1. [36]
    NBG did not see or hear any unusual behaviour between GBG and AKM, or from any of the children, over that weekend, and GBG did not report any sexually inappropriate behaviour. There were no concerns expressed by GBG in the five days at NBG’s house after they returned to Caloundra, before going back to JAT. (T1-32).
  1. [37]
    NBG gave evidence that he had spoken to GBG about the complainant and GBG said “I’m only joking, Dad”. (T1-32)
  1. [38]
    On re-examination, NBG asserted that GBG had said on several occasions that he was only joking, and that GBG had got into trouble, although he wasn’t spanked. Disturbingly, NBG attested to the following conversation:

“I did discuss clearly that what he’s been saying is wrong and that lies, you know, doesn’t help anybody telling – telling lies.  That’s not the first time he’s said things like that.  He does carry on sometimes with stories.  Being about five at the time, so       “ (T1-33)

  1. [39]
    When asked “Has he ever said that someone’s put a doodle in his mouth, before?” MNBG said “No, but he says things like, you know, “I flashed my doodle, Daddy, at school” “A birdie touched my doodle.” Just random stuff like that. Even when JAT and I were together, he had things about bums and doodles, being a four or five year old, so he was always happy to say quite outlandish things about his – his doodle.” (T 1-34)

Directions

  1. [40]
    I set out the further directions with which I must conduct these proceedings in a judge-only trial.
  1. [41]
    I must reach my verdict only on the evidence; that is the s.93A and s.21AK video recordings of the complainant, and the oral evidence of the prosecution witnesses JAT, SET, KDT and NBG.
  1. [42]
    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. [43]
    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 charge.
  1. [44]
    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. [45]
    I direct myself further as follows:
  1. [46]
    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 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. [47]
    Preliminary complaint evidence is contained in the accounts given by the witnesses, JAT, SET and KDT as to what each says the complainant told them about the alleged offending against him by the defendant.
  1. [48]
    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. Consistency between the account of the complainant about the alleged offence and what the complainant said as reported by the witnesses JAT, SET and KDT, is something I may take into account as possibly enhancing the likelihood that the complainant’s testimony is true.
  1. [49]
    In addition, I may also take into account any inconsistencies between the accounts given by the complaint witnesses, JAT, SET and KDT, and the accounts as given by the complainant, GBG, in assessing the complainant’s credibility. I cannot, however, regard the things said in the out of court statements by the complainant as proof of what, if anything, actually happened. In other words, evidence of what was said on those occasions to the witnesses, JAT, SET and KDT may, depending on the view I take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything.
  1. [50]
    I direct myself that transcripts provided are only aids, and I have formed my own conclusions about what I saw and heard, making appropriate amendments to the supplied transcripts where necessary.

Discussion

  1. [51]
    Taking careful account of the directions I have given myself, I conclude that the complainant is a witness of truth, insofar as he gives evidence of the incident which occurred, I infer, on Saturday evening 17 May, 2014, during an access period which involved travel by the complainant, his sister, and their father NBG, to the residence of SCM, mother of the defendant, where the complainant and his family spent the night.
  1. [52]
    I reach this conclusion, cognisant of the following matters: –
  1. (a)
    It is argued that the allegations are implausible, given that GBG says in the s.21AK hearing that it happened at night, while he was sleeping, and had his mouth open. However, that hearing occurred on 16 December, 2016, 2 ½ years after the s.93A interview, which is a very long time for a child who was 5 years old at the time of the alleged events. In my view, the version of events given by GBG in the s.93A interview, although brief and without a lot of detail, are plausible, believable and credible. There is, in my view, a clear explanation for differences in the accounts between the s.93A interview and the s.21AK hearing – namely the effluxion of time and the effect on recollection for a very young child.
  1. (b)
    It is argued that that GBG was evasive on detail in the s.93A interview, when pressed for detail. With respect, that presentation, I consider to be entirely consistent with a young child talking about extremely embarrassing matters to a total stranger.
  1. (c)
    The apparent concern in the s.93A interview about AKM stealing iceblocks; the lack of complaint initially to his father, and to his mother after returning from access, as well as first reporting the incident at a family dinner approximately one week after the incident, are in my view not unusual for a young child, and raise no concerns about either credibility of reliability.
  1. (d)
    I accept, as Ms Cappellano submits, that there are other inconsistencies, including differences as to who was told, and when; as to how many times he had met SCM’s family; and there are extra details in the preliminary complaint accounts that are not provided in GBG’s direct evidence. There is also the curious issue of the reference to “off-white” which I initially heard as “off what”. However, all those matters are, again, explicable by the very young age of the complainant at the time of the incident, and the lengthy delay until the s.21AK hearing. None of these matters cause me to doubt the credibility and reliability of the central component of the complainant’s account, namely that the defendant put his penis in the complainant’s mouth.
  1. (e)
    In respect of the evidence of NBG, although I have no reason to doubt his evidence about the events of the weekend at SCM’s Acacia Ridge house, I was deeply concerned in respect of his conversations with GBG during which, on NBG’s account, GBG said that he was joking. On one view of this evidence, it could be considered to be a material interference with a Crown witness, which is, of course, extremely serious. It clearly should not have occurred. That being said, even if NBG’s evidence about these conversations are accepted, it has to be seen in the context of a young child, talking to his father about interactions with his father’s partner’s children, in a situation where his father is still in that relationship. There is such a power imbalance and power dynamic that I put no weight on any assertion that these conversations represent, in effect, a withdrawal of the complainant. In that respect, GBG was adamant in cross-examination that his evidence that AKM put his doodle in GBG’s mouth was not a joke.
  1. (f)
    Even if NBG’s evidence about GBG’s references to flashing his doodle at school, and a bird touching his doodle are accepted, GBG has never previously made any claim of sexual misconduct in respect of his, or anyone else’s doodle, other than the incident with AKM. This evidence did not negatively impact on my assessment of GBG’s credibility or reliability in any way.
  1. (g)
    The evidence of NBG does confirm the surrounding circumstances of the alleged offending, and directly confirms the opportunity the defendant had to commit the offence.
  1. (h)
    I consider that, on the material issue of penetration of the complainant’s mouth by the defendant’s penis, the complaint witness’s evidence is supportive, and any inconsistencies do not detract from the complainant’s credibility or reliability on that central issue.
  1. (i)
    Although the defendant did not give evidence, which is his right, and he does not carry any onus to prove his innocence, it was never specifically put to GBG that the defendant did not put his doodle in GBG’s mouth, and there is, of course, no sworn evidence from the defendant.
  1. [53]
    In the context of the issues that I have just addressed, the complainant was, in my view, credible and reliable in his evidence in respect of the count of rape. I consider that his evidence on the material issue, that is, whether there was penetration of his mouth by the defendant’s penis, was unshaken in cross-examination and should be accepted, beyond reasonable doubt. Given that GBG had no capacity to consent, I consider that the Crown has proved all the elements of rape beyond reasonable doubt.

Conclusion

  1. [54]
    It follows that I find the defendant, AKM, guilty of count 1, rape.

Order

  1. [55]
    On count 1, rape, the defendant, AKM, is found guilty.

 

 

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Editorial Notes

  • Published Case Name:

    R v AKM

  • Shortened Case Name:

    R v AKM

  • MNC:

    [2017] QCHC 9

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    20 Jun 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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