The Queen v RT[2018] QCHC 24

CHILDRENS COURT OF QUEENSLAND

1. [1]
   The defendant (who I refer to when recounting evidence as “T”) is charged with, and pleaded not guilty, to the following offences:^[1]

Count 1: Rape

Count 2: Rape

2. [2]
   The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury.^[2]

General

3. [3]
   The burden rests on the prosecution to prove the guilt of the defendant. Of course, there is no burden on a defendant to establish any fact, let alone his innocence. The defendant is presumed to be innocent. For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt every element that goes to make up the offence charged and similarly exclude any possible defence.

4. [4]
   Since there are two charges, I will consider each charge separately, evaluate the evidence relating to that particular charge to decide whether I’m satisfied beyond reasonable doubt that the prosecution has proved its essential elements. Any doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one count, will be taken into account in assessing the truthfulness or reliability of other counts and her evidence generally.

5. [5]
   The circumstances of the alleged offending are different, but my general assessment of witnesses will be relevant to all counts, so that if I have a reasonable doubt about one aspect of evidence that will be relevant to the other count.

Evidence

6. [6]
   The complainant (who I will also refer to as “Ki” when recounting evidence) was born on 7 September 2000 and was aged 17 years old as at 13 December 2017. Her testimony included her written statement to police made on 13 December 2017.^[3]  I have had regard to that recorded evidence, which was read during the course of the trial.  I received a copy of the transcript as an aid only.

7. [7]
   In addition, pre-recorded evidence was taken from the complainant on 16 August 2018.^[4]  At that time the complainant had her evidence taken by an audio/visual link between a separate room and the courtroom.  There was an independent support person sitting in the room, and no other person, and I am satisfied that the complainant was unable to see the defendant who was present in the courtroom at the time.  The court was closed during the pre-recorded evidence and when the complainant’s statement was read, and evidence replayed during the trial.

8. [8]
   All of these measures, used for taking and showing of the complainant’s evidence were in accordance with the standard and routine procedure of the court.^[5]  I assess this evidence in the same way as the other probative evidence in the case.

Previous contact

9. [9]
   The complainant described her relationship with the defendant as ‘a very close friend of mine’ and that she was attracted to him ‘as a friend’.^[6]  They had previous social media and flirtatious interaction, including sharing a kiss about a year before, but otherwise denied being ‘intimate together’.  The defendant similarly described a platonic relationship over Snapchat or FaceBook social media, and described how they also met on the beach shortly after his mother died, and there talked and ‘had a little kiss’.  The complainant and defendant passed each other in January 2017 in a shopping centre and later talked at a youth music festival in October 2017. 

10. [10]
    Defence counsel argues that it was significant against this background that the complainant had specifically invited the defendant to the gathering, and later following him up, as indicia of unresolved issues between them. This seemed to me to be highly speculative and doubtful. Indeed, the complainant denied defence counsel’s suggestion that she was attracted to the defendant, and invited him to the beach for ‘something to happen’ before she left for Sydney to live.^[7]

Sobriety

11. [11]
    In her statement the complainant described that she drank alcohol and had dinner with her girl friends, (who I refer to as “Da”, “De”, “Ka” and “L”) at home before going to the beach on 12 December 2017. She described her state of sobriety during the evening as follows:

“9. I was drinking whisky and coke.  I made my drinks myself.  I was drinking out of a red plastic cup, I only put two coke sized lids of whisky into my cup and filled the cup to the top with coke.  I had a total of three cups of drink in five hours.  I also drunk water in-between.  I also cooked a meal for my friends we had chicken nuggets, they were more like Chicken Snitzels as they were big and I ate about six of them.  I would say I was giggly but not drunk.  I can remember everything that was happening and I was in control of everything I was doing.”

12. [12]
    I accept the complainant was drinking bourbon and coke during the evening. Defence counsel argues that the complainant became increasingly jovial, boisterous, dancing, and disinhibited. I accept that was the case, but she was not so intoxicated to lose control over her behaviour or impair memory. None of the witnesses testified that she demonstrated indicia of impairment by intoxication, for example, that she was unstable on her feet, or incoherent in her behaviour or speech immediately before and after separation from the group with the defendant at the beach.

13. [13]
    The complainant described that her brother (who I refer to as “N”) drove her and her friends Da, De, Ka and L to Holloway’s Beach, and later greeting the defendant and his friends, who I refer to as “F “and “C”, later that evening on 12 December 2017, and the events which followed:

14. [14]
    The defendant accepts that he kissed and touched the complainant while lying down, but said the contact was mutual. He denies that he touched her as she described when standing. F, who was lying next to the complainant, accepted that he ‘grabbed her ass’, but he did not see, nor did others see, the defendant do so.  I think the complainant is mistaken about the defendant’s touching her buttocks at this time.

15. [15]
    During her cross examination, the complainant denied she was ‘drunk’, and described her state as: ‘I was fine.  I was tipsy, but I knew what was going on.’  She candidly agreed that she was dancing including ‘twerking’ to lewd musical lyrics, such as “Lick my pussy.  Lick my Crack”, and calling out “BBC” being an acronym for “big black cock”.  She also accepted that she had pulled down her top in front of the girls, with her back to the boys, and suggested going skinny dipping with the girls.

16. [16]
    This behaviour was more or less described by the others witnesses, including the defendant, present at the time. The group were variously dispersed around the bonfire,^[8] and were also listening to music, drinking, interacting and dancing.  There were some differences describing each other drinking during the evening, including the complainant’s drink preparation, but I accept that there was little material difference in her observable behaviour.

Waterside

17. [17]
    Then the complainant described how she and the defendant separated from the group as follows:

“15. Da was up doing some cartwheels and cheerleading stuff and was attempting to teach the boys some backflips and things.  I think the time was about 12.30am, I saw that T was on his own closer to the water and I went down to see if he was okay.  I stood in front of T and faced him and asked if he was okay.  T grabbed me by two hands around my throat and forcibly kissed me on the lips.  I kissed him back, but he was squeezing my neck really tight and I pushed him away.”

18. [18]
    When cross-examined, Ki, clarified that the defendant “grabbed me by the neck forcibly and kissed me,” and then had “One hand was around my neck.  The other one was squeezing my nipple very hard”, but she denied that her top was down showing the defendant her breasts.^[9]  She agreed to the proposition that “At this point T was rubbing you on the outside of your shorts between the legs?” saying “Forcibly yes, when I told him not to and pushed him away.”

19. [19]
    In contrast, the defendant denied that he put both hands around Ki’s neck and forcibly kissed her.^[10]  He testified that while alone with Ki at the water’s edge:^[11]

20. [20]
    The other witnesses had different vantage points and variously described this interlude between the complainant and the defendant, but none of them testified about exposed breasts at that point, and the defendant grabbing or licking her breasts, and mutual rubbing as described by the defendant. Their evidence about light, distances and position varied but it is tolerably clear that no witness was able to see the two clearly or closely. One of the boys, C, called out in effect “Go get a room”.  But I am not satisfied that one of the girls yelled out  “Ki is getting dick,” or something like that, which was attributed by Da to Ka; but this was denied by Ka,^[12] and not supported by the others present.

Count 1 – Rape (digital)

21. [21]
    The complainant then states:

22. [22]
    This stage of the complainant’s evidence is relied upon as constituting penetration associated with count 1.

23. [23]
    In contrast to the complainant’s testimony, the defendant testified as follows:^[13]

24. [24]
    The complainant denies that she consented to the defendant putting his hands inside her pants and putting his finger in her vagina.^[14]  She insisted that she told the defendant to stop, and she ‘pushed him away’.^[15]  Her pre-recorded evidence is consistent with her statement, especially the timing of her remark to “Stop, come on, we are just here to talk” seemed to coincide with the last penetration of his finger into her vagina, as she pushed him away.  She denies any mutual sexual touching, but in response to the question “But you kept making out?”, she said “He kept forcibly kissing me, yes”.^[16] 

25. [25]
    At some point, the defendant propositioned her, as put to the complainant in cross-examination – ‘T asked you if you wanted to fuck?’, and she said “And I said no”, which is consistent with the defendant’s recall but does not feature in the complainant’s statement.

Count 2 Rape - (carnal knowledge)

26. [26]
    In her statement, the complainant goes on to describe the persistent and escalating aggressive and rough conduct relied upon for count 2 as follows:

27. [27]
    In stark contrast the defendant, described a course of consensual intercourse after the complainant positioned herself on her hands and knees on the sand. He testified as follows:^[17]

28. [28]
    It is not clear on the defendant’s evidence how the complainant’s shorts were removed. In any event, the complainant denied that she said ‘Fuck it’, and had consensual intercourse as described by the defendant.  The defendant’s version is also inconsistent with the presence of sand on the complainant’s face, hair, chest and legs - as she agreed during cross examination:^[18]

29. [29]
    The complainant’s clothes were seized at approximately 3.15am on 13 December 2017, and underwent DNA analysis.^[19]  DNA is a complex chemical found in most cells of the human body.  It carries genetic information which determines the physical and chemical characteristics of a person.^[20]  In relation to DNA analysis, the prosecution and the defence have admitted and therefore it is taken as proved that:^[21]

30. [30]
    The complainant described how she returned to the others at the bonfire and hearing the defendant say to one of the other boys – ‘Alright C your turn’.  Another girl, K, also testified that ‘He said along the lines of, ‘C, it’s your turn now.’^[22]  The defendant denied saying anything like that,^[23] and I remain doubtful that the defendant uttered those words. 

31. [31]
    The complainant than recalled that:

Distressed condition

32. [32]
    The Crown also rely upon the evidence of the complainant’s distressed condition, as described by the same witnesses, in support of the evidence that the complainant was raped by the defendant.

33. [33]
    One of the boys, boy, F, testified that he saw the complainant:^[24]

“came back probably five minutes later and then she wanted to leave.  … she started kicking out the fire and saying, like – like, “We’re leaving.”  And, yeah, she just looked, like – yeah, she just looked like she wanted to leave.  [Asked how she looked] … A bit upset. ...  Just kicking out the fire, just wanted to leave straight away.  Didn’t know why.”

34. [34]
    Other similar observations were made by L, De, Da, Ka and C in varied perspectives to see the complainant’s face at the beach, and later observations of the house. They variously described the complainant: walking (quickly with a large gait) or running, upset and angry, upset in the face, very shaken up, crying or tears in her eyes or watery eyes and not crying or breaking down in tears, head down, hands on her face, packing up and gathering our belongings, panicked, rushing through her words and was trying to pick up everything really fast, and red marks on her legs and then she had, like, raised welts. I have included the testimony about distressed condition in the context of preliminary complaint evidence below.

35. [35]
    The defence argue that there are other explanations for the distressed condition at the time, especially the complainant’s expression of regret for her infidelity, or her disappointment in the defendant’s premature ejaculation. I do not accept the submission. It seems to me that the evidence shows the complainant’s immediate, spontaneous and genuine distress on her return to the bonfire, which provides strong support of her account. It was a greater reaction and incongruous with the defendant’s suggestion of regret or disappointment. And I am unable to discern any indicia of pretence on the complainant’s part.

36. [36]
    The complainant’s brother did arrive at the beach to then collect the complainant and her girlfriends, after briefly confronting the defendant and his friends. The complainant also testified about returning home, talking to her brother, friends, and calling a telephone helpline and police, before telling her mother and going to the hospital. As with the other girls, the complainant also stated that she showered because ‘I just felt so dirty and disgusting.  I just needed to wash it all off.’^[25]

37. [37]
    She described her condition as follows:

“47. My upper thighs had massive big red welts and are now bruised from where T pulled my shorts down.  I have the cut on my vagina and my vagina has been bleeding from the assault.  In the hospital I was throwing up and I am still feeling constantly like I’m going to throw up again.  I’m emotionally and physically drained from the attack I thought T was my friend.”

38. [38]
    During her evidence, the complainant marked areas of faint bruising on photographs taken some time later on 14 December 2017.^[26]   The complainant’s mother also testified that when the complainant woke her in the early hours of 13 December 2017 she could see she had all red welts across the front of her legs and red marks, and she demonstrated an area across the top of her thighs and front of her upper thighs.^[27]

39. [39]
    Dr Griffiths gave expert evidence. I am satisfied that he is a duly qualified medical practitioner employed by Queensland Health as a forensic medical officer. He testified about relevant matters within the field of his expertise. The evidence was not subject to challenge or contradiction.

40. [40]
    I am cognisant that his expert opinion is based on his observations and reports of the complainant during an examination. Leave was granted to the witness to refresh his memory from his notes, which I am satisfied were created within 24 hours of the examination while matters were fresh in his memory. The doctor found no signs of injury, except redness that was in both of the inguinal (groin) areas, which he said the complainant had earlier identified. This was like ‘chaffing’ and consistent with skin on skin rubbing. He found no injury to the complainant’s vagina, but he considered this would not be uncommon in his experience.

41. [41]
    These observations of Dr Griffiths, during his examination from about 8:25 am on 13 December 2017, are significantly less obvious than, but were consistent with, those seen by the complainant’s mother when awoken about 8 hours earlier - just after midnight. I am satisfied that those facts have been sufficiently established to afford significant weight to the doctor’s opinion. There is no other evidence, which casts doubt on his expert view.

Preliminary Complaint

42. [42]
    I have considered evidence of the preliminary complaint for the limited purpose of assessing consistency or inconsistency of the complainant’s statement or conduct^[28] to buttress or otherwise the complainant’s credibility about the commission of the offence,^[29] but it has no probative value or capacity to independently prove anything.^[30]

43. [43]
    For this limited purpose I compare the other witnesses account to the effect that:

44. [44]
    When comparing these accounts with the evidence of the complainant, in the limited way permitted, it seems to me that the accounts of the complainant’s immediate complaints, conduct and flight from the beach were entirely consistent with the complainant’s evidence in relation to the conduct subject of count 2.

45. [45]
    Defence argued that all accounts differed between the preliminary complaint witnesses. Amongst other differences, he pointed to Ka’s reference (and affirmed by L) that the complainant said that in the secluded area they chose to sit down and that she kicked him before he tried to or before he penetrated as being disordered and inconsistent with the complainant’s version.

46. [46]
    Inconsistencies as between the witnesses and vis-à-vis the complainant’s evidence do emerge in the accounts at the house. The mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time. So much is clear when comparing the accounts at the beach to those at the house, and when comparing the accounts of N, the girls and the complainant’s mother. Contextually, at the house, the complainant’s friends (Da, De, Ka and L) were focused on consoling and counselling her about what to do, including calling the help line and telling her mother. As defence counsel described the atmosphere was of ‘big drama’.  It seems to me that that dynamic accounts for the recipients of her complaint, although all present to hear her, being less focused on the detail of her complaint, not being present at the same time, and recalling sightly different versions.  However, the accounts of the other witnesses are still confined to the conduct relied upon in count 2.

47. [47]
    When these matters are factored, it seems to me that the other witnesses’ accounts of the complainant’s statements and conduct do buttress the complainant’s credibility about the commission of the offence especially in relation to count 2. The nature and extent of these events apparently overwhelmed the earlier conduct relied upon for count 1.

Cross-Examination as to motive to lie

48. [48]
    In cross-examination, the complainant was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant in particular that her complaint was spawned by the complainant’s personal embarrassment and regret for her infidelity, or her disappointment in the defendant’s premature ejaculation. On the contrary, the prosecution also submits that the complainant does not have any motive to lie.

49. [49]
    Of course, it is for the prosecution to satisfy me that the complainant is telling the truth.^[46]

50. [50]
    It seems to me that the complainant’s immediate and spontaneous reaction to the events as she did with returning to the bonfire with haste, emotional distress with her face in her hands, disclosure of the offending conduct, packing up and leaving - are disproportionate and incongruous to the motives attributed by the defence. Defence counsel also argued that the complainant’s initial complaint had set the matter on a course that could not be stopped. He argued in effect that ‘what is said cannot be unsaid’, and the motion started at the very first utterance of ‘rape’.  That argument, it seems to me, is artificial and indecorous.  There were multiple opportunities for the complainant to retreat from or stop an insincere complaint - she need not have made the help line call, or woken her brother or her mother, or even attended hospital for intimate examination.

51. [51]
    I reject the motive to lie put forward on behalf of the defence, and I am unable to discern any other perceptible reason why a person may make a false complaint, even unknown by the defendant.

52. [52]
    Further, contrary to the defendant’s submissions, in my view the complainant’s testimony and conduct is not ‘nonsensical’. She did withstand the rigour of cross-examination, and her version was entirely plausible having regard to her tactile character, friendship with the defendant, disinhibited state and immediate complaint and distressed condition.

53. [53]
    Her written statement to police recorded causative events at the earliest opportunity, and it was essentially consistent with her pre-recorded evidence, preliminary complaints, and physical presentation. The accounts of the preliminary complaint witnesses are not infallible indicators of the complainant’s reliability. In my view the nature and extent of the inconsistencies do not warrant the rejection of the complainant’s evidence. It seems to me that some inconsistency, cross-pollination and blurring is to be expected in the unusual circumstances of this case where the complainant spoke to others together and in groups over a short time. The complainant impressed me as a trusting, straightforward, sincere, unrehearsed, spontaneous, honest and reliable witness. Her account on critical maters was generally consistent with the other witnesses who were present from various perspectives and distances, and other objective and expert evidence.

54. [54]
    I am satisfied that the complainant was both truthful and reliable in her evidence.

Defendant gave evidence

55. [55]
    The defendant was not obliged to give evidence, or call witnesses to testify or otherwise produce evidence. That does not shift any evidentiary burden to him. The prosecution retains the burden of proving each of the elements of the offence beyond reasonable doubt, having regard to the whole of the evidence.

56. [56]
    This is a case often described as one of “word against word”. But this does not call for a choice of the competing evidence as between the complainant and the defendant. Indeed, it is not a pre-requisite to an acquittal for the defendant to be believed.^[47] 

57. [57]
    The defendant presented as a calm and rehearsed witness, but I think he exaggerated the mutuality of the complainant’s lewd conduct. I find myself unconvinced about the defendant’s evidence after comparing it to other evidence, including the complainant’s evidence, which I do accept for the reasons discussed above. I’ll set it aside, and consider on the rest of the evidence whether I’m satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.

Count 1 - Rape

58. [58]
    The prosecution must prove the elements of the offences and exclude any possible defence beyond reasonable doubt.

59. [59]
    Section 349(1) & (2)(b) of the Criminal Code provides for the offence of rape when a person uses his finger to penetrate the vagina of another person without consent.  Section 349 of the Criminal Code provide as follows:

“349  Rape

Consent

60. [60]
    There is no dispute that the defendant penetrated with his finger into the complainant’s vagina on 13 December 2017 at Holloways Beach in Queensland, but “consent” is also relevant to this case.

61. [61]
    Consent means consent freely and voluntarily given by a person with the cognitive capacity to give consent.^[48]

62. [62]
    There is no dispute that the complainant had the requisite cognitive capacity to give consent. The complainant had freely walked with the defendant to a very dark area under a palm tree and out of sight of the others. During the continuation of mutual affection, the defendant put his hands in her pants and inserted a finger twice into her vagina while unbuckling her belt with the other hand. She was trying to push him away during this conduct, and then said “Stop, come on, we are just here to talk.”

63. [63]
    I am satisfied beyond reasonable doubt that the complainant did not consent to the defendant putting his finger into her vagina based on her evidence.

Mistake

64. [64]
    However, the sequence according to the complainant does give rise to a possible defence of mistake of fact of the complainant’s consent in relation to this count. The law provides that a person who does an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent then if the real state of things had been such as the person believed to exist.

65. [65]
    Section 24 of the Criminal Code provides:

“24 Mistake of fact

3. (1)
   A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

3. (2)
   The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

66. [66]
    The first issue is whether I am satisfied beyond reasonable doubt that the defendant, with all his characteristics, did not honestly believe the complainant consented in the circumstances?

67. [67]
    An honest belief is one that is genuinely held by the defendant. That involves assessment of the defendant himself. The defendant on all accounts was not drinking during the night. He escalated his pursuit of the complainant fireside, waterside, and into seclusion. Accounting for the state of the light, distance and perspectives of the other witnesses, it seems to me that the complainant and defendant’s conduct was consistent with raunchy embrace, which drew that call of ‘Go get a room’.  It seems to me that the perceptible observations were consistent with the complainant’s evidence. 

68. [68]
    I do not interpret her evidence as elevating the defendant’s forceful conduct as being so intolerable to cause her to withdraw. In my view the complainant did show overt verbal and physical resistance from time to time, but she seemed willing to go with him out of sight despite being grabbed, forcibly kissed, rubbed in her genital area outside her shorts, squeezed very hard on her nipple, and continuing with physical affection. The defendant seemed buoyed on by her agreement to move further away out of sight of the others.

69. [69]
    Once under the palm tree, the defendant ‘kept making out’ and ‘forcibly kissing” her, and the complainant seemed tolerable and permitted the defendant putting his hands inside her pants.  It wasn’t until the defendant’s penetrated her vagina with his finger that she told the defendant to stop, and she ‘pushed him away’.^[49]  However, the defendant did not seem to appreciate the complainant’s lack of consent.  By that stage he was feeling sexually aroused, ‘horny’ his penis was erect, and wanted to have sexual intercourse.^[50]

70. [70]
    I am not satisfied beyond reasonable doubt that the defendant, with all his characteristics, did not honestly believe the complainant consented in the circumstances of count 1.

71. [71]
    However that is not the end of the matter. The next issue is whether I am satisfied beyond reasonable doubt that a person in the defendant’s shoes would not reasonably believe that the complainant was consenting in the circumstances?

72. [72]
    To be reasonable, the belief must be one held by a person in the defendant’s shoes, in his circumstances, on reasonable grounds. The focus is on the defendant’s belief, not that of a theoretical reasonable person. You consider whether the belief was reasonably held having regard to his particular circumstances, including the information and situation as he perceived them.

73. [73]
    As I understand the complainant’s evidence, she did not verbally communicate the unwanted touching insider her pants, but she did verbalise her rejection and pushed the defendant away after he put his finger into her vagina.^[51]  In the end, I am not persuaded that the prosecution has excluded the defence of mistake of fact by proving beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.

74. [74]
    Therefore, I’m bound to conclude that the defendant is not guilty of Count 1.

Count 2 - Rape

75. [75]
    Section 349(1) & (2)(a) of the Criminal Code provides for the offence of rape when a person has carnal knowledge with or of another person, and the person’s consent to an act is not freely and voluntarily given if it is obtained, inter alia, by force.

76. [76]
    There is not dispute that the defendant had carnal knowledge of or with the complainant by inserting his penis into her vagina on 13 December 2017 at Holloways Beach in Queensland. It is also undisputed that mistake of fact is not open on the evidence having regard to the disparity of the parties’ accounts.

77. [77]
    It seems to me that the complainant had by then made it very plain that digital penetration was unwanted and they were just there to talk. This was further re-enforced when she rejected the proposition of whether she ‘wanted to fuck?’  Yet he persisted ‘making out’ and became more and more dominant and rough.  The complainant described falling back and she sat when the defendant grabbed right shoulder, turned her around, and pushed her face into the sand, forced her legs apart, and penetrated her vagina with his penis.

78. [78]
    I am satisfied beyond reasonable doubt that the complainant did not consent to the defendant having carnal knowledge of her.

Verdict

79. [79]
    For these reasons:

Judge D P Morzone DCJ