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R v SBY[2021] QCHC 37

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v SBY [2021] QChC 37

PARTIES:

R

v

SBY

(defendant)

FILE NO/S:

21 of 2021

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Townsville Childrens Court

DELIVERED ON:

4 November 2021

DELIVERED AT:

Townsville

HEARING DATE:

1 to 3 November 2021

JUDGE:

Dearden DCJ

ORDER:

I find the defendant guilty in respect of count 1 – rape and count 2 – rape.

CATCHWORDS:

CRIMINAL LAW – SEXUAL OFFENCE – RAPE – JUDGE ALONE TRIAL – whether the defendant child is guilty or not guilty of two counts of rape – whether the offences charged are proved beyond a reasonable doubt

LEGISLATION:

Criminal Code 1899 (Qld) ss 349, 644

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

CASES:

R v MMH [2020] QDC 70

COUNSEL:

A Walklate for the Crown

D Honchin for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Rennick Lawyers for the defendant

Introduction

  1. [1]
    The defendant, SBY, is charged with two counts of rape as follows:

Count 1  that between the thirty-first day of October, 2019 and the first day of January, 2020 at Townsville in the State of Queensland, SBY raped HK.

Count 2 that on or about the twenty-second day of January, 2020 at Townsville in the State of Queensland, SBY raped HK

  1. [2]
    The defendant is a juvenile and has elected to proceed with a judge alone trial.
  2. [3]
    The defendant pleaded not guilty to each of the counts on the indictment.

Particulars

  1. [4]
    In respect of each of counts 1 and 2, the prosecution alleges that the defendant penetrated the complainant’s vagina with his penis, without her consent.

Elements

  1. [5]
    In respect of each of counts 1 and 2, the prosecution must prove beyond reasonable doubt that the defendant:
  1. (1)
    had carnal knowledge of the complainant

To prove “carnal knowledge”, the prosecution must prove that the defendant penetrated the genitalia, that is the vulva and/or vagina of the complainant, with his penis.  The offence is complete upon penetration.  Any degree of penetration is sufficient.  It is not necessary for the prosecution to prove that the defendant ejaculated.

  1. (2)
    the carnal knowledge was without the complainant’s consent.

“Consent” means consent freely and voluntarily given by a person with the ability to know and understand what she is doing in giving consent. A person’s consent to an act is not freely and voluntarily given if it is obtained:

  1. (a)
    by force; or
  1. (b)
    by threats or intimidation; or
  1. (c)
    by fear of bodily harm; or
  1. (d)
    by exercise of authority; or
  1. (e)
    by false and fraudulent representations about the nature or purpose of the act; or
  1. (f)
    by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
  1. [6]
    In respect of count 1, if I am not persuaded beyond reasonable doubt in respect of the element of penetration, then I must consider the alternative count of indecent treatment of a child under 16. The elements of that offence are as follows:

The prosecution must prove, beyond reasonable doubt, that:

  1. (i)
    the defendant dealt with the complainant;
  2. (ii)
    the dealing was indecent;
  3. (iii)
    the dealing was unlawful;
  4. (iv)
    the complainant was under 16 years;

Consent is irrelevant.

The evidence

  1. [7]
    The complainant, HK, took part in an Evidence Act 1977 (Qld) (‘Evidence Act’) s. 93A interview with Plain Clothes Senior Constable (‘PCSC’) Dion Reed and Sergeant Mark Oldfield at the Townsville police station on 25 January 2020 (exhibit 1; exhibit K (transcript)).
  2. [8]
    The complainant’s evidence was pre-recorded in this court pursuant to Evidence Act s. 21AK on 7 October 2021 (exhibit C; exhibit B (transcript)).
  3. [9]
    The child witness ZK took part in an Evidence Act s. 93A interview with PCSC Dion Reed on 30 September 2020 (exhibit 3; exhibit D (transcript)).
  4. [10]
    ZK’s evidence was pre-recorded in this court pursuant to Evidence Act s. 21AK on 7 October 2021 (exhibit E; exhibit F (transcript)).
  5. [11]
    Evidence was also given by:-
  1. (a)
    KY (mother of the complainant)
  2. (b)
    VY (grandmother of the complainant and the defendant)
  3. (c)
    RY (aunt of complainant and defendant)
  4. (d)
    JH
  5. (e)
    Vicky Piggott (forensic nurse)
  6. (f)
    Dr Sara Fraser (medical practitioner)
  7. (g)
    PCSC Dion Reed
  8. (h)
    SBY (the defendant)
  9. (i)
    LY (the defendant’s father)
  1. [12]
    The following exhibits were also tendered: 

Exhibit 1 – s 93A statement of HK

Exhibit 2A – Photo of front of house

Exhibit 2B – Photo of hallway, from the front door

Exhibit 2C – Photo of doorway to complainant’s bedroom

Exhibit 2D – Photo of complainant’s bedroom

Exhibit 2E – Another photo of hallway

Exhibit 2F – Photo of inside the garage

Exhibit 3 – s 93A statement of ZK

Exhibit 4 – Photo of complaint’s wardrobe

Exhibit 5 – Defendant’s record of interview

Exhibit A – Transcript of s 93A statement of HK

Exhibit B – Transcript of pre-recording of evidence of HK

Exhibit C – Pre-recording of evidence of HK

Exhibit D – Transcript of s 93A statement of ZK

Exhibit E – Pre-recording of evidence of ZK

Exhibit F – Transcript of pre-recording of evidence of ZK

Exhibit G – Statement of VY

Exhibit H – Transcript of defendant’s record of interview

Exhibit I – Admissions

  1. [13]
    Pursuant to Criminal Code 1899 (Qld) (‘Criminal Code’) s. 644, the prosecution and defence jointly agreed on the following admissions:[1]
  1. (1)
    The defendant was born on 21 May 2005.
  1. (2)
    The complainant, HK was born on 12 November 2005.
  1. (3)
    DNA samples were provided by both the defendant and the complainant to police. A forensic scientist analysed the DNA samples and found a mixed DNA profile within the spermatozoa fraction taken from a high vaginal swab from the complainant. The mixed DNA profile obtained is greater than 100 billion times more likely to have occurred had the defendant contributed DNA, along with the complainant than if he had not.

Principles – Judge alone trial

  1. [14]
    In respect of the principles to be applied in a judge alone trial, I refer to and respectfully adopt the exposition of those principles set out by Smith DCJA in R v MMH [2020] QDC 70, [7] ndash; [10], supported by the cases and legislation cited in those paragraphs of his Honour’s judgment.
  2. [15]
    Although the defendant in that trial was an adult, the relevant principles are equally applicable to this judge alone trial of a juvenile.

Directions

  1. [16]
    I set out the following further directions, with which I must conduct these proceedings in a judge only trial:
  1. I must reach my verdict only on the evidence, which I have detailed in these reasons. 
  2. 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.
  3. 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.
  4. I am required to assist 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.
  5. Defendant giving and calling evidence

The defendant gave evidence and called evidence in this trial.  That he has done so does not mean that he assumed a responsibility of proving his innocence.  The burden of proof has not shifted to him.  His evidence is added to the evidence called for the prosecution. The prosecution has the burden of proving each of the elements of the offence 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.

I understand that in a criminal trial it is not a question of me making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant and his witness.  The proper approach is to understand that the prosecution case depends upon me accepting that the evidence of the prosecution’s principal witness or witnesses was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; so I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.    

Where, as here, there is defence evidence, usually one of three possible results will follow:

I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, my verdicts would be not guilty; or

  1. I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, my verdicts will be not guilty; or 
  2. I may think that the defence evidence should not be accepted. 

However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt.  If I find the defence evidence unconvincing, I set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.

  1. Records of interview

The prosecution relies on answers said to have been given by the defendant in an interview with police as supporting its case against him. In order to rely on that evidence, I must be satisfied that he did give the answers that are attributed to him, and that they were true.

Electronically recorded interviews

The evidence of the defendant’s admissions is in the form of a videotape, which I have seen and heard played, and I am entitled to have played again as often as I wish.  During the course of the trial, I was given transcripts to look at while the tape was played.  I remind myself that those transcripts are really nothing more than someone else’s opinion of what was said by the police officer and the defendant, and although they might have been of some help, it is for me to determine what I heard and saw.  If my view of any part of the conversation differs from what the transcript shows, it is my view which must prevail.

Whether the confession is true and accurate

If I am satisfied that the statement was indeed made by the defendant, the second aspect I must consider is whether those parts that the prosecution relies on as indicating guilt are true and accurate.  It is up to me to decide whether I am satisfied that those things said by the defendant which would tend to indicate that he is guilty of the offence or offences were true; because if I am not satisfied, I cannot rely on them as going to prove his guilt. 

Use of the interview

During the course of the interview a number of questions were asked by the police officer of the defendant. If the defendant did not agree to or in some way accept the contents of a question asked of him, the question cannot become any evidence against him. 

In the course of the interview, it is said, the defendant made statements which the prosecution relies on as pointing to his guilt.  If I accept them as having been made by the defendant and as true, it is up to me to decide what weight I give them, and what I think they prove.  He also gave answers which I might view as indicating his innocence.  I am entitled to have regard to those answers if I accept them, and to give them whatever weight I think appropriate. In relation to both the answers which the prosecution relies on as indicating guilt, and those which point to innocence, it is entirely up to me what use you make of them and what weight you give them.

Where, as here, the defendant has given a record of interview, and given and called evidence, so there is a defence version before me to consider, then usually one of three possible results will follow:

  1. I may think the defence version is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, my verdicts would be not guilty;

or

  1. I may think that, although the defence version was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, my verdicts will be not guilty;

or

  1. I may think that the defence version should not be accepted. 

However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt.  If I find the defence version unconvincing, I set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of each the offences.

  1. Admissions by defendant – count 1

The prosecution also relies on the evidence from the complainant that the defendant apologised the morning after the events the subject of count 1.

In respect of that evidence, I need to be satisfied that the defendant made the apology, as the complainant attests in her s. 93A interview. If I am satisfied about the truth of the complainant’s account, I then need to decide if the content of the complainant’s evidence of the conversation would tend to indicate that the defendant is guilty of count 1. If I am not so satisfied, then that evidence cannot be used against him.

  1. Lies going to credit

I have heard submissions from the prosecution which attribute lies to the defendant in respect of his evidence that there was no sexual contact between the complainant and the defendant prior to him going to Mackay in December, 2019, and that the sexual intercourse on 22 January, 2020 was consensual. I will make up my own mind about whether the defendant was telling lies and, if so, whether he was doing that deliberately. 

If I conclude that the defendant deliberately told lies, that is relevant only to his credibility. It is for me to decide whether those suggested lies affect his credibility.

However, I should bear in mind this warning:  I must not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

  1. Separate charges

Separate charges have been preferred.  I must consider each charge separately, evaluating the evidence relating to that particular charge, to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  I will return separate verdicts for each charge.

The evidence in relation to the separate offences is different and so my verdicts need not be the same.

  1. Markuleski direction

If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one count, whether by reference to her demeanour or for any other reason, that must be taken into account by me in assessing the truthfulness or reliability of her evidence generally, and in particular in respect of the other count.

  1. s. 93A evidence of child witnesses

Part of the evidence of the complainant is comprised of a conversation with police officers on 25 January, 2020. The evidence of ZK is comprised in part of a conversation with police on 30 September, 2020.

The conversations were recorded and the recordings were played to me.

The presenting of the evidence of HK and ZK in this way is a routine practice of the court. This measure is adopted in every case involving children in matters such as these. I should not draw any inference adverse to the defendant because these routine measures were used.

  1. Pre-recorded evidence of child witnesses
    1. The evidence of the child witnesses, HK and ZK, was taken before Judge Lynham on 7 October 2021.
    2. At the time each child gave evidence, the child was in a room remote ie separate from the courtroom.
    3. The evidence was given by use of an audiovisual link between the room in which the child was seated and the courtroom.
    4. At the time the child gave evidence there was a support person sitting in the room with the child, and no other person.
    5. Whilst the child gave evidence, all non-essential persons were excluded from the courtroom.
    6. At the time of each pre-recording, the defendant was present in the courtroom but was so positioned that the child could not see the defendant on the monitor, or at all.
    7. In each case, the child’s evidence was recorded as it was given and then played to me.

In respect of the pre-recording played in evidence in this trial, I direct myself as follows:

  1. All of the measures which I have just outlined, used for the taking and showing of the evidence of children, are routine practices of the court for taking and showing evidence of children in trials such as this one, and I must not draw any inference as to the defendant’s guilt because these measures were used.
  2. The probative value of the evidence is not increased or decreased because these measures were used.
  3. This means it is not better evidence, or worse evidence, than if the evidence had been given before me from the witness box.
  4. The evidence is not to be given any greater or lesser weight because these routine measures were used.
  1. Transcripts

Transcripts were provided in respect of the s. 93A interviews of HK and ZK; the s. 21AK evidence of HK and ZK; and the record of interview of the defendant. 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 when necessary.

  1. Preliminary complainant evidence

Preliminary complainant evidence was given by the witnesses KY, Vicky Piggott, and PSCS Dion Reed (in respect of his conversations with the complainant before she commenced her Evidence Act s. 93A interview at 4:45pm on 25 January 2020).

In relation to that evidence of preliminary complaint contained within the evidence given by those witnesses I direct myself as follows:

  1. 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 preliminary complainant witnesses is something I may take into account as possibly enhancing the likelihood that the complainant’s testimony is true.
  2. In addition, I may also take into account any inconsistency between the accounts given by the complainant witnesses and the accounts as given by the complainant 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 preliminary complainant witnesses 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. Expert witnesses

Evidence was called from expert witnesses Dr Sara Fraser and Forensic Nurse Vicky Piggott.  Although Dr Fraser and Ms Piggott are expert witnesses and each is entitled to express an opinion in a particular area of expertise, their evidence does not have to be automatically accepted by me as the tribunal of fact.  I should note, however, that there appears to be no dispute about the evidence of either expert.  I note further that Dr Fraser gave her evidence by audio-visual link.  I must not give that evidence any more or less weight, or draw any adverse inferences against a party, simply because that evidence was by telephone.

  1. Written admissions

Some of the evidence in this trial is by way of written admissions agreed to by the prosecution and the defendant, pursuant to Criminal Code s. 644.  Those admissions are to facts only, and do not constitute an admission, in any way, to the indicted counts. 

  1. Failure by prosecution to call a material witness

It may appear to me that a witness other than those who have given evidence might have been able to give some relevant evidence on some aspect of the case.  I must not speculate about what others who were not called might have said if they had been called. I should act on the basis of the evidence that has been called and only on that evidence.

Overview

  1. [17]
    The complainant was born on 12 November 2005 and was aged 14 at the relevant times in respect of counts 1 and 2.[2]
  2. [18]
    The defendant was born on 21 May 2005 and was also aged 14 at the relevant times.[3]
  3. [19]
    The complainant resided with her mother KY and her sister ZK at an address at [Townsville]. This was a three-bedroom house and prior to other persons coming to live in the house over the period of July 2019 to January 2021, each of KY, HK and ZK had their own bedroom in the house.
  4. [20]
    In August or September 2019, the defendant (who is the son of KY’s brother LY) came to live at [Townsville], having left his previous residence at his mother’s house. At this time, KY and the biological father of HK and ZK had separated, and HK and ZK were living alternate weeks at their mother KY’s house and their father’s house. 
  5. [21]
    The complainant says that in December 2019 the defendant put his penis into her vagina, without her consent, in her bedroom at the house at [Townsville] (count 1).
  6. [22]
    The complainant says that in January 2020, after the defendant returned from a period of living with his father in Mackay, the defendant again put his penis in her vagina without her consent (count 2).
  7. [23]
    The complainant sent a Snapchat message to her cousin Charlie after the events of count 2. KY was advised by Charlie of the contents of the message and the complainant was taken to the Townsville hospital, examined by Dr Fraser and by forensic nurse Vicky Piggott and forensic samples were taken from her.
  8. [24]
    The defendant was interviewed by police officers Dion Reed and Mark Oldfield on 12 June 2020 and he denied having sexual intercourse with the complainant, consensual or otherwise, on any occasion.
  9. [25]
    The witnesses KY, VY, JH and RY all gave evidence of observing a close relationship between the complainant and defendant while the defendant was residing in the complainant’s household.
  10. [26]
    The defendant acknowledged in the admissions[4] that the spermatozoa fraction taken from a high-vaginal swab from the complainant which had a mixed DNA profile, was greater than a 100 billion times more likely to have occurred had the defendant contributed DNA, along with the complainant, than if he had not. In simple terms, the DNA evidence accepted by the defendant confirmed the defendant had ejaculated in the complainant’s vagina prior to the taking of the DNA samples of the complainant on 25 January 2020.
  11. [27]
    The defendant gave evidence in this trial, denied the first act of intercourse in December 2019, but accepted that intercourse had occurred in January 2020. He gave a description in evidence of a consensual act of intercourse with the complainant and acknowledged that his denial of any intercourse with the complainant in his record of interview of 12 June 2020 was not truthful.

The evidence – counts 1 and 2

Count 1

  1. [28]
    The complainant in her s. 93A interview, gave evidence that she was on her phone watching YouTube, and the defendant “came into the room and then he kinda like got on top of me”.[5] She said it occurred in “the last week of school”, in December 2019.[6]
  2. [29]
    The complainant said she had gone to bed and as she was laying on the bed, he “jumped with his legs, apart over… around my waist, hips area”, then, as she dropped her phone, he turned her onto her back.[7] She describes the defendant pulling her pants and underwear down to her ankles[8] and that nothing was said.[9]
  3. [30]
    The complainant said she was “kicking my legs and pushing him off but it just didn’t work”;[10] and once he’d pulled her pants down, he “held my arms above my head”.[11]
  4. [31]
    The complainant said he “had his, like, legs, split open on top of me, and then he’d wrapped his, like, lower legs down around mine, then pinned my arms up against, like, above m, above my head and then that’s how he held me down.”[12]
  5. [32]
    She then describes that he “put his penis in my vagina and then kinda did that for five minutes and then after that, he just jumped straight off and I walked out the door”. [13]
  6. [33]
    The complainant says the defendant “just like pushed forward on my vagina”[14] and that she could feel “his penis coming into my vagina”.[15]
  7. [34]
    She said that neither she, nor the defendant said anything;[16] and when he stopped, he got up from his knees, unwrapped his legs from hers and she walked out of the room.[17]
  8. [35]
    The complainant was not sure whether the defendant ejaculated; said the defendant was not wearing a condom; said the defendant’s penis was hard; and she felt “pain in my vagina when he pushed it”.[18]
  9. [36]
    The next morning the defendant apologised and said, “sorry for what I did last night, it was really wrong, it shouldn’t have happened, it won’t happen again”.[19]
  10. [37]
    The complainant said she had not had sex before;[20] was really sore for a few days;[21] and described a “little patch” of sperm on the bedsheets[22] which was where her vagina would have been.[23]

Count 2

  1. [38]
    The complainant describes the second act of intercourse occurring in her bedroom, between 12:30 and 1:00 in the morning[24], early on Wednesday morning prior to her s. 93A interview (i.e. 22 January 2020).[25]
  2. [39]
    The complainant and defendant had been watching a movie in bed. When the complainant shut her laptop down the defendant grabbed her waist, pulled her in, started rubbing against her, put her legs between his and then pulled her pants to the side.[26]
  3. [40]
    The complainant said the defendant was behind her;[27] had her on her side;[28] put his dick in her vagina, and when she said “stop” multiple times, would go harder and faster.[29] The complainant told the defendant to stop three or four times;[30] his penis was hard; he was not wearing a condom and she felt pain.[31] She felt like he really forced his penis into her vagina and it ached, and then hurt the next day.[32] The complainant describes trying to push the defendant away during intercourse.[33]
  4. [41]
    The complainant says that each time she told the him to stop (she identifies four separate requests), the defendant would get harder and faster.[34]
  5. [42]
    The allegation came to light, because after the second occasion of intercourse the complainant told a cousin, Charlie, that the defendant had forced her to have sex with him.[35] Charlie in turn told the complainant’s mother KY.[36] The complainant told her mother what had happened and she was taken to the hospital.[37]
  6. [43]
    The complainant identified the defendant as her cousin, aged 14, whom she had known her whole life,[38] and said that he had been living at her family home for about 5 months.[39]

Preliminary complaint

  1. [44]
    The complainant told her mother, KY, that what she’d told Charlie was correct, and when asked, said that the sex was not consensual.[40]
  2. [45]
    The complainant told Forensic Nurse Vicky Piggott that while she was watching a movie, a male came in, grabbed her waist, pulled her pants to one side and put his penis in her, and every time she said stop, he’d push his penis harder and faster.[41] The complainant identified the male as her cousin, SBY.[42]
  3. [46]
    Prior to the taking of her s. 93A statement, the complainant told PCSC Dion Reed on 24 January 2020 that she had been raped by her cousin, SBY, several days before; that it was penis in the vagina and was not consensual.[43]
  4. [47]
    The evidence of the preliminary complaint witnesses was, in my view, broadly consistent with the complainant’s account of the encounter charged as count 2.

Witnesses

ZK

  1. [48]
    ZK gave evidence in a s. 93A interview[44] and in a s. 21AK pre-record.[45] She said that the defendant was her cousin and was living with them, but she didn’t know why.[46]
  2. [49]
    ZK gave evidence that the defendant and complainant would sleep in the same bed.[47] ZK gave evidence of being with the complainant when she met a boy at Hungry Jacks, and that she brought him home on another occasion.[48] 
  3. [50]
    ZK confirmed both of those aspects of her evidence in the s. 21AK hearing.[49]

KY

  1. [51]
    KY gave evidence that she was the mother of the complainant and ZK, was separated from their father, and their children lived partly with him and partly with her.[50] Her nephew SBY (the defendant) came to live at her house in August or September 2019 and he was given HK’s room.[51]
  2. [52]
    KY said she would sometimes find the defendant and the complainant sleeping in the same bed, and although they were told they were too old to do it, there were still occasions when they were asleep in the same bed, although they always had a reason.[52]
  3. [53]
    KY said that the defendant suddenly went to stay with his dad a week before the school holidays started.[53] KY gave evidence that her sister RY and her two children, and RY’s friend JH and her two children also stayed at the house.[54]

VY

  1. [54]
    VY is the maternal grandmother of HK and also, the SBY’s grandmother.[55] VY stayed with the complainant’s family for about a week prior to 26 January 2020, having brought the defendant back to that house from his father’s house in Mackay.[56]
  2. [55]
    VY described the defendant and complainant as having “a close flirtatious relationship” which included “all sorts of touching, loving each other up, kissing each other, cuddling, laying down together HK with her head on his chest”.[57]
  3. [56]
    On an application by the Crown, given the substantial variance between that evidence and her statement, I granted an application for VY to be declared a hostile witness.[58]
  4. [57]
    VY confirmed that in her police statement she said she had “observed HK and SBY to be really close with on another. The would wrestle with one another, play fight, lay down together and watch movies in the front bedroom.”[59]
  5. [58]
    In cross-examination, VY confirmed that the relationship between the defendant and the complainant was “very physical”.[60]

RY

  1. [59]
    RY is KY’s sister and the blood aunt of both the complainant and the defendant.[61]
  2. [60]
    RY moved into the complainant’s household around October 2019. She observed the complainant and defendant as “always together, play fighting, touching hanging out giggling [and] very isolated in the bedroom most of the time.[62] The touching included hugging and holding hands.[63]
  3. [61]
    RY did see the complainant with a boy called Jake at the house, during school hours.[64] She also observed the complainant and defendant sleeping in bed together, although told by KY they shouldn’t be.[65]

JH

  1. [62]
    JH moved into the complainant’s household in the first week of January 2020.[66] She was there when the defendant returned from Mackay with VY and she observed the complainant and defendant together. She described them as “a little too close for cousins”, and said they would “play around and fight with one another and be a little too close with one another…”[67]

Medical experts

  1. [63]
    Dr Sara Fraser examined the complainant at Townsville Hospital at 9:45pm on 24 January 2020, was told there had been a sexual assault, and referred the matter to the police.[68] Dr Fraser did not observe any injuries, although she did make a genital examination. Dr Fraser observed a fast heart rate.[69] She prescribed a morning after pill for the complainant.[70]
  2. [64]
    Ms Vicky Piggott is a Forensic Nurse Examiner,[71] and examined the complainant at 12:10am on 25 January 2020.[72]
  3. [65]
    Ms Piggott conducted a full body examination. The only injury she observed was a 10x15mm bruise on the complainant’s left inner thigh.[73]
  4. [66]
    On genital examination, the complainant had pain at 5-7 o’clock in her labial folds, and 2cm into the entrance of her vagina, at the same position. There were no scars or broken skin.[74]
  5. [67]
    Ms Piggott collected forensic swabs, including a high vaginal swab.[75]

PCSC Dion Reed

  1. [68]
    PCSC Dion Reed attended on the complainant at the Townsville Hospital on 24 January 2020, received a preliminary complaint from her, and arranged the forensic examination by Ms Vicky Piggott.[76] DNA samples were taken from the complainant and in due course, from the defendant.[77]
  2. [69]
    As well as conducting s. 93A interviews with HK and ZK, PCSC Reed took other witness statements, tried to obtain a statement from Charlie without success,[78] and conducted a record of interview with the defendant.[79]

Record of interview

  1. [70]
    PCSC Reed and Sergeant Mark Oldfield conducted a record of interview with the defendant on 12 June 2020. The defendant’s support person was PV, the defendant’s stepmother.  The interview ran for 1 hour, 13 minutes.[80]
  2. [71]
    The defendant participated freely in the interview and readily answered all questions asked of him. He described being in the complainant’s household and was questioned at length about the events of the night of 21 – 22 January 2020.
  3. [72]
    Even when the precise detail of two sexual encounters in January 2020 and December 2019 was put to him, he emphatically denied sexual intercourse with the complainant, consensual or otherwise.[81]

Defence evidence

  1. [73]
    The defendant gave evidence, and called evidence from his father LY.
  2. [74]
    The defendant described his relationship with the complainant, while residing at her place, as “a little bit too close for my liking”[82] He said that she was “a bit flirty, and always touched me”[83] The defendant gave evidence that sometimes he would wake up and the complainant would be sleeping with him. He said that KY spoke to him and said it was not okay at that age and told them about the birds and the bees.[84]
  3. [75]
    The defendant gave evidence of travelling to Mackay by bus on the Wednesday of his last week at school, returning the week before school started with his nanna VY.[85]
  4. [76]
    The defendant gave evidence of a sexual encounter with the complainant after the return from Mackay. He said that it occurred after watching Rick & Morty on the laptop in his room (formerly the complainant’s room).[86] He says the complainant wouldn’t let him leave, stopped him going out the door, and asked if they could have sex. He gave evidence that he said “no”, she insisted, he laid down on the bed, she pulled his boxes and underwear off, hopped on top, grabbed his penis with her left hand and put it in, guiding it into her vagina, after pulling her clothes to one side with her right hand. Sex continued for five minutes until he ejaculated inside her, she said “thanks”, and walked out.[87]
  5. [77]
    The defendant denied the allegation of rape before he went to Mackay.[88]
  6. [78]
    The defendant said that he lied about the January 2020 sexual encounter with the complainant in his police interview because he was scared, nervous and a bit uncomfortable with his stepmother in the room.
  7. [79]
    In cross-examination, the defendant denied that he liked the contact with the complainant;[89] denied finding the complainant attractive;[90] and said he was forced to have sex with her.[91]
  8. [80]
    The defendant denied raping the complainant in December 2019, prior to the trip to Mackay,[92] and denied apologising to her afterwards.[93]
  9. [81]
    The defendant denied having sex with the complainant, despite being asked to stop, in January 2020, and insisted that he was forced to have sex with her.[94]
  10. [82]
    LY (the defendant’s father) gave evidence that the defendant travelled from Townsville to Mackay on 4 December 2019, by bus, two days before school finished.[95]

Discussion

  1. [83]
    Clearly, to be persuaded beyond reasonable doubt that the defendant is guilty of either or both of counts 1 and 2, requires me to assess the credibility and reliability of the complainant.
  2. [84]
    In this trial, I have to assess the complainant’s evidence in the context of the defendant’s sworn evidence that the events the subject of count 2 were, in contradistinction to the Crown case, an act of consensual sexual intercourse initiated by the complainant. In addition, there is a lengthy record of interview by the defendant in which he emphatically denied any intercourse with the complainant, consensual or non-consensual.
  3. [85]
    As Mr Honchin for the defendant submits, on the defendant’s evidence, count 1 did not occur, and count 2 was an act of consensual intercourse. In that context, in accordance with the direction I have given myself, it is necessary to consider whether I am satisfied with the defendant’s evidence, and therefore find him not guilty on both counts; alternatively, whether I am left in a state of uncertainty by the defendant’s evidence, also leading to verdicts of not guilty; or finally, whether I reject the defendant’s evidence, in which case, I would need to go back to the Crown case and decide if I am persuaded beyond reasonable doubt that the defendant is guilty of either or both of the counts.
  4. [86]
    The prosecutor, Mr Walklate, submits that the defence case is unconvincing for three reasons:
  1. (1)
    The defendant’s account of his relationship with the complainant is at odds with the other evidence and should not be accepted;
  1. (2)
    The defendant’s account of the facts of count 2 is implausible; and
  1. (3)
    The defendant lied in his record of interview, and his explanation in sworn evidence for that lie was unconvincing, which goes to his credit.
  1. [87]
    Mr Walklate submits, in accordance with the direction I have given myself, that I would put the defence evidence to one side, and that on a careful examination of the Crown case, would be persuaded beyond reasonable doubt of the defendant’s guilt on both counts.

The defendant’s relationship with the complainant

  1. [88]
    Each of the witnesses KY, RY, JH and VY, describe a relationship that was physically close, with the complainant and defendant spending most of their time together. VY described it as a close flirtatious relationship[96] with all sorts of touching.[97] RY described them as “always flirtatious”.[98] JH described them as “a little bit too close for cousins… just the way they used to play around and fight with one another”.[99] KY describes finding them sleeping in bed together, and told them that were too old to sleep in the same bed,[100] but despite the talk, sleeping together still occurred.[101] RY described them as “always together, play fighting, touching”, “hugging, holding hands” and “very isolated in the bedroom most of the time”.[102]
  2. [89]
    The defendant, on the other hand, clearly sought to minimise his relationship with the complainant, saying (in a curious adoption of the phrase used by a number of the adult witnesses) “it was a little bit close for my liking”.[103] He described her as “a little bit flirty, and always touched me”,[104] and claimed that he didn’t take it too far.[105]
  3. [90]
    In cross-examination, the defendant claimed there was no physical attraction.[106] He said that he was forced into intercourse by the complainant,[107] and that it was “a bit weird”.[108]
  4. [91]
    In my view, the preponderance of the evidence is overwhelming – there was a close physical relationship between the defendant and the complainant, and in his evidence the defendant has sought to minimise and downplay his sexual attraction to the complainant. That becomes relevant in a further assessment of his evidence.

The defendant’s account of count 2 is implausible

  1. [92]
    The defendant, in his sworn evidence, said he was forced by the complainant, to have sex with her. He described her grabbing him by the waist, refusing to let him out, saying no, then her taking his boxers and underwear off, hopping on top, pulling her clothing to one side with her right hand while guiding his erect penis into her vagina with her left hand, from behind, followed by intercourse to ejaculation.[109] This, the defendant said, occurred in the context of a lack of attraction to the complainant, although he did accept that he was aroused.[110]
  2. [93]
    In my view, the defendant’s evidence came across as rehearsed, self-serving and implausible. Between the time of his record of interview (12 June 2020) and his evidence at this trial (2 November 2021), the DNA evidence had established, uncontrovertibly, that his spermatozoa was found on a swab in the complainant’s vagina.[111] The defendant had no alternative but to accept that intercourse had occurred. His account that the 14 year old complainant forced him to have sex, which carried a clear risk of pregnancy given no contraception was used, when he was not attracted to her and that he could not prevent intercourse happening, and then thanked him, is a wholly unconvincing account. I do not accept it, nor does it leave me in doubt as to what occurred. It follows that I set aside that aspect of his evidence in respect of counts 1 and 2.

The defendant lied in his record of interview, his explanation was unconvincing, and goes to his credit

  1. [94]
    As set out above, the DNA evidence made it inevitable that the defendant had to accept that he lied in his record of interview. He claimed to be scared, nervous, a little bit uncomfortable with his new stepmother in the room.[112]
  2. [95]
    With respect, the defendant participated openly and (apparently) straightforwardly in the record of interview, provided significant detail about a range of matters, and yet was adamant, despite being told of the existence of the DNA evidence, that he had never had sexual intercourse with the complainant.[113]
  3. [96]
    It follows, in my view, that his lie about sexual intercourse with the complainant goes to his credit, and is a further reason why I should reject his evidence that he did not have intercourse with the complainant, in either December 2019 (count 1) or January 2020 (count 2).

Further consideration of the evidence

  1. [97]
    It then becomes necessary to assess the Crown case and decide whether I am persuaded, beyond reasonable doubt, whether I accept the complainant’s evidence of non-consensual sexual intercourse in respect of each of counts 1 and 2.
  2. [98]
    I note that the defendant’s counsel submits that I should not accept the complainant as a witness of truth about the allegations of rape, because she denied sneaking out to see boys, contrary to evidence from the Crown witnesses, including ZK,[114] VY,[115] and RY.[116] In my view, such conduct, if it did occur, does not affect my assessment of the credibility or reliability of the complainant in respect of her allegations of rape of her by the defendant. I consider this evidence to be unsurprising given the complainant’s age and life experience. Any conflict between her evidence and the witnesses that I have identified above and/or with the defendant’s evidence does not detract in any way from my acceptance of the complainant’s evidence on the key issues of sexual contact with the defendant in relation to counts 1 and 2.

Count 2

  1. [99]
    It is convenient to address the complainant’s evidence on count 2 first. The complainant’s account of her lying on her back, then being moved onto her side, with the defendant behind her, pulling the crotch of her pants to one side, and inserting his penis, is entirely plausible and believable.[117] She describes asking him to stop three or four times,[118] describes his penis as hard,[119] not wearing a condom,[120] and said that he would go harder and faster each time she asked him to stop.[121] Clearly, she is describing a lived experience of non-consensual intercourse, and the DNA evidence confirms the presence of sperm inside her vagina.
  2. [100]
    In short, the complainant’s evidence, together with the medical evidence confirming pain inside and outside the vagina, and the DNA evidence, is entirely consistent with the defendant’s penis penetrating the complainant’s vagina. I accept, beyond reasonable doubt, her evidence that it was without her consent.
  3. [101]
    It follows that all of the elements of rape in respect of count 2 are satisfied.

Count 1

  1. [102]
    The complainant’s evidence in respect of count 1, requires careful examination. She says that the defendant got on top of her, [122] pulled her pants down and put his penis inside her vagina,[123] and did that for five minutes.[124]
  2. [103]
    The complainant describes him pulling her pants down to her ankles,[125] and although she didn’t say anything,[126] she was kicking her legs and pushing him off, but it didn’t work.[127] She describes the defendant pinning her wrists down above her head.[128] She describes his penis pushing forward on her vagina,[129] and feeling pain in her vagina.[130]
  3. [104]
    Although she was not sure if the defendant ejaculated,[131] she described his sperm on her bedsheets a little below where her vagina would have been.[132] With respect, this was a particularly telling illustration of what, in my view, was truthful evidence about a lived experience.
  4. [105]
    The complainant says the defendant apologised the next day, said he was sorry and that it would not happen again. I accept her evidence as to the apology and consider that it amounts to an admission by the defendant.
  5. [106]
    I accept the evidence by the defendant’s father, LY, that the defendant travelled to Mackay on 4 December 2019,[133] but confusion by the complainant as to when the events of count 1 occurred does not cause any doubt in my mind about the events occurring.
  6. [107]
    What has concerned me is whether, mechanically, the defendant could have achieved full penetration of the complainant’s vagina, in the position she describes him, above her with his legs apart. However, given that the elements of rape are satisfied if there is any penetration of the vulva or vagina, I have no hesitation in accepting, beyond reasonable doubt, that at the least, the defendant’s penis was penetrating her vulva, that the intercourse continued to ejaculation, and that her lack of consent, although not verbal, was communicated by her physical attempts to struggle and his holding of her wrists above his head. As noted above, I also consider that the defendant’s apology the next day indicates an acceptance, by him, that the sexual encounter occurred without her consent.

Conclusion

  1. [108]
    In summary, I reject the defendant’s evidence that the events of count 1 did not occur, and that the events of count 2 were consensual. I have set his evidence aside, examined the balance of the evidence, in particular, the evidence of the complainant, whose evidence I considered to be credible, believable and with the clear ring of truth in respect of each of the sexual encounters that she described. She was not shaken in cross-examination, her accounts were plausible, believable, consistent with ordinary human experience and persuaded me, beyond reasonable doubt, as outlined above, that each of the elements of rape, in respect of counts 1 and 2, are satisfied.

Verdict

  1. [109]
    I find the defendant guilty in respect of count 1 – rape and count 2 – rape.

Footnotes

[1] Exhibit I.

[2] Exhibit I.

[3] Exhibit I.

[4] Exhibit I

[5] Exhibit A, p. 15, ll 55 – 57.

[6] Exhibit A, p. 16 , ll 22 – 23, ll 33 – 39.

[7] Exhibit A, p. 17, ll 17 – 26.

[8] Exhibit A, p. 17, ll 36 – 45.

[9] Exhibit A, p. 17, ll 47 – 49.

[10] Exhibit A, p. 17, ll 54 – 55.

[11] Exhibit A, p. 17, l 58.

[12] Exhibit A, p. 18, ll 10 – 13.

[13] Exhibit A, p. 18, ll 17 – 19.

[14] Exhibit A, p. 18, ll 26 – 27.

[15] Exhibit A, p. 18, ll 37 – 38.

[16] Exhibit A, p. 18, ll 45 – 49.

[17] Exhibit A, p. 18, ll 55 – 58.

[18] Exhibit A, p. 19, ll 1 – 25.

[19] Exhibit A, p. 19, l 57 – p. 25, l 1.

[20] Exhibit A, p. 20, ll 36 – 38.

[21] Exhibit A, p. 20, ll 43 – 45.

[22] Exhibit A, p. 20, ll 47 – 58.

[23] Exhibit A, p. 21, ll 7 – 9.

[24] Exhibit A, p. 4, ll 25 – 28.

[25] Exhibit A, p. 4, ll 35 – 39.

[26] Exhibit A, p. 4, ll 49 – 58.

[27] Exhibit A, p. 7, l 33.

[28] Exhibit A, p. 7, ll 26 – 28.

[29] Exhibit A, p. 7, ll 18 – 21.

[30] Exhibit A, p. 8, ll 1 – 3.

[31] Exhibit A, p. 8, ll 10 – 24.

[32] Exhibit A, p. 12, l 56 – p. 13, l 4.

[33] Exhibit A, p. 13, ll 40 – 41.

[34] Exhibit A, p. 14, ll 1 – 16.

[35] Exhibit A, p. 9, ll 18 – 57.

[36] Exhibit A, p. 10, ll 14 – 18.

[37] Exhibit A, p. 10, ll 20 – 30.

[38] Exhibit A, p. 10, ll 42 – 57; p. 11, ll 37 – 39.

[39] Exhibit A, p. 10, ll 44 – 46.

[40] T 2 – 10, ll 15 – 35.

[41] T 2 – 43, ll 35 – 46.

[42] T 2 – 44, ll 3 – 5.

[43] T 2 – 68, ll 16 – 36.

[44] Exhibit 3; exhibit D.

[45] Exhibit E; exhibit F.

[46] Exhibit D, p. 2, ll 50 – 51; p. 3, l 56 – p. 4, l 1.

[47] Exhibit D, p. 8, ll 17 – 21.

[48] Exhibit D, p. 8, ll 20 – 52.

[49] Exhibit F, 1 – 51, ll 3 – 16; 1 – 51 l 20 – 1 – 52, l 12.

[50] T 2 – 6, ll 27 – 40.

[51] T 2 – 6, ll 14 – 39.

[52] T 2 – 7, ll 15 – 45.

[53] T 2 – 8, ll 4 – 10.

[54] T 2 – 8, ll 35 – 47.

[55] T 2 – 22, ll 9 – 11.

[56] T 2 – 23, ll 16 – 23.

[57] T 2 – 24, l 42 – T 2 – 25, l 2.

[58] T 2 – 32, ll 32 – 43.

[59] T 2 – 36, ll 23 – 25.

[60] T 2 – 41, l 21.

[61] T 2 – 47, ll 29 – 36.

[62] T 2 – 49, ll 27 – 28.

[63] T 2 – 49, ll 30 – 31.

[64] T 2 – 53, ll 11 – 30.

[65] T 2 – 53, ll 8 – 16.

[66] T 2 – 56, ll 6 – 8.

[67] T 2 – 57, ll 27 – 29.

[68] T 2 – 63, ll 31 – 37.

[69] T 2 – 64, ll 4 – 9.

[70] T 2 – 65, ll 10 – 30.

[71] T 2 – 42, ll 30 – 41.

[72] T 2 – 42, ll 43 – 44.

[73] T 2 – 44, ll 19 – 23.

[74] T 2 – 44, ll 29 – 44.

[75] T 2 – 45, ll 1 – 3.

[76] T 2 – 68, ll 3 – 43.

[77] T 2 – 68, l 45 – T 2 – 69, l 36.

[78] T 2 – 69, ll 40 – 47.

[79] T 2 – 70, ll 3 – 43.

[80] Exhibit 5; exhibit H.

[81] Exhibit H, p. 61, l 50 – p. 62, l 22.

[82] T 2 – 79, ll 45 – 46.

[83] T 2 – 79, l 1.

[84] T 2 – 80, ll 27 – 28.

[85] T 2 – 81, ll 17 – 33.

[86] T 2 – 82, ll 24 – 32.

[87] T 2 – 83, l 21 – T 2 – 84, l 46.

[88] T 2 – 85, ll 8 – 10.

[89] T 2 – 88, l 44 – T 2 – 89, l 1.

[90] T 2 – 89, ll 15 – 19.

[91] T 2 – 89, ll 25 – 30.

[92] T 2 – 90, l 30 – T 2 – 91, l 23.

[93] T 2 – 91, l 35.

[94] T 2 – 94, T 2 – 95.

[95] T 2 – 98, ll 42 – 43; T 2 – 99, ll 17 – 18.

[96] T 2 – 24, l 42.

[97] T 2 – 25, l 1.

[98] T 2 – 52, l 2.

[99] T 2 – 57, ll 27 – 29.

[100] T 2 – 7, ll 15 – 26.

[101] T 2 – 7, ll 35 – 45.

[102] T 2 – 49, ll 27 – 31.

[103] T 2 – 79, ll 45 – 46.

[104] T 2 – 80, l 1.

[105] T 2 – 80, l 6.

[106] T 2 – 89, ll 17 – 34.

[107] T 2 – 89, l 25.

[108] T 2 – 85, l 35.

[109] T 2 – 83 – T 2 – 84.

[110] T 2 – 89, l 32.

[111] Exhibit I.

[112] T 2 – 85, ll 20 – 28.

[113] Exhibit 5; exhibit H, p. 61 l 50 – p. 62 l 10.

[114] Exhibit D, pp. 9 – 10.

[115] T 2 – 40.

[116] T 2 – 52, 2 – 53.

[117] Exhibit A, pp. 5 – 7.

[118] Exhibit A, p. 8, l. 4.

[119] Exhibit A, p. 8, ll 10 – 12.

[120] Exhibit A, p. ll 22 – 24.

[121] Exhibit A, p. 14, ll 1 – 16.

[122] Exhibit A, p. 15, 56.

[123] Exhibit A, p. 16, ll 1 – 3.

[124] Exhibit A, p. 16, ll 8 – 9.

[125] Exhibit A, p. 17, ll 36 – 37.

[126] Exhibit A, p. 17, l 49.

[127] Exhibit A, p. 17, ll 54 – 55.

[128] Exhibit A, p. 18, ll 8 – 13.

[129] Exhibit A, p. 18, ll 26 – 27.

[130] Exhibit A, p. 19, ll 23 – 25.

[131] Exhibit A, p. 19, ll 2 – 4.

[132] Exhibit A, p. 20, l 47 – p. 21, l 9.

[133] T 2 – 99, l 17.

Close

Editorial Notes

  • Published Case Name:

    R v SBY

  • Shortened Case Name:

    R v SBY

  • MNC:

    [2021] QCHC 37

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    04 Nov 2021

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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