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R v CX[2021] QCHC 46

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v CX [2021] QChC 46

PARTIES:

R

V

CX

(defendant)

FILE NO:

CCJ 438/21

DIVISION:

Childrens Court

PROCEEDING:

Trial – Judge alone

ORIGINATING COURT:

Childrens Court of Queensland, Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9,10 and 13 December 2021 

JUDGE:

Jackson QC, DCJ

ORDER:

Not guilty on all counts on IND 438/21.

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL –  PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE AND SEXUAL OFFENCES  – VERDICT – whether the complainant and defendant engaged in consensual sexual activity – where the complainant is a child – whether defendant believed, on reasonable grounds, that the child was of or above  the age of 16 years – where the defendant’s position is that he had consensual sexual intercourse with the complainant – where inconsistent evidence between accounts of the complainant and preliminary complaint witnesses – where police investigation lacking

LEGISLATION:

Criminal Code Act 1899 (Qld), ss 210(1)(c), 215, 349(1), 615B, 615C

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

CASES:

R v Pentland [2020] QSC 231, followed

COUNSEL:

S Hedge for the Crown

I Munsie for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown

MacDonald Law for the Defendant

Introduction

  1. [1]
    This is a judge alone trial. Section 615B of the Criminal Code Act 1899 (Qld) (“Criminal Code”) provides that so far as is practicable the same principles of law and procedure are to be applied as would the case in a jury trial. Section 615C(3) of the Criminal Code requires these reasons to include the principles of law that I have applied as well as the findings of fact on which I have relied.
  2. [2]
    The defendant is charged with five offences to which he has pleaded not guilty:

“That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.

That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant unlawfully procured the complainant, a child under 16 years, to commit an indecent act.

That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.

That on or about the nineteenth day of June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.

That on or about the nineteenth day June 2021 at Wynnum in the State of Queensland, the defendant raped the complainant.”

  1. [3]
    The crown particulars are that:

“Count 1The defendant penetrated the complainant’s vagina/vulva with his penis, without her giving her consent.

Count 2The defendant put the complainant’s hand on his penis.  She was 12 years old.

Count 3The defendant penetrated the complainant’s vagina/vulva with his penis, without her giving her consent.  The complainant was on top of the defendant.

Count 4 At a point during the episode, the defendant penetrated the complainant’s vagina/vulva with his finger or fingers, without her giving her consent.

Count 5The final act of penetration involved the defendant penetrating her vagina/vulva with his penis, without her giving her consent.”

  1. [4]
    The defendant’s position is that he had consensual sexual intercourse with the complainant.

Elements of the offence

  1. [5]
    In order to prove the offence of penile rape, the crown must satisfy me beyond reasonable doubt that:
  1. (1)
    The defendant had carnal knowledge of the complainant;

Carnal knowledge of the complainant means penetration of her vagina to any extent by the defendant’s penis.

  1. (2)
    Without her consent.

Consent means consent freely and voluntarily given by a person with a cognitive capacity to give the consent.  Amongst other things, a person’s consent to an act is not freely and voluntarily given if it is obtained:

  • by force; or
  • by threats or intimidation; or
  • by fear of bodily harm.
  1. [6]
    In respect of the charge of rape which is alleged to arise from digital penetration of the complainant’s vagina, the crown must satisfy me beyond reasonable doubt that:
    1. (1)
      The defendant penetrated the complainant’s vagina with his finger/s;

The crown needs to prove penetration of the complainant’s vagina to any extent by the defendant’s finger or fingers.

  1. (2)
    Without her consent.

Consent means consent freely and voluntarily given by a person with a cognitive capacity to give the consent.  Amongst other things, a person’s consent to an act is not freely and voluntarily given if it is obtained:

  • by force; or
  • by threats or intimidation; or
  • by fear of bodily harm.
  1. [7]
    In order to prove the offence of indecent treatment of a child under 16, the crown must satisfy me beyond reasonable doubt that:
    1. (1)
      The defendant dealt with a child;

“deals with” includes a touching of the child, by any part of the defendant’s body and the touching of the defendant by the child.

  1. (2)
    The dealing was indecent;

“indecent” bears its ordinary every day meaning; that is, what the community regards as indecent.  It is what offends against currently accepted standards of decency.  Indecency must always be judged in the light of time, place and circumstances.

  1. (3)
    The dealing was unlawful;

“unlawful” means not justified, authorised or excused by law.  Subsection 210(5) provides a potential defence as set out below.

  1. (4)
    The child was under 16 years of age;

There is no dispute that the complainant was under 16 years of age.  Her mother gave evidence that her birthdate is 16 October 2008.

  1. [8]
    Should I not be satisfied beyond reasonable doubt that the complainant did not consent in respect of the counts of rape, I will need to consider whether I am satisfied beyond reasonable doubt that the elements of section 215 (or subsection 210(1)(a) in respect of the digital penetration) of the Criminal Code are made out.[1]
  2. [9]
    In order to prove the offence of unlawful carnal knowledge of a child under 16, the crown must satisfy me beyond reasonable doubt that:
    1. (1)
      The defendant had carnal knowledge of the complainant;

“Carnal knowledge” relevantly means the insertion of the defendant’s penis into the complainant’s vagina.  The offence is complete upon penetration.  Penetration to any degree is sufficient.  Ejaculation is not necessary.

  1. (2)
    The carnal knowledge was unlawful;

“unlawful” means not justified, authorised or excused by law.  In this respect subsection 215(5) provides a potential defence as set out below.  Consent is irrelevant.

  1. (3)
    The child was under 16 years of age;

There is no dispute that the complainant was under 16 years of age.  Her mother has given evidence of her birthdate being 16 October 2008.

  1. [10]
    Also, in respect of the indecent dealing count and carnal knowledge (should I not be satisfied beyond reasonable doubt as to the absence of consent) I will need to consider the terms of subsections 210(5) and 215(5) of the Criminal Code which provide a defence where the defendant believed on reasonable grounds that the complainant was 16 years of age or older.  In order to make out such a defence the defendant bears the onus of establishing it on the balance of probabilities.
  2. [11]
    My role is to determine whether the defendant is guilty or not guilty of the offences.
  3. [12]
    I will now set out the factual background and a summary of the evidence and rival submissions, followed by the directions I have given myself and my disposition.

Factual background

  1. [13]
    On 18 June 2021 the complainant and her best friend AJ decided that they wished to run away from their respective homes together. They travelled by train from their school at Balmoral to the Wynnum Central Train Station.
  2. [14]
    In Wynnum they met a group of boys which included the defendant.  They spent some significant time in each other’s company that evening.
  3. [15]
    It is alleged that the defendant raped the complainant and indecently dealt with her. 

Evidence

First interview with the complainant

  1. [16]
    The complainant first participated in an interview with police on 19 June 2021, a large part of which occurred when she and AJ, (who was also in the room where the offending conduct is alleged to have occurred) were together (“the first interview”).  The first interview was recorded on the body worn camera of Senior Constable Cara Danello (“SC Danello”).[2]
  2. [17]
    During the first interview, the complainant described the sleeping arrangements when she and AJ went to the defendant’s house.  SC Danello identified at this stage that AJ was in the room.  The complainant said she (AJ) heard everything, which AJ confirmed, (although she did not in subsequent interviews) but the complainant gave subsequent evidence inconsistent with this.  Despite it being clear that AJ was going to be a witness of some significance, SC Danello did not separate the complainant and AJ.  AJ only ceased to take part in the conversation when she became uncomfortable with the subject matter being discussed.  As I have set out below each of the police officers who gave evidence recognised that this was not best practice for interviewing given the risks of contamination. 
  3. [18]
    The complainant and AJ each indicated that the defendant had told them he had weapons in the house – a gun and a taser.  The complainant explained that she agreed to get into the defendant’s bed when he said that he was unable to sleep without anyone sleeping with him.  She explained that it was after that that he started touching her.  AJ said that the complainant was asking her whether she should go and sleep with him and she said no.
  4. [19]
    AJ explained that she was sitting down with the complainant’s phone watching the complainant and the defendant and that she heard some weird noises and then knew something was happening, but she just ignored it.  AJ explained that she woke up and the complainant was on her phone, and when AJ lifted the blanket, she saw that the complainant was not wearing any clothes.  It is not clear whether she meant she had underwear on as she has referred to elsewhere in her evidence.[3]  At that point AJ started yelling at them. 
  5. [20]
    The complainant explained that the offending commenced sometime after she moved into his bed.  He said words to the effect of “let’s fuck”.  She said she did not want to.  He began to “finger” her.  She tried to pull his hands away.  He then started removing her pants.  Soon after he got on top of her and penetrated her vagina with his penis.  She explained that he then got off and made her give him a “hand job”.  Following that, he made her get on top of him.  Throughout the offending he was choking her.  He made her give him a hickey.  The complainant said that she stayed in his bed all night because he would not let her go.  She gave no evidence at this stage about getting up out of bed to go to the toilet after having been “fingered” and finding that she was bleeding from her vagina.

Complainant’s section 93A statement

  1. [21]
    On 20 June 2021 the complainant participated in a formal interview with the police which led to the production of a section 93A statement.
  2. [22]
    During the complainant’s section 93A interview she explained that she and AJ had got off the train at Wynnum Central and gone to Coles.  There was a massive group of boys there and she was introduced to the defendant by another boy who had been talking to her and AJ.  The whole group including the complainant caught another train to Manly.  Most of the group went back to one of the boy’s places.  The defendant did not go and stayed with the complainant and AJ.  He asked them whether they had a place to stay to which they responded they did not.  He took them back to his place on the train and snuck them into his house.  They went straight to his room and he brought a mattress in and put it on the floor next to his bed.
  3. [23]
    The complainant explained that about 25 minutes after the lights went out the defendant said to her that he could not sleep and was used to somebody sleeping beside him.  She responded that she would sleep next to him but wanted to go straight to sleep.  She moved from her mattress to his bed. After that she rolled over to face him which seemed to me to be an odd thing to have done, especially for someone who said she was fearful of him.  In any case, she says that he began to rub her inner thigh and then her vagina.  He asked her if she wanted to fuck.  She said no she did not want to.  The complainant explained that she thought that AJ then became concerned about her and the defendant’s conversation and asked whether the complainant was okay.  She said to AJ that she was okay.  She said though at that point that she started to feel really uncomfortable and tried to get down into AJ’s bed.  She said the defendant would not let her.  He then started to remove her clothes.  He said we’re going to fuck.  It is not immediately apparent why she said she was okay if this was not how she was feeling, particularly as on her evidence she felt able to be very forthright with the defendant towards the end of the alleged offending.
  4. [24]
    At first during the section 93A interview the complainant said that the sequence of events was as follows.  The defendant got on top of her and started to have penile vaginal intercourse with her.  She then pushed him off and he got angry.  He choked her.  He then made her sit on his penis.  She then got off and he made her give him a hand job.  He then choked her again and recommenced penile vaginal intercourse.  He then choked her again.  Following that he hit her in the face.  Then he started to finger her and then used three fingers and scratched inside her vagina.
  5. [25]
    She then said that he said to her “just listen to me because I’m your daddy and choked her again.  He then bit her on the neck and choked her again.  He demanded that she give him a hickey.
  6. [26]
    The complainant said that AJ heard everything, and she knew what was going on as well.  When asked how she knew that AJ knew everything, the complainant said: “Cause she told me in the morning”.  Curiously, having regard to that evidence, she also explained that in the morning she decided to tell AJ what had happened.  AJ responded: “Are you fucking serious?”.  It is difficult to reconcile what the complainant may have said about AJ having heard things during the night and her apparent recitation of such issues in the morning.  Also, as is dealt with below, AJ’s evidence appears to be that she did not know much of what occurred and when she was told in the morning, her first reaction was to think that the complainant and the defendant had consensual sex, which was probably because the complainant simply told her that she and the defendant had “fucked”.
  7. [27]
    The complainant explained that she told two of the boys in the “gang”, SP and PR, what had happened. 
  8. [28]
    The complainant described that at first there was light in the room and that after about 25 minutes the defendant turned it off.  At that point she was still on the mattress on the floor with AJ.  They had been lying quietly for that 25 minutes.  She gave evidence that the defendant knew that she was 12 because he had been told that earlier when they were near the train station.  She gave evidence that she and AJ both told the defendant that they were 12 at about 9.30pm on the Friday night when they were near the Wynnum Central Train Station.   She confirmed that AJ was present. AJ did not give evidence as to that.      
  9. [29]
    The complainant gave evidence that the defendant told her that he was 18 when they were in his bedroom.  AJ did not support that evidence. Although AJ did not indicate when she found out, she said that he was 16.[4]
  10. [30]
    The complainant was asked in more detail about the offending and about whether she tried to stop the defendant taking her clothes off.  She said that he was “really vicious” when she tried to stop him doing anything and he was either choking her or hitting her.[5]
  11. [31]
    The complainant explains that the defendant asked her to sit up so that he could take her top off.  When asked what was going through her mind at the time, she said that she was scared, that she had tried to attract AJ’s attention, but her friend told her to get away.  She said she was trying to talk loudly so that the other person in the house would hear.  She explained that she either said (or perhaps thought) when she was trying to attract AJ’s attention: “Could you save me please?”.[6]  She explained that soon after the defendant proceeded to have penile vaginal intercourse with her.  She then said that the second thing that occurred was that he made her give him a “hand job”.  The penile rape was explained as occurring over a period of five minutes and the hand job for about a minute.  She said that the thing that happened next was he made her go on top of him and that penetration occurred for about three minutes.  She explained that after that he had got on top of her again and it was at that time that he ejaculated inside her.  That penetration occurred over a five-minute period.
  12. [32]
    When asked about what AJ had heard she explained that she had heard everything.  When asked how she knew that, she explained that that was because AJ had told her that in the morning. AJ said the following:

“She’s like oh my god.  Are you okay?  I heard everything.  I was like, yeah, I’m okay.”[7]

AJ’s evidence is inconsistent with this as is the complainant’s evidence otherwise – she otherwise suggests that she told AJ what had happened in the morning.

  1. [33]
    The complainant explained that the next morning she and AJ had left their bags at the defendant’s house because they were going to go back with him and because they did not want to carry them around.  She said this despite explaining, when asked how she was feeling about him at the time she left the house, that she and AJ were “scared as hell” and did not want to go near him.  I am also conscious in this respect as to the evidence that the defendant had weapons which he had told the girls about.  It seems to me to be extraordinary that the bags would be left at the house on the basis that they were going to go back there in such circumstances.  This left me with some significant discomfort about the evidence as to what is alleged to have taken place during the night.[8]
  2. [34]
    The complainant explained that this offending took place over a three to four hour period.  When asked about what she had told the uniformed officers when she was interviewed by them about the defendant putting his fingers inside her, and how that fitted into the sequence of events, she said that she could not remember.  Then she explained that when he had three fingers in her vagina, he scratched her and caused her to bleed.  She said that she went to the bathroom and after she wiped there was blood on the toilet paper.  She said she then went back to his bed and the rest of the offending happened, after she was again undressed by him. She explained that the fingering occurred before he required her to be on top of him. She also explained that she thought it was before the hand job.[9]  She also explained that there was blood in the bed when she woke up. 

Complainant’s section 21AK evidence - 29 November 2021

  1. [35]
    The complainant gave evidence in Court on 29 November 2021.  A number of photographs were tendered during that evidence showing bruises or other marks on the complainant’s neck.  Other photographs showing the house in which the defendant lived and his bedroom were also tendered.
  2. [36]
    The complainant gave evidence that the only thing she told AJ was that she was raped.  She said she had no recollection of what she had told SP or PR.
  3. [37]
    During cross-examination it was put to the complainant that she said to AJ that she had fucked the defendant.  She denied that.[10]  The complainant denied that AJ had got upset with her when she found out that she had had sex with the defendant.  She denied that AJ had said to her that she needed to tell her boyfriend and that if she did not then AJ was going to.  She also denied that it was only after this that she told AJ that she had been raped.[11]  I prefer AJ’s evidence in this respect, which, contrary to the submission for the crown, I consider to be quite inconsistent with the complainant’s evidence.
  4. [38]
    As to this same topic, the complainant said that as soon as she woke up, she turned and called AJ over and said to her that she had been raped last night.  She said that AJ said we need to get out of here.[12]  That evidence makes it even more odd, in my view, that the bags had been left at the defendant’s place.  It is also inconsistent with her evidence otherwise that AJ knew exactly what was happening during the night. 
  5. [39]
    It was suggested to the complainant that she was flirtatious with the defendant during the night; that she had unzipped her jumper so as to expose her sports bra and that she was touching him.  She denied those matters.[13]  It was put to her that she told the defendant that she and AJ were 16 after the defendant had said that he was 16.  She denied that and said they had told him they were 12 and he had said “Wow you girls are really young”.[14] 
  6. [40]
    It was put to the complainant that she had asked the defendant to get into bed with him and that she got into bed with him and began kissing him on the neck and lips.  It was suggested that she performed oral sex on him for a few minutes and that after that she began taking her own clothes off.  She denied each of those matters.[15]  It was then suggested to the complainant that she asked the defendant to rub her vagina and that while he originally said no, he ultimately said yes before rolling on top of her and putting his fingers into her vagina.  A few minutes later the complainant asked him whether he wanted to have sex or words to that effect.  He said: “are you sure you want to do this”.  The complainant did not accept any of those matters.[16]  It was then suggested that at some point during sex AJ had woken up and said “what are you doing” to the complainant and the defendant.  The complainant said that she did not recall that.[17]  It was suggested that a little while after that interruption the complainant and the defendant began kissing again before returning to continue having sex.  At that point the defendant was on top of the complainant.  It was suggested that at one point she asked him to stop while he was on top of her which he did and that at that point, she got on top of him, and they continued to have sex.  She denied those matters.[18]  It was suggested that they were each kissing and giving each other hickeys and that the complainant had asked the defendant to give her a hickey.  She denied that.  It was suggested that ultimately the defendant rolled over and was on top of her and ejaculated on her stomach.[19]
  7. [41]
    The complainant repeated her evidence that AJ was asleep the whole night and that at no point did she interrupt them.[20]  The complainant gave evidence during crossexamination that she got dressed again after she had been digitally raped and went to the bathroom.  She said that she was too scared to leave the house at that time and to leave AJ behind.  She said that when she got back to the room she tried to get onto the mattress where AJ was, but the defendant pulled her back into his bed.  When she was asked whether she called out to AJ, she said “AJ was right beside me” rather than answering the question directed at why she would not call out if she was fearful.[21]  She said that he took all of her clothes off again when she got into bed.[22] 
  8. [42]
    When it was put to her that the boys in the group the next morning were asking her about the hickey or hickeys on her neck, she said that she did not recall that, but she did agree that all of those boys knew her boyfriend and they were all mates with him.  When it was put to her that she was concerned that they might find out that she had cheated on her boyfriend the night before she said that she had not cheated but had been raped.  She denied that she was worried that people might assume that she and the defendant had hooked up because they both had hickeys on their necks.[23]  She agreed that all of the people in that group were upset with her because none of them believed her and she accepted that all of that group knew her boyfriend.[24] 
  9. [43]
    The complainant was very reluctant to speak again of the alleged sequence of the sexual interactions on the evening in question.  In this context she said that she did not remember the sequence of events.  She agreed with the proposition that she was lying when she said she did not remember because she did not want to have to answer the question.[25]  I do not attribute any particular significance to this.  She otherwise dealt with the sequence of events in slightly different terms to the previous versions she had given.  She gave evidence that she was “1,000 per cent sure” about the sequence of events.[26]

AJ’s section 93A statement

  1. [44]
    AJ was present for the majority of the first interview as I have mentioned.  She also participated in a formal interview with police on 20 June 2021.  She explained something of the background to she and the complainant being at Wynnum, being that they were each running away from home.  She explained their movements at school prior to travelling to Wynnum.[27]  She said that once the complainant had got into bed with the defendant, he was touching the complainant’s bottom.  She said that she started getting tired and began sleeping.  She said that at some point she heard the complainant yelling “stop” and she woke up.  She identified that the complainant was on her phone when that occurred.[28]  She said that at that time the complainant was trying to tell her something, but she did not know what. AJ lifted the blanket and identified that the complainant had underwear and a bra on but otherwise did not have her clothes on.  The defendant also had underwear on.  She said that the complainant said “please help me, blah, blah, blah”.  The defendant came back into the room after going to the bathroom and told the complainant to get back into bed with him; she having moved to the mattress on the floor while he was out of the room.[29]  The complainant did not give evidence as to these matters.
  2. [45]
    When explaining the events of the following morning, she said that the defendant was putting his face all over the complainant and kissing her.  She said that when he went out of the room the complainant began to cry and told her that the defendant had raped her.  The defendant’s reaction to that crying was to ask why she was crying and to say to the complainant “are you scared of me or something”.[30]  When asked to give more detail of the events of the previous evening she said that when the defendant asked the complainant to sleep with him the complainant was trying to tell her something, but she did not know what.  She told the complainant to shut up.[31]  She explained that a little later she woke up and she asked them what they were doing because she could hear talking.  She said that they were whispering really loudly.  She said that she lifted up the blanket and the complainant was just wearing underwear.  She said “what the hell are you guys doing”.[32]
  3. [46]
    AJ said that when the complainant got into the bed, the complainant explained that she would sleep with him but nothing else would happen, and the defendant’s reaction was “okay”.[33]  Later she said that the defendant was kissing the complainant which she could hear.  She was sitting up watching them.[34]  At that point she said to the complainant that she was going to sleep, and she was tired and told her “not to do anything stupid”.[35]  To me this does not seem to indicate that AJ had any fear for the complainant’s safety as opposed to whether she was going to do something she may regret while in the defendant’s bed.  Although it was not clear when, she said that the defendant was grabbing the complainant by her jumper (which presumably she must have had on at that point) and also pulling her hair.[36]  AJ explained that the defendant was touching the complainant’s hips at the time.  She stopped looking because she explained she did not want to look.[37]  At another point she explained that the complainant was yelling to stop, and the defendant was telling the complainant to shut up, on the basis that he was worried that the other people in the house would be woken up.[38]  When it was suggested to her that when she woke up the complainant was still telling the defendant to stop, her answer was: “Yeah, I think.”[39]  At another point she says that she heard the defendant say: “Oh my god, face me.”[40]  When asked again about whether she heard anything during the night she answered “not really”.  She explained that she could hear them whispering.  She also explained that she could hear “like a clapping noise or something”.[41]
  4. [47]
    When asked again about the conversation in which the complainant told her that she had been raped, more detail came out as to that disclosure.  She said that in the morning the complainant told her that they had “fucked”.  She said she was “so pissed at [the complainant], I was like dragging her by the jumper.”  She explained that she almost broke the complainant’s phone because she was so “pissed at her.  ”She went on to say “and I told her not to. Cause I, that, that, that’s when I didn’t know.  And then I was really pissed. And I was like, I’m going to, I was telling her I was going to tell her boyfriend.” She explained that when the defendant went into the shower, the complainant started crying telling her not to tell her boyfriend.  It was at that point, according to AJ, that “she told me that like um, she told me that she didn’t actually fuck him, he raped her.  And she was crying a lot.”  She went on to say that the complainant was telling her not to tell her boyfriend.[42]
  5. [48]
    That sequence of events, and in particular that it seemed that rape was first mentioned after AJ told the complainant that she was going to tell her boyfriend, leaves me with some significant concern as to what might have occurred.  I am also concerned in this respect to this allegation of rape being later made in the context of the group of youths outside Coles being interested in why the defendant and the complainant (whom they knew had been together overnight) both had hickeys on their necks.

AJ’s section 21AK Evidence – 29 November 2021

  1. [49]
    AJ gave evidence in Court on 29 November 2021.  She gave evidence that there was no conversation at which she was present where there was discussion about how old she and the complainant were.[43]  During her cross-examination she gave evidence as to the version of events on the morning of 19 June 2021 which I have already referred to in summarising her section 93A statement above. She added that the reference she had made to expecting the complainant to tell her boyfriend was that she expected her to tell him she was cheating on him with another person.[44]  AJ gave evidence that the complainant and the defendant made a TikTok video together and she thought that had occurred in the morning.[45] In a similar way to the evidence about leaving the bags at the defendant’s house, this evidence does not sit well with there having been a serious and violent non-consensual sexual ordeal during the night.
  2. [50]
    She said that the complainant and she were planning to meet up with the complainant’s boyfriend on 19 June 2021 and it was then that she planned to tell him about the complainant cheating.[46]  The clear inference was that the complainant would have known this was a realistic possibility.  She said that during the night she could hear the defendant and the complainant whispering and that she was lying awake for two or three hours.[47]  She said that during the night she had interrupted the defendant and the complainant and asked them what was going on and told them to shut up.[48]  She said that she could hear them whispering, could hear the complainant telling him to stop and  could hear the complainant trying to get her attention, but she was too mad to pay attention to that.  She said that she could hear her say stop four or five times.  She said she did not do anything when she heard her say stop.[49]  She said that at one point she could see that neither of them had anything other than their underwear on.  At that time, she asked the complainant why she had her pants off and was yelling at her.[50]  She said that at no time had she observed the complainant going to the toilet during the night.[51]  She gave evidence that she, the complainant and the defendant were all lying on the defendant’s bed in the morning watching TikToks and the defendant was trying to kiss the complainant.  She was not sure whether that was the occasion when the defendant and the complainant did the TikTok video of themselves.[52]  Unfortunately, any video which might have been on the phone was not in evidence.  On another occasion during her evidence AJ accepted the suggestion that throughout the night apart from the time when she woke up and interrupted the complainant and the defendant, she was asleep.[53]

PR - section 93A statement

  1. [51]
    PR was acquainted with the complainant only by following her Instagram account or messaging her through that application.  He said that the complainant told him that she was raped by the defendant.  He explained that the defendant denied this.  He explained that the complainant had said to him that AJ had tried to stop the defendant, but he pushed AJ away and just kept going.[54]  No other witness suggested that happened.  Indeed, the complainant did not give evidence to this effect.  In my view, an inconsistency such as this between the evidence the complainant gives generally, and the terms of the preliminary complaint reflects poorly on the complainant’s credibility and reliability.  It is consistent with her seeking to persuade the recipient of that preliminary complaint as to the truth of what she was telling them, rather than simply recounting something that really happened.  Perhaps this is also reflected in the evidence to the effect that she asked PR whether he believed her.[55]  There was evidence otherwise from the complainant that none of the youths believed her.  Of course, their belief is not relevant except perhaps to the complainant’s state of mind at the time as to whether any of her boyfriend’s mates believed her. 

PR  – section 21AK evidence – 29 November 2021

  1. [52]
    PR had no memory of the complainant telling the defendant that she was 16 years of age in his presence.[56]  PR agreed with the proposition that on the night of 18 June 2021 the defendant and the complainant appeared to be getting on.[57]  PR otherwise confirmed the evidence he had given in his section 93A statement with respect to  what the complainant had told him the next day, and said that the defendant had said that the complainant wanted him, but she said something different.[58]

Senior Constable Kofoed

  1. [53]
    Senior Constable Kofoed (“SC Kofoed”) and his partner were tasked with searching for the defendant the day after the alleged rape. They located the defendant, who was riding his bike along the footpath on Florence Street, which is a street located a block over from Charlotte Street where the church is.  SC Kofoed began to question the defendant through the drivers-side window of the police vehicle.
  2. [54]
    SC Kofoed said in his evidence that he did not recall the conversation very well. He summarised that after some pleasantries with the defendant, the defendant told him that he had had consensual sex with a 12-year old girl the previous night at his house.  SC Kofoed clarified in his evidence that he was paraphrasing that conversation with the defendant, but it “stuck in my mind” that the defendant had said he had had consensual sex with a 12-year old girl the previous night. SC Kofoed then switched on his body worn camera to record the remainder of the conversation.
  3. [55]
    The body worn camera footage[59] started in mid-conversation. It began with the defendant saying that “they [presumably the other youths near Coles] found out there had been cheating going on”. The defendant explained he snuck “a white girl and a Sudanese girl” in to his house because they had nowhere to stay the previous evening. There was some talk about the complainant’s boyfriend and where he was and what the defendant’s “beef” was with him. The defendant explained he did not know at the time the sex occurred that she was in a relationship.
  4. [56]
    The defendant explained that the complainant had been “caught out cheating” and “made the story up”, and that he did not know the previous day how young the complainant was. The defendant remarks that “she ‘s 12”, not “young-young”, but still “younger than she said she was”. He again stressed he only found out that day (the day the body worn camera footage was taken) that the complainant was 12, and exclaims “wow” when he realised he found this out.
  5. [57]
    The defendant further explained that sex with the complainant was consensual, and that in fact the complainant had “gotten in bed” with him despite her saying it was the other way around. He again stresses the complainant had been caught out cheating and consequently made the story up about her being raped to “save her ass”.
  6. [58]
    SC Kofoed was cross-examined about proper police procedure.  He agreed that taking witness statements from two people at the same time about the same event was an inappropriate method of taking witness statements. He also agreed that children are more suggestible than adults and therefore more likely to give contaminated evidence in the event witness statements are taken together.
  7. [59]
    SC Kofoed also conceded that if he had known who the complainant’s boyfriend was he would have tried to get a statement from him.
  8. [60]
    In re-examination, SC Kofoed made clear that this was the first case of this kind he had any involvement in, that he has never worked in the Child Protection Unit and nor has he had any detective training. 
  9. [61]
    I consider the suggested deficits in the investigation are significant failings together with those I refer to below.

Dr Otilie Tork

  1. [62]
    Dr Tork is a paediatric specialist.  She is currently the Acting Medical Director of and one of the senior staff specialists in the Child Protection and Forensic Medical Service at Queensland Childrens Hospital.  She examined the complainant on 19 June 2021.  She was told that there was one episode of digital penetration, two occasions of strangulation as well as vaginal penetration with ejaculation.  It was recited that there had been some vaginal bleeding and dysuria.[60]  Dr Tork gave evidence by reference to the photographs that are exhibit 21.  She expressed the view in relation to the marks on the complainant’s neck that they did not appear to be cohesive as one would expect in a suction injury or a “hickey”, such that she thought that it was more likely that pressure would have caused the marks.  In general terms she said that she thought pressure was more likely than suction in causing the marks and expressed her opinion that all of the marks could be explained by strangulation.[61]
  2. [63]
    In particular, in relation to the mark depicted in figure 1 which is part of exhibit 21, Dr Tork thought that while it could be “mistaken” for a hickey, she did not think it was one.  She thought hickeys in general were more completely covered with petechiae.[62]  Of some significance in relation to this is that one of her reasons for thinking it was not a hickey was because as she explained she had not been given a history that suggested that the complainant had received a hickey.  However, it is uncontroversial otherwise in the matter that the complainant and the defendant gave each other hickeys.  In my view, just as she had been told it was alleged that the defendant had choked the complainant as part of the history upon which she was being asked to express her opinion, she should have been told that it was common ground that the defendant had purported to give her at least one hickey. 
  3. [64]
    Dr Tork also gave evidence that the very faint bruise on her left hand was consistent with being grabbed by someone.
  4. [65]
    Dr Tork gave evidence then of the genital examination of the complainant.  No injuries were observed.  She said it was not unusual to have no injury and that did not signify anything with respect to voluntary or involuntary penile/vaginal intercourse.[63]  Some blood staining appeared on a lower vaginal swab.  That could be from a minor injury within the vagina, perhaps a small abrasion from a fingernail given the history.[64]  Dr Tork gave evidence of the means by which she carried out the DNA swabs.  Ultimately, there was thought to be an issue as to the way in which the swabs were undertaken which required her to be stood down and recalled.  In the end, an admission was made to the following effect:

“The defendant’s spermatozoa was detected on the low vaginal swab, the dry vulval swab and the wet vulval swab taken by Dr Tork.[65] 

She gave evidence that pre-ejaculate may contain spermatozoa.”[66]

  1. [66]
    In relation to the marks on the complainant’s neck, Dr Tork thought that of those marks, figure 1 was the mark that potentially was the most consistent with a hickey.[67]  As to figure 2, she accepted that it was potentially possible that figure 2 could be a suction mark although she thought it was more likely from pressure.[68]  Ultimately, Dr Tork thought that the marks other than that in figure 1 were less likely to be related to hickeys although she accepted that the other marks could potentially be partial hickeys.[69]
  2. [67]
    It is not clear what the origin of the police instruction to Dr Tork to the effect that the other girl was not allowed to enter the room was.  

ST

  1. [68]
    ST is the complainant’s mother.  She gave evidence that the complainant was born on 16 October 2008.  She gave evidence that she did not recall setting up a new email account within two weeks of the pre-record occurring on 29 November 2021.[70]  She said she was unaware of whether the complainant used multiple email accounts but was aware that she had multiple TikTok accounts.[71]  She gave evidence that she never told the police in relation to the complainant’s phone that she only used it for music and she did not use it for texting.[72]  This is relevant to whether the police ought to have asked to search the complainant’s phone. Detective Sergeant Rohan McDonald (“DS McDonald”) seemed to explain that he did not think that it was necessary because he thought the phone had only been used for music.  He conceded that otherwise it would be important to search it.  Had anyone stopped to consider AJ’s evidence as to making a TikTok video in the morning, the phone clearly would have been interrogated.
  2. [69]
    ST gave evidence that she had not kicked her daughter out of home at the time and she had not ever told her that she did not want her at home.[73]
  3. [70]
    In re-examination ST did give evidence about helping the complainant set up a new Gmail account although she could not recall precisely when that was.[74]  She gave evidence that in the week prior to this incident her relationship with the complainant was not great and that the complainant’s relationship with her father was turbulent.[75]

Donna Petersen 

  1. [71]
    Ms Petersen is the vicar of the church near the Coles where the youths were gathered on Saturday 19 June 2021.  She gave evidence that there were girls yelling at AJ and the complainant.  There was yelling and name calling.  AJ and the complainant were not saying anything.  The complainant told Ms Petersen that “he raped me” and she said “I can’t go home because he’s there”.  When she was asked “who raped you?” she said, “the boy at the party”.[76]  During cross-examination Ms Petersen said that she had been asked to drive the girls to “pick up their gear”.  The complainant had said that everyone was “drinking and bonging” at the party.[77]

Andrea McDonald

  1. [72]
    Ms McDonald is Ms Petersen’s daughter.  She was present at the church on 19 June 2021 when she heard the commotion outside.  She heard a male voice say, “I’ve never hit a girl before, but come here”.  She heard the complainant say, “he raped me and I’m not a fucking liar” to two girls outside.  She overheard a conversation between the complainant and Ms Petersen during which the complainant said that she had broken up with her boyfriend and went to a party at another boy’s house and he was the one who raped her.

Detective Sergeant Rohan McDonald

  1. [73]
    DS McDonald is attached to the Bayside Child Protection Investigation Unit.  He was the investigator in this matter. He gave evidence that he sought to obtain a statement from SP and that he went to his residence on 8 July 2021 and spoke with his mother.  She would not allow access to her children.  He watched the body-worn camera footage taken by SC Danello sometime during the investigation and arranged for the photographs which are exhibits 6 to 10 to be taken.  He also arranged for the complainant to go to the hospital and be seen by Dr Tork.  He did not take the section 93A statement from AJ although he arranged for that to be undertaken by others.
  2. [74]
    When it was put to DS McDonald that there were TikTok videos done with the girls and/or the defendant and whether that would be something as an investigator he would want to obtain, he answered, “Yeah potentially”.  Unsurprisingly, DS McDonald said that as a matter of practice, witnesses should be separated to prevent potential contamination of their evidence.
  3. [75]
    DS McDonald accepted that in hindsight photographs should have been obtained of the defendant’s neck depicting the hickey.[78]  DS McDonald explained that at the time of the investigation he was unaware that the complainant had contacted her boyfriend on the morning after the alleged rape but had since become aware of it.  He became aware of it when reviewing the section 93A statement provided by AJ.  He accepted that that was potentially preliminary complaint evidence and that no attempt had been made to contact the boyfriend. He gave evidence that he would have attempted to contact him had he been aware of it sooner and that that should have occurred.

The defendant

  1. [76]
    The defendant gave evidence that the complainant told him she was 16. He also explained that he thought she looked at least 16 and there was nothing from his interactions with her or her appearance that led him to doubt what she had told him.
  2. [77]
    He described that he believed from what he had been told that the complainant had been kicked out of home and that her father had been assaulting her.  He said that he wanted to give the two girls somewhere to stay for the night. 
  3. [78]
    He denied having weapons (other than the sock with the ball in it) and also that he told the girls that he had weapons. 
  4. [79]
    There was no dispute that he and the complainant had sex. His version of events was that it was consensual and that it began as the complainant’s idea rather than his. He described that the complainant asked whether she could get into bed with him and that when she did she began kissing him on the lips and the neck.  He did not accept that her back was turned to him in the bed.  He said that he pulled away at first and then went along with it and started kissing her back. She then pulled his pants off and gave him oral sex. She then took her clothes off. He says he asked whether she was sure she wanted to do this and she asked him to rub her vagina and stick three fingers in.  He then “fingered” her.  He then penetrated her vagina with his penis while he was on top of her.  She said “stop” and he got off her.  She then got on top of him.  At this time AJ woke up (consistently with her evidence but inconsistently with the complainant’s evidence) and asked what they were doing.  They both said “nothing”.
  5. [80]
    In relation to events the next morning, he explained that he saw the complainant sitting on the end of his bed crying and he asked her what was wrong and she said “nothing”.  This must have been shortly after the complainant’s discussion with AJ about what she and the defendant had been doing during the night. 
  6. [81]
    He explained that he then snuck them out of the house and they waited for him at the corner. He rejected the suggestion that they were trying to distance themselves from him. He said that the complainant then told SP that “I supposedly raped her”.  He described that he was very angry about that and started yelling at her. 
  7. [82]
    He accepted that it was possible that he had scratched her vagina with his fingernail.  He accepted that he knew almost nothing about her when they had sex. He reiterated in cross-examination that from her appearance he thought she was 16 or older.  He said he thought she was capable of looking after herself but he nonetheless did not want to leave two girls to sleep on the street and it was for that reason that he invited them to his house. 
  8. [83]
    He denied that his memory of the evening was affected by his methylamphetamine use.  He denied that taking methylamphetamine made him more annoyed when someone disagreed with him or that he might just carry on even if someone says “no”..  He said as to this:

“No. If someone says no, because of  – I’ve seen some stuff that I didn’t want to see happen to my mum and throughout my duration of my life – and when you say no is when – no just means no. Just not going to happen. You’re going to stop. Or no, you’re not getting that is – is just no.”

  1. [84]
    He denied that his reason for refusing the complainant’s request for some of his drugs was because he thought she was too young.  He said instead that he had been adversely affected by his drug use as a teenager and never gave drugs to other teenagers he didn’t know.  He did not accept that he found the complainant to be immature or that he thought she was young.
  2. [85]
    He gave evidence that he now knew the complainant to be the same age as his younger sister. He said:

“I’m just going to say it now: she’s the same age as my baby sister. If I had have known her age, I would not have slept with her.”

  1. [86]
    I found the defendant’s evidence as to these matters quite persuasive. I do not accept that he was told she was twelve years old. 
  2. [87]
    He rejected any suggestion that the complainant had said he was rough or that he was hurting her. He said that she said “stop” on two occasions while he was on top of her and that they then changed position so she was on top of him. 
  3. [88]
    He explained that he ejaculated on her stomach, but I did not take that to be a categoric statement that he withdrew from her vagina well in time to prevent any ejaculate being in her vagina, as opposed to having withdrawn so as to not ejaculate inside her.  In any case, the presence of spermatozoa in her vagina as indicated by the swabs may be explained by pre-ejaculate.

The parties’ submissions

Submissions on behalf of the defendant

  1. [89]
    Defence counsel made submissions:
    1. (1)
      as to the content of the evidence, which I have already set out in some detail;
    2. (2)
      that there were features of the complainant’s evidence, AJ’s evidence and of the investigation that would cause concern as to the credibility and reliability of the crown witnesses and the standard of the investigation;
    3. (3)
      that the Court would prefer the defendant’s evidence and conclude that the crown had failed to establish the offences beyond reasonable doubt and that the defendant had established the defence under subsections 210(5) and 215(5) of the Criminal Code.

Submissions on behalf of the crown

  1. [90]
    The crown submitted that:
    1. (1)
      “the Court would find the complainant … to be a honest and reliable witness as to the elements of each of the charged offences. On that basis, the Court would convict the defendant child of each charge”;
    2. (2)
      this was not an appropriate case in which to give myself a Robinson direction.  I accept that submission.  While there are inconsistencies, and I am concerned as to some elements of the complainant’s evidence they are all matters which I am able to weigh when considering her credibility and reliability without giving myself any particular warning;
    3. (3)
      the complainant’s evidence is corroborated in a number of respects which are set out in paragraph 42 and following;
    4. (4)
      as to these, first, Dr Tork’s evidence was relied upon as being consistent with choking.  However, she also accepted that the largest bruise could be a hickey, but in her opinion it was more likely to be a pressure bruise and while it was possible the petechial bruises were partial or interrupted hickeys, it was less likely.  The difficulty with that, in my view, is that her evidence would have that it is less likely that any of the marks were caused by a hickey even though it is uncontroversial that there was at least one application of that kind of suction to her neck.  Also, she offered these opinions initially without having been asked to assume that such suction had in fact occurred;
    5. (5)
      secondly, the bruises to the complainant’s nose and hand were referred to.  I do not accept that these were intentionally inflicted by the defendant;
    6. (6)
      thirdly, the likely scratch to the complainant’s vagina is referred to.  I do not consider this corroborates non-consensual interaction.  In this context, I also thought that the complainant’s evidence about redressing to go to the bathroom and discover the blood and then being undressed again for the assault to continue (all while her friend was fast asleep) was not credible and reliable;
    7. (7)
      fourthly, I thought the complainant’s evidence as to feeling ejaculate inside her was tentative at best.  Also, while I accept that this is objective evidence consistent with her evidence as to ejaculation, it is not, in my view, inconsistent with a reasonable view of the effect of the defendant’s evidence on this topic, or with the presence of pre-ejaculate, as the crown rightly concedes;
    8. (8)
      fifthly, AJ’s evidence is said to corroborate the complainant’s evidence.  Her evidence also included the statement to the complainant not to do anything stupid which is consistent with the view that she was likely a willing participant. Her evidence of the genesis of the rape allegation and the TikTok interaction the next day is also inconsistent with the complainant’s evidence.  There are multiple other respects in which their evidence is, in my view, inconsistent as I have detailed in my consideration of the evidence;
    9. (9)
      there were a number of features of the complainant’s evidence that support a finding that she is a credible and reliable witness.  For the reasons I have developed elsewhere in these reasons I am not satisfied that she was a credible and reliable witness;
    10. (10)
      the preliminary complaint evidence was consistent although not detailed.  I thought the preliminary complaint to PR was inconsistent for the reasons I have set out.  Also, the disclosure to AJ and the others appears, on the view of the evidence I prefer, to have been driven by factors which undermine any consistency as to the allegations of sexual assault. AJ’s evidence as to this was a much more detailed version of the more brief account she first gave in my view. As I have said, I accept AJ’s evidence as to this and I have noted the complainant’s denials of it elsewhere;
    11. (11)
      there was no particular way for victims of sexual assault to act and thus there was no particular concern arising from the complainant’s evidence about the bags being left behind. While, of course, I accept that there is no universal or even normal way for a victim of sexual assault to act, I consider the evidence about the bags to be very odd along with the evidence as to TikToks in the morning. I also struggle to reconcile the complainant’s evidence of being afraid to speak up with her evidence of telling him to “fuck off” at another time;
    12. (12)
      alleged inconsistency in the sequence of events was more apparent than real.  I accept that the inconsistency in the sequence may not be regarded as being all that significant, although as I have indicated I am troubled by the evidence as to the visit to the bathroom, which was first mentioned in a later version;
    13. (13)
      the defendant’s version was implausible.  I found the defendant’s evidence fitted better with the behaviour of the children the following morning.  I also do not accept that the defendant’s evidence was inconsistent with the medical evidence when one takes a less numerically precise view of his evidence as to the hickey;
    14. (14)
      the Court would act on the complainant’s evidence that she said she was 12.  It was also said by the complainant that the defendant had commented on their young age.  I prefer the defendant’s recollection as to these matters. 

Relevant principles / directions

General application

  1. [91]
    In R v Pentland [2020] QSC 231 Martin J conveniently collected a number of general principles applicable in any criminal prosecution which I have applied and reproduce as follows:

“[12] The prosecution has the onus of establishing the offence charged beyond reasonable doubt.  There is no onus on the defendant.

[13] In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.

[14] The issues that exist must be resolved by taking account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.

[15] The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.

[16] It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it.  The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’ evidence.  I may accept parts of it if I think it is worthy of acceptance.

[17] In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence.  I must not engage in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.

[18] I also bear in mind that there is a difference between honesty and reliability.  A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw.  ...”[79]

Reasonable doubt

  1. [92]
    For the crown to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offences charged.  I have set out the elements in paragraphs [5], [6], [7] and [9] above.
  2. [93]
    It is for me to decide whether I am satisfied beyond reasonable doubt that the crown has proved the elements of the offences. If I am left with a reasonable doubt about guilt, I must find the defendant not guilty. If I am not left with any such doubt, I must find the defendant guilty.
  3. [94]
    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities. That is, the relevant matter must be proved to be more likely than not.
  4. [95]
    In a criminal trial, the standard of satisfaction is much higher; the crown must prove the guilt of the defendant beyond reasonable doubt.

Principles specifically relevant

Section 93A statements

  1. [96]
    The complainant is a child. Her evidence included the statement given to police and admitted pursuant to section 93A of the Evidence Act 1977 (Qld) (“Evidence Act”).   There were two other child witnesses whose evidence was dealt with in the same way.  The recordings were played during the trial. I am conscious and take into account that the presenting of children’s evidence in this way comprises the routine practice of the Court.  This measure is adopted in every case involving children such as the complainant.
  2. [97]
    The recordings were tendered, and I have also been provided with transcripts which were marked for identification.  I have had access to these recordings and the transcripts. I keep in mind that the transcripts are someone else’s impression of what was said during the recorded interviews. They are not evidence and are merely an aid. It is what I heard on the recordings that matters, not what is in the transcripts.  Having said that, there was no suggestion as to any material inaccuracies in the transcripts.  These comments apply equally to other relevant transcripts.

Pre-recorded evidence

  1. [98]
    The complainant gave evidence which was pre-recorded under Division 4A of the Evidence Act. So too did AJ and PR. I take into account the usual directions applying to the evidence of children that:
  1. a)
    at the time the child gave evidence, they were in a room which was separate from the courtroom;
  1. b)
    the evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom;
  1. c)
    at the time the child gave evidence there was a support person sitting in the room with them, and no other person;
  1. d)
    whilst the child gave evidence, all non-essential persons were excluded from the courtroom;
  1. e)
    at the time, 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;
  1. f)
    the child’s evidence was recorded as it was given and that is the recording that was played during this trial;
  1. g)
    the courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the child was played; and
  1. h)
    all of these measures, used for the taking and showing of the children’s evidence, are the routine practices of the Court for taking and showing evidence of children in a case such as this and I must not draw any inference as to the defendant’s guilt because these measures were used. The probative value of the evidence is not increased or decreased because these measures were used, and accordingly, the evidence is not to be given any greater or lesser weight because these routine measures were used.
  1. [99]
    I was told that there was some editing in respect of at least some of the recordings.  In this respect, I would not draw any inference adverse to the defendant as a result of this.

Record of interview / defendant giving evidence

  1. [100]
    As I have indicated above, while the defendant did not participate in a record of interview, he did briefly speak to police on 19 June 2021. Part of that conversation was recorded and SC Kofoed otherwise gave evidence as to that conversation.  
  2. [101]
    In this case the defendant gave evidence. Orders were also made in relation to the way the defendant child would give evidence. He did not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he gave evidence 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 offences beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
  3. [102]
    This is one of the categories of cases sometimes described as “word against word”. In a criminal trial it is not a question of making a choice between the complainant’s evidence and that of the defendant. The proper approach is to understand that the prosecution case depends upon my accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; thus I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
  4. [103]
    Where, as here, there is defence evidence, there is usually one of three possible results:
  1. 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 verdict would be not guilty; or
  2. 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 verdict would be not guilty; or
  3. 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 must 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 proven each of the elements of the offence in question.

Motive to lie

  1. [104]
    In cross-examination, the complainant was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant.  The crown submits that the complainant had no motive to lie.
  2. [105]
    I bear in mind that any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist.  If such a motive existed, the defendant may not know of it. There may be many reasons why a person may make a false complaint.
  3. [106]
    I bear in mind that if I was not persuaded that any motive to lie on the part of the complainant had been established, rejection of such a motive does not necessarily mean that the complainant is truthful. It remains necessary for me to satisfy myself that the complainant is truthful. 
  1. [107]
    As set out above in my evaluation of the evidence, it is possible that the complainant had a motive to lie as put forward on behalf of the defence on the basis that she was concerned about her boyfriend being told that she had cheated on him the previous night, or that other children who saw her and the defendant might draw that conclusion given they slept in the same place and both had hickeys on their neck, although I make no finding as to that.    

Preliminary complaint evidence

  1. [108]
    In this case there is evidence of the complainant’s preliminary complaint to AJ, her boyfriend, PR, SP, Ms Petersen and Ms McDonald.  I have addressed that evidence above.  I bear firmly in mind that this evidence may only be used to assess the credibility of the complainant’s account in the sense that consistency between her account of events and that which she told each of the preliminary complaint witnesses may enhance the likelihood that her account is true. Those out of court statements are not however to be used as evidence proving what occurred.
  2. [109]
    Similarly, any inconsistency between the preliminary complaints and the complainant’s evidence as to what occurred may cause me to have a doubt about her credibility or reliability.  I must consider whether any such inconsistencies are of such a nature as to affect her credibility or reliability or whether they are matters that are explicable in all the circumstances.  Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me to determine.

Alternative charges

  1. [110]
    I understand as I have set out above that carnal knowledge and indecent dealing are alternatives to the rape counts and that, naturally, I may not therefore find the defendant guilty of both.
  2. [111]
    I have considered the rape allegations first and the alternative charges subsequently.

Separate consideration

  1. [112]
    I am conscious that there are five separate charges and 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 crown has proved its essential elements. The evidence in relation to the separate offences is different, and so my verdicts need not be the same.  Also, the elements differ between some of the charges and for that reason, too, my verdicts need not be the same.  I keep in mind that if I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.  I also bear in mind that each of the offences is said to have occurred over a relatively brief period and to involve the same complainant.

Expert evidence

  1. [113]
    Dr Tork gave evidence as an expert witness.  The ordinary rule is that witnesses may speak only as to facts and not express their opinions.  An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise.  One of those fields is medicine.
  2. [114]
    It is up to me to give such weight to her opinion as I think it should be given.  In this I consider it an important issue that in considering the possible causes of the marks shown in the photographs, she was not asked to first assume (as was common ground) that the defendant had given the complainant at least one hickey.  Also, there was no analysis of the kind of injuries said to be ordinarily caused by strangulation including the expected spread and location of petechiae and the possible ways it is caused. 

Distressed condition

  1. [115]
    AJ gave evidence that the complainant was crying when she told her she was raped.  That evidence is simply put forward by the crown as part of the narrative of events which it alleges surrounds the alleged rape.  It is not relied by the crown as independently supporting that the alleged offences occurred.
  2. [116]
    I am conscious that there may be many innocent reasons for the condition at that time, such as: regret after consensual intercourse or sexual contact, or concern about some other issue entirely unrelated to the alleged sexual activity, such as her friend disclosing what had happened to her boyfriend as she suggested she would.  I will disregard the evidence of distressed condition except to the extent that it is part of the narrative of events of that particular day. 

Consideration

The complainant

  1. [117]
    There were several features of the complainant’s evidence when considered with other evidence which led me to have doubts as to the crown case.  At some points the complainant said that AJ had heard everything during the night.  This was said during the interview where the complainant was questioned in AJ’s presence.  That feature itself caused me some concern.  Of more significance though is that on other occasions the complainant gave evidence that she disclosed what had happened to AJ in the morning rather than AJ having heard all of it during the night.  On other occasions she said AJ told her she had heard everything during the night.  AJ’s evidence was clear as to how the allegation of rape arose in the morning. 
  2. [118]
    As I have set out in para [23] above, the complainant gave evidence that she rolled over to face the defendant soon after she got into bed with him which seemed odd for somebody who was a reluctant occupant of his bed.  I also found her evidence that AJ became concerned when she, the complainant, was in the defendant’s bed and asked whether the complainant was okay, to be odd.  I thought the complainant’s response that she was okay was an unusual feature for somebody who claimed to be really uncomfortable and a reluctant occupant of the defendant’s bed.  This is particularly so in circumstances where she said she was trying to get out of the bed and the defendant would not let her.  At other times, she demonstrated on her version of events that she could push the defendant away or tell him in very clear terms to go away. 
  3. [119]
    I found the complainant’s evidence as to the level of fear she and AJ were feeling the following morning to be completely inconsistent with the evidence about their schoolbags being left at the defendant’s house because they were going to return and collect them. It also seems at odds with AJ’s evidence that the three of them were lying together in the defendant’s bed the following morning, and potentially the complainant and the defendant were making TikTok videos together.  That apparent closeness seems odd in respect of a person who had allegedly violently raped the complainant during the night.
  4. [120]
    There were some other less important inconsistencies, such as the complainant gave evidence that she had not picked up half-smoked cigarettes on the street.  I accept the evidence from AJ and the defendant that she did.  There are of course numerous reasons why she may not have wished to agree she had done this and I do not consider it of any great significance.     
  5. [121]
    I found the complainant’s denials of the way in which the allegation was disclosed to AJ entirely inconsistent with AJ’s evidence.  I prefer AJ’s evidence in this respect.

AJ

  1. [122]
    Contrary to the evidence of the complainant about AJ being concerned for the complainant’s safety when she got into the defendant’s bed, I accept AJ’s evidence that the complainant and the defendant were kissing and that she, AJ, said to the complainant when she got into bed with the defendant to not do anything stupid.  AJ’s apparent lack of fear for the complainant in this respect is also consistent with her evidence that she had told the complainant to “shut up” when she was trying to talk to her or attract her attention, and also that when she heard the complainant say “stop” during the night, AJ didn’t ask what was wrong or turn over to face the complainant and the defendant or take any other action at all. 

PR

  1. [123]
    I found PR to be a straightforward and reliable witness.  His evidence that the complainant had told him that AJ had tried to stop the defendant was troubling in terms of the credibility and reliability of the complainant.

The defendant

  1. [124]
    The defendant gave evidence and participated in a brief conversation with SC Kofoed as set out above.  Although there were times when the defendant was clearly impatient during his evidence and where some issues were raised as to what his instructions must have been as to the matters he disputed, I found him overall to be a credible and reliable witness.  I did not think that his answers in cross-examination as to what “hooking up” meant to him and as to whether there was one hickey or more were concerning for a boy who was not overly precise or detail-orientated.       

Police witnesses

  1. [125]
    The police investigation was criticised including because the complainant was interviewed in the presence of AJ, the complainant’s phone was not interrogated, and no attempt was made to ask the complainant’s boyfriend what he had been told by her as to the events of that evening. 
  2. [126]
    I accept that criticism may readily be made of the investigation in these respects.  The contamination issue and AJ’s doubt as to the amount of time she might have been awake and what she might have heard (depending on when you ask her) seems to me to be one symptom of this, but the real difficulty is one would never know the extent to which there had been an effect on their evidence.
  3. [127]
    The issue as to the phone and boyfriend is quite unsatisfactory.  It may have proved very interesting to see the content of the TikTok videos potentially saved in the “drafts” part of the application.

Factual findings

  1. [128]
    I am satisfied that the sexual matters referred to in the crown particulars occurred.  These matters were not seriously contested in cross-examination, although plainly the issue of consent and the order in which these matters occurred was challenged.  In addition, the defendant told SC Kofoed that he had had consensual sex with a 12-year old girl the previous night at his house.  However, I am not satisfied beyond reasonable doubt that the complainant did not consent. 
  2. [129]
    I accept the defendant’s version as to the complainant telling him that she was also 16 and that he believed she was 16.  I accept his evidence that there was nothing about the way she acted or her appearance which caused him to doubt what she had told him.  I accept that there were reasonable grounds for his belief.   

Conclusion

  1. [130]
    My conclusion is that the evidence as a whole (including the defendant’s version) does not establish the rape allegations to the required standard.  Accordingly, in respect of Counts 1, 3, 4 and 5, I find the defendant not guilty of rape.  Further, I am satisfied that the defendant believed on reasonable grounds that the complainant was 16 or older and thus I find the defendant not guilty on the alternative charges of carnal knowledge of the complainant on counts 1, 3 and 5 and of indecent dealing on count 4 and procuring the complainant to perform an indecent act on count 2.

Footnotes

[1]  See subsection 578(1) of the Criminal Code.

[2]  Exhibit 16.

[3]  Page 30.

[4]  At page 23 of her section 93A statement.

[5]  Page 31.

[6]  Page 33.

[7]  Page 50.

[8]  Pages 52 and 53.

[9]  Pages 59-60.

[10]  T1-14/1-6.

[11]  T1-14/8-21.

[12]  T1-14/27-30.

[13]  T1-17/41-T1-18/6, T1-20/36-39, T1-23/35-42 and T1-24/4-9 and exhibit 13.

[14]  T1-18/27-37.

[15]  T1-22/4-30.

[16]  T1-24/35-46.

[17]  T1-25/3-5.  This is consistent with AJ’s evidence.

[18]  T1-25/11-20.

[19]  T1-25/21-36.

[20]  T1-26/3-5.

[21]  T1-26/42.

[22]  T1-26/26-40.

[23]  T1-28/1-20.

[24]  T1-28/41-T1-29/11.

[25]  T1-31/26-30 and T1-32/3-10.

[26]  T1-32/14-T1-33/42.

[27]  Page 4.

[28]  Page 6.

[29]  Page 7.

[30]  Page 8.

[31]  Page 44.

[32]  Pages 44-45.

[33]  Page 45.

[34]  Page 46.

[35]  Page 47.

[36]  Page 47.

[37]  Page 48.

[38]  Page 49.

[39]  Page 49.

[40]  Page 50.

[41]  Pages 55-56.

[42]  Page 56.

[43]  T1-36/17-26.

[44]  T1-38/23-41.

[45]  T1-42/1-9.

[46]  T1-42/43-45.

[47]  T1-43/39-43.

[48]  T1-45/40-46.

[49]  T1-47/21-46.

[50]  T1-48/1-33.

[51]  T1-49/10-11.

[52]  T1-51/14-19.

[53]  T1-52/37-40.

[54]  Page 17.

[55]  See too his evidence to a similar effect during the 21AK hearing – T1-56/30-33.

[56]  T1-55/35-36.

[57]  T1-56/7-15.

[58]  T1-57/35-40.

[59]  Exhibit 18.

[60]  T2-17/35 – 2-18/8.

[61]  T2-21/15 – 18.

[62]  T2-21/35 – 41.

[63]  T2-23/26 – 34.

[64]  T2-24/16 – 23.

[65]  Exhibit 23.

[66]  T2-48/12 – 15.

[67]  T2-52/5 – 9.

[68]  T2-52/15 – 18.

[69]  T2-53/10 – 18.

[70]  T2-42/40 – 42.

[71]  T2-42/44 – T2-43/4.

[72]  T2-43/5 – 6.

[73]  T2-43/31 – 34.

[74]  T2-44/36 – 41.

[75]  T2-45/36 – 2-46/16.

[76]  T2-5/37 0 46.

[77]  T2-6/19 – 29.

[78]  T2-62/12 – 15.

[79]R v Pentland [2020] QSC 231 at [12]-[18].

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Editorial Notes

  • Published Case Name:

    R v CX

  • Shortened Case Name:

    R v CX

  • MNC:

    [2021] QCHC 46

  • Court:

    QChC

  • Judge(s):

    Jackson QC, DCJ

  • Date:

    16 Dec 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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