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R v CM[2022] QCHC 11

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v CM [2022] QChC 011

PARTIES:

R

v

CM

(defendant)

FILE NO:

CCJ 634/21

DIVISION:

Childrens Court

PROCEEDING:

Trial – Judge alone

ORIGINATING COURT:

Childrens Court of Queensland, Beenleigh

DELIVERED ON:

18 February 2022

DELIVERED AT:

Beenleigh

HEARING DATE:

14 and 15 February 2022

JUDGE:

Jackson QC, DCJ

ORDER:

Not guilty on all counts

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL –  PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – RAPE AND SEXUAL OFFENCES  – VERDICT – where the defendant is charged with three counts of rape – where there was a delay in any complaint being made – whether the complainant’s evidence was reliable and established the rape allegations beyond reasonable doubt – whether the defendant is guilty or not guilty of the charges.

LEGISLATION:

Criminal Code Act 1899 (Qld), ss 6(1), 348, 349, 615B, 615C

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

CASES:

R v Pentland [2020] QSC 231, cited

COUNSEL:

A Vanenn for the Crown

L Dollar for the Defendant

SOLICITORS:

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

YFS Legal 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. Subsection 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 three counts of rape of the complainant on a date unknown between the first day of July 2019 and the thirty-first day of July 2019 at Beenleigh in the State of Queensland.  He has pleaded not guilty to these charges.
  1. [3]
    The Crown particulars[1] are that:

“Count 1 The defendant penetrated the complainant’s mouth with his penis without her giving her consent.

Count 2 The defendant penetrated the complainant’s vagina with his finger/s, without her giving her consent.

Count 3 The defendant penetrated the complainant’s vagina with his penis, without her giving her consent.”

  1. [4]
    There is no issue as to the defendant and the complainant having met at or around the time of the charged date range.  Otherwise, the defendant’s position is that the charged acts simply did not occur. 

Elements of the offence

  1. [5]
    In respect of the charge of rape which is alleged to arise from penetration of the complainant’s mouth by the defendant’s penis, the Crown must satisfy me beyond reasonable doubt that:
  1. The defendant penetrated the complainant’s mouth with his penis;

The Crown needs to prove penetration of the complainant’s mouth to any extent by the defendant’s penis.

  1. Such penetration was 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. 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. Such penetration 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 penile rape, the Crown must satisfy me beyond reasonable doubt that:
  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. Such carnal knowledge was 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. [8]
    My role is to determine whether the defendant is guilty or not guilty of the offences.
  2. [9]
    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. [10]
    The complainant described that she and her then best friend, N, travelled on a bus to Beenleigh Station, probably on 23 or 24 July 2019.  There was no evidence as to why they travelled on a bus to Beenleigh at that time.   The complainant described that when they got to the station, there were a few “sort of friends” being the defendant and some other boys - M, U and K. [2]  She and N went to say hi to them, then, when it was getting dark and she wanted to leave, the complainant said the group would not let them leave and, later, it was too late and they had missed their bus.  The group of children hung around for a period of time at the train station.
  2. [11]
    It is alleged that later the defendant forced the complainant to give him oral sex.  Then, some time after that and in a different location, he raped her both digitally and with his penis.

Evidence

Complainant’s section 93A statement

  1. [12]
    On 13 September 2020, the complainant participated in a formal interview with the police which led to the production of her s 93A statement.
  2. [13]
    During the complainant’s s 93A interview, she explained that she and N travelled on the bus to Beenleigh Station.  She believed that this happened in July the year before the interview, that is, July 2019.  When asked how she knew that it was July last year, she said she just remembered because it was July.  She said maybe it was on the 23rd or 24th of July.  When asked if there was any reason why she remembered it was that date, she said “it’s traumatic”.  When asked whether there was anything else that happened around that time (that might allow one to identify the occasion), she said no.
  3. [14]
    The complainant was born on 4 July 2005, making her 14 at the time of the alleged incident, 15 at the time she spoke to police and about 16 and a half years of age at the time she participated in the pre-recording of her evidence pursuant to s 21AK of the Evidence Act 1977 (“Evidence Act”), in this Court on 2 December 2021.
  4. [15]
    The complainant says that when they got to the station “a few like, sort of friends of ours” were there.  She said that was the defendant M, U and K.  She and N went to say hi to them where they were sitting on the stairs near the shops.  She explained that when she wanted to leave “cause it was getting dark” they would not let her and N leave and then later it was too late and they had missed their bus to get home and U had taken her phone.  She explained that the significance of that was that she could not call anyone and she did not think that her friend had a phone. 
  5. [16]
    She described that they just wandered about while at the train station although, then she said she did not really remember that part, but they were there (that is, at the station) for a while and were mucking around with a speaker.[3]  Then it got dark and she started getting scared because she was about to miss the bus and then they did miss the bus and she said that she was “freaking out” even more.  The bus apparently would have left at about 6.20pm.  She described that she was shaking and stuff.  She also said she was cold.  She says that then they were taken to Subway or near Subway.[4]

The complainant explained that U took her phone and was using it to look at Instagram.  When she asked for it back, he would routinely say “no” and/or “in a bit”.[5]  It should be noted that initially the complainant said that her phone was taken later in the night.  It was only when she was asked this question: “[s]o, that was before they took you to Subway to (sic)?”, that she clarified that it had been taken at this earlier time. 

  1. [17]
    When asked to explain what she meant by the others not letting her leave, she explained that when she and N would walk off, the others would come up and say “no, not yet”.  She went on and said:

“They kept like walking towards us I’m pretty sure and saying no, you can’t leave.”[6]

  1. [18]
    She could not remember whether there was anything else they were doing along these lines.  She describes that someone found money on the ground and then they went to Subway.  She says “they took us” behind there (behind Subway) for a bit, and just wandered around for maybe two hours.  She says that then the defendant took her near some other little place across the road.[7]  She describes that she and the defendant wandered off from behind the Subway, when the others came about 10 minutes later.  She says that she thinks she and the defendant were behind the Subway by themselves for about 15 minutes before the others came.
  2. [19]
    When asked if anything happened during that 15 minutes, she describes that the defendant started kissing her and stuff.  She says: “we were just kissing and stuff”.  She says that then the others came around and they (she and the defendant) went somewhere else.[8]  She explains that they went somewhere else and he made her suck his penis. 
  3. [20]
    When asked to give more detail as to what was happening, she explained:

“Well I just think we were kissing. I think that’s it.  I don’t really remember, so.  And just wrapping his arms around me and stuff”.[9]

  1. [21]
    When asked to give more detail about sucking the defendant’s penis, she says the following (with my emphasis):

“He asked me have I ever given head before, and I said no.  He said, oh you should do it.  And I was like, I didn’t really want to.  He said, oh you should though.  I felt pressured and I didn’t want to but I ended up doing it.  Don’t remember why”.[10]

  1. [22]
    When reminded that she had said that she felt pressured, the complainant said:

“Ah, like he kept saying I should but I didn’t want to cause I had like never done that before, was too young and stuff.  He kept saying I should and he kept saying it wouldn’t end well there too [INDISTINCT].  I don’t think he could really do much cause it was like in the open, really.  I was ….”[11]

  1. [23]
    As is readily apparent from the photographs of the location where the complainant says that she had oral sex with the defendant,[12] it was certainly in the open.  In one sense, what she said about thinking he could not really do much because it was in the open, seems to indicate that she did not think that he could follow through with any threat he might have made.  Perhaps of more significance though, if she genuinely thought that at the time, it is not at all clear why she went to a house with him later which was clearly not out in the open. 
  2. [24]
    She describes that after that threat she went ahead and did it.[13]  When asked how it stopped or when it stopped, she responded “I don’t remember.”[14]  When asked what happened next, she said, in effect, that she and the defendant may have stayed there (on the footpath presumably) for a bit more and then gone back to the others.  It is not immediately apparent why she would have stayed for a bit, given what is alleged to have just occurred.  In any case, she then returned with the defendant to the others behind Subway.  They then all went together to KFC for food or a drink.[15]  They walked to M’s house after that.  Why the complaint would have done that is not obvious given what is said to have taken place just previously.  It is not immediately clear why she would not have said something to N, particularly as she describes it as being a long walk to get to M's house, and N was her best friend. 
  3. [25]
    She then describes the accommodation at M’s house.  She says that she and the defendant were on one bed and U and N were on an immediately adjacent mattress on the floor.  She says that at that point he threatened her for the second time and made her have sex with him.[16] 
  4. [26]
    As to this, she says:

“Said it wouldn’t end well again and then he pinned me down and started doing it, and when I like tried saying stop, I said it and he wouldn’t stop.  I was trying to pull him off of me but he’s pretty strong so I couldn’t .”[17]

  1. [27]
    She clarifies that immediately after that alleged threat, he had taken all her clothes off and:

“He was on top of me and like, fingering me and like, having sex with me at the same time.  Like it hurt a lot and I was trying to tell him to stop and pull him off of me, but he wouldn’t stop, and he just kept going.”[18]

  1. [28]
    She clarified that these things happened at the same time and in the same place.  She says that she kept saying stop and he just ignored her.[19]  She says that U and N were there as well and she thinks that they also had sex but she thought that N wanted to do it.[20]  She said that after it had finished and the defendant ejaculated in her vagina she was scared because no protection had been used and she did not want to get pregnant.[21]  They went to sleep.  She guessed that it was about two o’clock in the morning.[22] 
  2. [29]
    The next morning most of the occupants of the house appeared to have made their way to the train station and she and N went to Southbank.  She says that N slept over at her place the following night because she was too scared to be alone.  Somewhat surprisingly in that context, she seems to have not discussed the matter at all with N.  When asked about this, she said she had not really discussed it with her.  She sought to explain this by saying that they (being a reference to the defendant and U) “said we can’t tell anyone what happened.”  That seems to be clearly a reference to the defendant and U telling the complainant and N that they could not discuss it with anyone which makes it difficult to understand why it is that this provides any sensible explanation for the complainant not discussing the matter with N.  That is especially so, when she says she needed her, N, at her place for comfort the next evening.[23] 
  3. [30]
    In terms of preliminary complaint, she explained that she had told her mother maybe four or five months after this happened.  She also said she had told her psychologist.[24] 
  4. [31]
    She explained that the reason she only reported it when she did was because she had been too scared and just embarrassed.  However, she added that she was kind of sick of hiding as well.[25]

Complainant’s section 21AK evidence – 2 December 2021

  1. [32]
    The complainant gave evidence in this Court on 2 December 2021.  Two sets of photographs were tendered during that evidence depicting the area where she says the first count of rape occurred[26] and the house where the second and third counts occurred.[27] 
  2. [33]
    She explained by reference to exhibit 2 where count 1 is alleged to have occurred.  It is certainly clear that it was a very public area, being really nothing more than a grass strip of footpath, although below the nearby main road. 
  3. [34]
    During cross-examination, the complainant explained that she had seen the defendant once before at a party, but not properly met him.[28]  It was suggested to her that she had a crush on him and that prior to the day of this incident there had been a rumour going around at her school that she had a crush on him.  It was also suggested that she had been telling people at school before this day that she and the defendant had hooked up.  She denied each of those propositions.[29]  She did however concede that when she saw him at the train station, she went up and said hi to him.[30]  As I have said, there was no evidence as to why the girls had travelled to Beenleigh. 
  4. [35]
    She was cross-examined about having told the police that, once she met the others at the train station and went to leave, they would not let her leave and she missed her bus.  At first, she accepted the proposition that this was prior to when she had said that U had her phone and would not give it back to her.[31]  Surprisingly when she was asked to confirm that she was not suggesting that anyone had a physical hold of her.  She said “I don’t remember”.  Even when it was suggested to her that had someone physically stopped her from leaving the train station, she would remember that she said again “I don’t remember”.  That seemed to me to be an odd answer and I observed she looked down as she gave it.[32]  She rejected the suggestion that by the time she and N met with the boys they had already missed their bus and that it was already dark.[33]  Likewise, she rejected that she and N were laughing and talking about the fact that they had just missed the bus and that no one stopped her from getting the bus.[34] 
  1. [36]
    She was cross-examined about what became an important feature in her evidence which was that she did not ever call her mother to come and get her or otherwise take any steps to leave or alert anyone to what had happened.  A central part of her explanation was that she did not have her phone.[35]  She gave a number of answers saying that she did not recall when it was that her phone was taken from her and that she could not recall what she had told the police about that either.[36] 
  2. [37]
    The complainant denied the suggestion that at no time did she attempt to leave or say that she wanted to go home.  She said we did - I did.  There was never any detail as to what was said about this.  As to the phone, she recalled that she got it back the next day although was not able to provide any detail as to when.[37] 
  3. [38]
    It was suggested to the complainant that her phone had not been taken from her and she had it the whole night and it certainly was not the reason that she missed her bus home.  She rejected all of those matters although she did agree that she told her mother in November 2019 that they had taken her phone away from her so she could not ring (perhaps seeking to explain how it came to be that she had stayed away from home all night).[38]  She said in this context that she could not recall whether her mother had asked her why she had not called.  She looked very uncomfortable during this exchange about what she had discussed with her mother about the phone.[39]  She was asked more questions about whether anybody had physically restrained her and stopped her from leaving and whether she had said to her mother that they had a “tight hold” of her.  She said that she could not remember in relation to these things.[40] 
  4. [39]
    She said in answer to a question as to whether the police had ever asked to look in her phone that she did not have her phone and it was smashed and she also confirmed that she had never been asked to provide phone records.[41]  When cross-examined about whether N had her phone there on the night, and whether she asked her whether she had her phone with her, obviously, so she might have used it to contact someone, she said that she could not remember.  She seemed to think about this question, coming where it did after a number of questions about N’s phone, and to look quite uncomfortable as she gave her answer.[42]
  5. [40]
    That evidence as to whether or not her best friend had her phone and whether or not she would have known she did had an air of unreality.  Of course, if the complainant had known that her friend had her phone her evidence as to not contacting her mother because her phone had been taken would have been clearly nonsense.
  6. [41]
    When cross-examined about whether there was any kissing in the alleyway (that is, behind Subway) the complainant was adamant that there was not but then when asked whether there was any kissing before the grassy area she said she could not really remember. This cross-examination was in reference to what she had told the police about the 15-minute period they had been together before wandering off from the Subway area.[43] It was put to the complainant that she had been spending a lot of time close to the defendant around the Subway area before she went off with him. She said she did not remember standing near him. She said that she thought she was with N as opposed to the defendant. She rejected that she was smiling at him and that she rubbed her hand on his and that she gave him hugs.[44] She rejected that she had grabbed his hand and said let’s go for a walk.[45] She rejected the proposition that there was no oral sex whatsoever at the grassy area. She rejected the proposition that he did not force her to perform oral sex on him. She said that she could not recall saying to the police that she did not think he could really do much because it was “like in the open”.[46] This was after she had initially agreed, without any hesitation, that she had told them that. I was left wondering whether she came to realise that there was some significance to this issue. 
  7. [42]
    When it was put to her that upon returning to the Subway area with the defendant (being the person who on her version of events had just raped her) she did not tell anyone about it, call her mother or ask anyone for help, her general reaction was that there was no one around.  When she was reminded that N was there and asked why she did not ask to use her phone she said I did not know if she had one.[47]
  8. [43]
    She rejected the proposition that she and the defendant were holding hands upon their return to the Subway area.[48]
  9. [44]
    When cross-examined as to whether she said to N on the way to the house “hey I’m scared. I don’t want to go back to the house”, she said that she did say to N she was scared and that she actually told her a few times. When asked whether she told the police that she had told N that, she said no I did not remember that bit and confirmed that she was only remembering it as she gave her evidence.[49]
  10. [45]
    She confirmed that she did not tell any of the people in the house that she needed help but explained that those people were not near her.[50] When cross-examined about what it was that U and N were doing nearby, she was somewhat surprisingly reluctant to concede that they were having sex.  She said she could not remember saying anything to that effect to the police.[51] She confirmed that she had told him to stop and that she was struggling quite hard and trying to push him off and she was saying no, however, somewhat inconsistently with that she could not remember whether she had said that just once or more.[52]  She then went on to say that she said stop multiple times.[53]
  11. [46]
    She agreed with the proposition that her then best friend ignored her calling out stop multiple times and, presumably the sounds of her struggling.[54]  It seems very odd that the complainant wished to spend the next day and night with her if this is true.  Although she gave evidence that she and N stopped talking and N kept hanging out with the defendant and others,[55] there was no evidence as to what was behind this falling out. 
  12. [47]
    Somewhat remarkably, she gave evidence for the first time in cross-examination that she put her mouth on his penis in the bedroom because he forced her to. The following exchange took place:

“You didn’t tell the police about that? --- Forgot about that. That wasn’t the main thing.

Okay. So now you’re saying that there was oral sex in the bedroom as well? --- yes.”[56]

SQ’s section 93A statement   

  1. [48]
    On 3 June 2021, SQ participated in a formal interview with the police which led to the production of a s 93A statement.
  2. [49]
    She lived at the relevant house with her father and her brothers M and K. She explained that about 2 years earlier the complainant, the defendant and others came to her house at about midnight.
  3. [50]
    She recalls seeing the complainant and N in the morning and seeing hickeys all over their necks.[57] She was with the others when they went to the train station in the morning.[58]

SQ’s section 21AK Evidence – 2 December 2021

  1. [51]
    SQ gave evidence in this Court on 2 December 2021. She explained the layout of the house about which there does not appear any controversy. She agreed that when the complainant and N came to the house everyone seemed happy enough and like they were having a good time.[59] She also confirmed that she saw both the girls again the next morning and noticed the hickeys on their necks. She confirmed again that they seemed happy enough and no one was saying that they wanted to go home or did not want to be there.[60] She also confirmed that everyone walked to the train station the next morning, being a 20 to 25 minute walk, and everything seemed friendly enough to her and she did not think that the complainant was trying to get away although she did mention that she was not talking to the others apart from N who she understood to be a friend of hers.[61] SQ, too, was going to Southbank the next morning. Although she got on a train to Southbank with her friend, the complainant and N did not and instead remained at the train station with the boys, including the defendant.[62] It appeared to SQ that the complainant wanted to stay at the station rather than get on the train with her and go to Southbank.[63]

The complainant’s mother   

  1. [52]
    The complainant’s mother gave evidence about a text message received from the complainant in November 2019.  That text message sought to explain that she had been distant and angry recently because she had been raped but otherwise said that she did not wish to speak about the matter anymore.  Her mother sought to talk to her at that stage, but she did not want to talk.
  2. [53]
    On 14 August 2020 they went together to the police station.  They spoke together after the visit to the police station.  Her mother asked her as to the nature of the rape.  The complainant said there was actual forced sexual intercourse or words to that effect.
  3. [54]
    Her mother also gave evidence that her husband, the complainant’s father, had died several years earlier, and the complainant had been struggling with that.  She was out that night with N and her mother was not really expecting her home.  She explained that she knew she needed some time out which she says was a reference to dealing with her father’s death.  Her mother assumed that she was staying with N.
  4. [55]
    Her mother confirmed that she had asked the complainant why she had not called for help or sought help from others and the complainant had explained that they had taken her phone and that she had been “held tight” or words to that effect.

Plain Clothes Senior Constable Samuel Alfred

  1. [56]
    Senior Constable Alfred gave evidence of the attempts to question N, K, M and U.  He also gave evidence that he became aware during the course of the investigation that the defendant’s date of birth was 11 February 2004.  He otherwise confirmed that, unsurprisingly, having regard to the passage of time there were no other steps that could have been taken to seek to obtain independent evidence which would corroborate or discredit the complainant’s version.

The parties’ submissions

Submissions on behalf of the Crown

  1. [57]
    The Crown submitted that:
  1. The evidence of the offending almost entirely rests upon whether the Court accepts that the complainant is an honest and reliable witness;[64]
  2. There are potentially corroborative components being the evidence of SQ who observed the hickeys on the complainant’s neck and the preliminary complaint evidence to the complainant’s mother;
  3. As to the complainant’s evidence that the digital penetration and penile penetration occurred at the same time it was said that “arguably there could be a fact-finding exercise that this meant it occurred simultaneously or as part of the same transaction”.  I accept that the fact that the complainant referred to these two matters as occurring simultaneously need not be taken completely literally.  I deal with this issue further below in considering the submissions for the defence;
  4. The complainant’s demeanour is indicative of her being a truthful witness.  Reference is made to R v Hyde.[65]  That is that the demeanour of a witness might be relevant, and in this case, it is for me to assess whether any apparent distress during giving evidence is genuine.  Of course, I must also bear in mind that there might be any number of explanations for that distress which do not necessarily indicate she is truthful.  The complainant’s emotion appeared spontaneous and genuine when she got teary, and she appeared embarrassed talking about the incident and these matters were indicative of her being a truthful witness.  For the reasons I have developed elsewhere in these reasons I do not accept that the complainant is a credible and reliable witness;
  5. The fact that many of the complainant’s answers during cross-examination were “I don’t remember” should not be necessarily indicative of her being a dishonest or misleading witness.  It was said that the context was very important.  In that respect it was said that she was an ordinary 16-year-old girl in an unfamiliar formal environment being required to answer questions from people she does not know about very personal matters such that some unwillingness to talk about the incidents in these circumstances ought to be expected.  The difficulty with that as I see it is the content of some of the matters she said she did not remember.  As I have set out elsewhere there were occasions where she clearly did remember something and gave a spontaneous answer and then sought to say, “I don’t remember”.  The main difficulty with answers of that kind is that it leaves one in the position of wondering which portions of her evidence could be considered reliable and which are not;
  6. As to what might be regarded as her odd behaviour on the evening including voluntarily spending additional time with the defendant, not seeking help, not talking to her best friend and placing herself in a position where, if her other evidence is to be accepted, she believed that the defendant might not have the same impediment to carrying out threats, this can be put to one side because there is no “normal” way for a person to react in a situation like this.  It is said that it should be borne in mind that she had only just turned 14 and her evidence as to the embarrassment she felt might explain why she did not speak to strangers.  None of those submissions deal with the fact that she did not speak to her best friend who was also present.  Also, she seemed to say she did not think the defendant could do much as to his threat in the grassy area.  Despite that way of looking at it, she stayed in his company, went to a restaurant with him, went on a long walk with he and others, went to a house he was staying at, into a bedroom with him and got into bed with him.  While, of course, I accept that there is no normal way for a victim of a sexual assault to behave, I thought that this behaviour was quite troubling, after having appropriate regard to the complainant’s age at the time;
  7. As to the additional details that were mentioned for the first time in cross- examination[66] it is said that those inconsistencies could be seen as the hallmarks of an honest witness doing their best to tell the truth;
  8. The complainant did not exaggerate her version of events.  Specifically, it was said that she did not refer to physical violence or being dragged back to the house or anything of that kind.  The difficulty with that submission is that she did refer to two threats and her phone being taken away from her as a reason for her not contacting anyone and as to not being allowed to go home.  Unless those matters are immediately accepted as true then there may be exaggeration.  For example, she seems to have told her mother words to the effect that she was held tight.  That is the only time she said anything of the kind.  Otherwise, she has claimed to not remember whether she was physically restrained;
  9. Consent does not appear to be a real issue in the trial given the defendant’s position is obviously that none of the sexual incidents that he is charged with occurred.  I accept in those circumstances the submission that mistake of fact would not be open as there would be no realistic evidence in the sense referred to by Sofronoff P in R v Makary;[67]
  10. The complainant should be regarded as an honest and reliable witness and I should be satisfied beyond reasonable doubt that the defendant is guilty of all three counts.

Submissions on behalf of the defendant

  1. [58]
    Defence counsel made submissions:
  1. As to the content of the evidence, which I have already set out in some detail.  I will nonetheless address a summary of those matters below;
  1. That there were features of the complainant’s evidence that would cause concern as to her credibility and reliability;
  2. As to the elements of the offences and the relevant principles to be applied which I have set out below and which I will not repeat;
  3. As to the provision of a Robinson[68] direction, a significant forensic disadvantage direction in accordance with s 132BA of the Evidence Act and a direction as to distressed condition being only part of the narrative.  As will be apparent from the directions I have set out below I accept these submissions, although the significance of a Robinson direction in a judge alone trial is questionable given the underlying justification for such a direction.  The reality is that I am already aware as a result of the circumstances pointed to by the defence and which I have referred to elsewhere in these reasons that it is necessary for me to take those matters into account in considering the evidence of the complainant before I would arrive at a conclusion of guilt based upon her evidence;
  4. To the effect that this was an all or nothing case and was not one where alternative verdicts might appropriately be considered.  I accept that submission and note that no alternative verdicts were sought and nor is this a case like some others where an alternative of unlawful carnal knowledge or indecent dealing might clearly arise on the evidence;
  5. That there were a number of very problematic features of the complainant’s evidence leading to the submission that overall she was not an impressive or reliable witness.  While I will summarise some of the submissions on this topic, I have already dealt with these features, in my view, in the course of reciting the evidence and more significantly in my consideration of the complainant’s evidence which I have set out below;
  6. In summary that the Court ought to entertain reasonable doubt about the complainant’s evidence for the following reasons:[69]
  1. (a)
    there is no corroboration of any of the controversial aspects of the complainant’s evidence;
  1. (b)
    there was no medical examination;
  1. (c)
    the complainants frequent resort to “I don’t remember” particularly when challenged in cross-examination indicated an unwillingness to make concessions examples of which are as follows:-
  1. (i)
    she was unwilling to concede that she had never been physically restrained;
  2. (ii)
    she initially sought to deny that there had been cuddling and kissing in the bedroom but then changed her answer to “I don’t remember”;
  1. (iii)
    she did not deny that she had also given the defendant hickeys – she was only prepared to say “I don’t remember”;
  2. (iv)
    she generally used the response “I don’t remember” when challenged in cross-examination;
  1. (d)
    her inconsistent statements and unwillingness to accept having previously made inconsistent statements examples of which are as follows:
  1. (i)
    her denial of kissing prior to the alleged oral rape despite having spoken at some length about such kissing to the police officer;
  1. (ii)
    the timing surrounding when her phone was taken from her;
  1. (iii)
    her denial of telling her mother that they had a “real tight hold” of her;
  1. (iv)
    who it was who told her the following day not to tell anyone about what had happened – at first U and the defendant but by the time she was cross-examined the defendant only;
  1. (e)
    the vague and uncertain nature of aspects of her evidence;
  1. (f)
    the improbability of her best friend not intervening given the complainant’s description of what occurred in the bed;
  1. (g)
    the improbability that the penetration giving rise to counts 2 and 3 occurred “at the same time”;
  1. (h)
    her failure to make any complaint to her best friend despite the fact that she had been present in the room at the time and that they spent the next day and night together;
  1. (i)
    the absence of a timely complaint;
  1. (j)
    her failure to mention the threat when initially describing count 1 to police;
  1. (k)
    her conduct after count 1 and the defensive and deflective nature of her answers when questioned about her opportunity to seek help rather than going to the house;
  1. (l)
    her evidence as to her state of mind given in explanation as to why she left the KFC to walk to the house;
  1. (m)
    her deflective answers and willingness to guess regarding whether or not the best friend had her phone with her;
  1. (n)
    her addition of details for the first time in cross-examination;
  1. (o)
    her preparedness to guess as to whose room she had gone into for example;
  1. (p)
    her seeking to distance herself from the ability to seek assistance when arriving at the house;
  1. (q)
    her reluctance to acknowledge during cross-examination that U and N were having sex on a mattress next to the bed that she was in despite having spoken to police about that topic;
  1. (r)
    her failure to take the opportunity to catch the first train to Southbank instead of staying at the station with the boys including the defendant;
  1. (s)
    the fact that once she had her phone back on the train she did not use it to contact her mother;
  1. As to there being an evidentiary basis to conclude that there were no abrasions or scratches for the complainant to take a photo of.  To the extent that it matters given the issues I have addressed elsewhere in these reasons, I do not accept that the extracted portion of the evidence set out in paragraph 86 of the written submission would allow such a conclusion because there were, at least on one view, two topics addressed in the relevant question;
  2. That the complainant anticipated questions including as to why it would have been that she did not ask to use N’s phone leading to her answers to questions about that being that she did not know whether she had her phone and did not see her with it.  As will be apparent from what I have said elsewhere in these reasons I accept that there were troubling aspects of the complainant’s evidence, of which this is an example;
  3. That her evidence given when she was being challenged on why it was she went back to the house and whether she went there because she wished to go there should be treated with caution.  In a passage set out in paragraph 137 of the written submissions the complainant explained to the police officer that she “didn’t know what was going on”.  As I have set out elsewhere, although there is of course no particular way in which victims of sexual assault behave, the amount of time spent with the defendant seemingly voluntarily after the complainant said she had already been orally raped by him caused me significant concern;
  4. In a similar vein, that the context in which the detail was added as to the complainant having told N that she was scared, was important.  It was submitted that context was her being challenged as to her claim that she did not wish to go back to that house and that this reflected poorly upon her evidence generally.  I accept that submission;
  5. As to those who were present at the house when she arrived and her conflicting evidence about that.  It is apparent from the passage set out paragraph 143 of the written submissions that the complainant at first confirmed that SQ and her father were present in the house and that SQ also had a friend there.  When she was asked whether they were awake when she got to the house she said “I’m not following”.  She then said she did not remember whether they were awake.  That was an odd response given she had just given evidence that they were there.  Further, in relation to SQ’S father, the evidence otherwise is that he was not there in the morning so she cannot have seen him on that occasion;
  6. That it was extremely unlikely that the alleged offence which is the subject of counts 2 and 3 occurred in the bedroom in the presence of others without them being heard or noticed in some way and it is especially odd that the complainant’s best friend would have just ignored what was happening, if the complainant is otherwise to be accepted as to that evidence;
  7. That the alleged attempt by the Crown to disavow the suggestion that counts 2 and 3 occurred simultaneously should be rejected because, so it was submitted, the complainant was clear in relation to this and had plenty of opportunity to clarify what was said about the “same time”.  On reflection as I have said elsewhere it does not seem to me that her evidence in this respect was that precise.  Given the matters I have addressed elsewhere the topic is largely academic in any case;
  8. That the text message in November 2019 could not constitute preliminary complaint as it was not about the alleged offence.[70]  But it must be borne in mind that the text asserted that the complainant had been raped which, in my view, is quite unlike the situation in KAW concerning the sausage.  That statement of being raped may well be taken to be a reference to each of the three counts and thus may be able be attributed to all of them rather than none of them.  I otherwise agree with the submission relating to the conversation of 14 August 2020 to the effect that it could only sensibly relate to count 3.  Submissions are made in paragraph 180 as to why I would not accept this aspect of complaint as enhancing or bolstering the complainant’s credibility.  I accept those submissions.  I also accept that there are other aspects of the preliminary complaint which are, at the least, difficult in terms of the preliminary complaint being something that might be said bolster the complainant’s credit;
  9. As to motive to the effect that this arose because the complainant was being laughed at and bullied at school over saying she was dating the defendant.  Whether or not I accepted that that motive existed, it is plain that the complainant had been threatened by a girl at school over the defendant and that was significant enough to change schools.  I accept that the existence of this feature whether or not it is necessarily suggestive of a reason for animosity towards the defendant is a reason for exercising some caution with respect to the complainant’s evidence;
  10. As to the nature of the disadvantage under s 132BA of the Evidence Act and the need to take that into account.  I have dealt with this below in relation to that direction;
  11. As to neither of the matters the Crown pointed to as being potentially “corroborative components” being able to be described in that way.  The first relates to the hickeys and I accept that is not corroboration of the charged acts because there was no suggestion from the defence that there was no conduct which might have led to the hickeys.  In fact, they were positively pointed to in cross-examination.  Secondly, the preliminary complainant cannot be regarded as corroboration given it is made by the complainant and it is relevant only to consistency and is not independent proof of anything.

Relevant principles / directions

General application

  1. [59]
    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.  ...”[71]

Reasonable doubt

  1. [60]
    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] and [7] above.
  2. [61]
    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. [62]
    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. [63]
    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. [64]
    The complainant is a child. Her evidence included the statement given to police and admitted pursuant to s 93A of the Evidence Act. There was another child witness 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. [65]
    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, although there parts said to be “indistinct” which I could decipher listening to the recording.  These comments apply equally to other relevant transcripts.

Pre-recorded evidence

  1. [66]
    The complainant gave evidence which was pre-recorded under Division 4A of the Evidence Act. So too did SQ. 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;
    2. (b)
      the evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom;
    3. (c)
      at the time the child gave evidence there was a support person sitting in the room with them, and no other person;
    4. (d)
      whilst the child gave evidence, all non-essential persons were excluded from the courtroom;
    5. (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;
    6. (f)
      the child’s evidence was recorded as it was given and that is the recording that was played during this trial;
    7. (g)
      the courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the child was played; and
    8. (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.
  2. [67]
    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.

Defendant not giving evidence, where no adverse inference

  1. [68]
    The defendant has not given or called evidence.  That is his right.  He is not bound to give or to call evidence.  The defendant is entitled to insist that the prosecution prove the case against him, if it can.  The prosecution bears the burden of proving the guilt of the defendant beyond reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution.  It proves nothing at all, and I must not assume that because he did not give evidence that adds in some way to the case against him.  It cannot be considered at all when deciding whether the prosecution has proved its case beyond reasonable doubt, and most certainly does not make the task confronting the prosecution any easier.  It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.

Motive to lie

  1. [69]
    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. [70]
    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. [71]
    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. 
  4. [72]
    As set out below in my consideration of the evidence, something happened at school in early August 2019 which concerned another girl threatening the complainant concerning the defendant in some way.  I do not know what this threatening behaviour actually concerned in any detail beyond that it had something to do with the defendant.  I would not accept that this would give rise to a motive to lie without understanding more about it, although it leaves me with some concern as to what the specific issue was about.   

Delay in prosecution and significant forensic disadvantage

  1. [73]
    There was delay in the complaint being made in this matter.  I am satisfied that the defendant has suffered a significant forensic disadvantage because of the effects of delay in this matter.  What follows largely records the submissions for the defence on this topic which I accept. 
  2. [74]
    The delay has resulted in a lack of opportunity to prove or disprove the allegation by, for example, a timely medical examination.  The complainant’s account includes that the defendant ejaculated in her vagina without a condom.  Also, on one view, of the complainant’s evidence she alleges that counts 2 and 3 occurred at the “same time”.  A medical examination soon after the alleged offences clearly had the potential to cast light on these critically important aspects of the complainant’s evidence, and potentially assist the defence case.
  3. [75]
    The delay has resulted in the loss of potentially relevant and probative evidence.  The complainant’s account to police was that she was prevented from catching her bus, and her phone was taken from her.  Her phone was never seized as part of the investigation.  By the time she gave evidence at the pre-record, she claimed that it had since been smashed and replaced.  Potentially as a result of the delay, but also possibly because the police did not make a relevant request, no analysis of the phone was undertaken.  Analysis of the phone’s contents, such as call records, or messages sent, might have had the potential to prove or disprove her allegation that her phone was taken from her and not returned until the next day.  An adverse finding on this point had the potential to impact her credibility and reliability more generally.
  4. [76]
    The preliminary complaint evidence commenced with the sending of a text message from the complainant to her mother.  The mother has since got a new phone, and the message has not been able to be produced.  This has led to a loss of the chance to confirm the words used in the text message (to see the precise words used in the message and to consider the potential for cross examination as to inconsistency) and to analyse the context of any earlier or subsequent messages that may reveal or cast light on the context in which the message was sent.
  5. [77]
    The delay has resulted in uncertainty as to the precise date of the offence which, together with there being a significant passage of time, impacts upon the ability to investigate the existence of potential witnesses, including passers by at the grassy area, as well as CCTV evidence from the train station, KFC and Subway.
  6. [78]
    The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.   Evidence has been destroyed or lost.  The defendant has lost the opportunity to bring forward evidence that may cast doubt on the complainant’s account. 

Distressed condition - only part of the narrative

  1. [79]
    The complainant refers in her s 93A statement to being “messed up in the head” and cutting her legs.
  2. [80]
    I accept that this evidence of distress does not independently support that the alleged offences occurred.  It is simply part of the narrative of the complainant’s account.
  3. [81]
    There may be many innocent reasons for the condition, such as regret after consensual sexual intercourse or sexual contact (particularly in circumstances where the complainant claims to have had a boyfriend), or concern about some other issue entirely unrelated to the alleged sexual activity.  For instance, the complainant’s mother spoke of the complainant having left the house on the night in question, due to needing “time out” and difficulties dealing with the death of her father.
  4. [82]
    The evidence of distressed condition should be disregard except to the extent it is part of the narrative.

Robinson

  1. [83]
    It was submitted that I should warn myself, consistent with Robinson,[72]  that the evidence of the complainant should be scrutinised with great care before relying on it.  The submitted reasons are that:
    1. (a)
      The complaints are not corroborated;
    2. (b)
      there are significant inconsistencies in her account;
    3. (c)
      by the time that she was cross-examined, she frequently answered to the effect that she did not remember, even in response to matters she had previously given evidence of in the s 93A; 
    4. (d)
      the complainant added details that had not otherwise been mentioned previously to police.
  1. [84]
    As I have said above, I am sceptical of the value of such a direction in a judge alone trial, however, I have taken into account these features in any case.

Preliminary complaint evidence

  1. [85]
    In this case there is evidence of the complainant’s preliminary complaint to her mother.  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 a preliminary complaint witness 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. [86]
    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.

Separate consideration

  1. [87]
    I am conscious that there are three 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.

Consideration

The complainant

  1. [88]
    There were several features of the complainant’s evidence which when considered with other evidence led me to have doubts as to the Crown case.
  2. [89]
    Firstly, I thought that the passage from her s 93 statement which I set out in paragraph [21] above was quite remarkable that is she ended up having oral sex with him but did not remember why. Secondly, in a similar passage which I have set out in paragraph [22] above, she said that in terms of the threat that proceeded that oral sex she did not really think that he could do much because they were out in an open area. As I have said, it is readily apparent from the photographs that it was a very open area. If she thought that he could not really do anything it is hard to understand why the threat had any great significance to her. But also, as I have set out in paragraph [23] above, if she thought that the reason he could not do anything was because they were in the open that makes it very difficult to understand why she would thereafter go on a long walk with him, to a restaurant and then spend the night with him.  I found her evidence on this topic generally unsatisfactory including as I have also mentioned above in paragraph [41] that although she initially readily agreed that she had told police that she did not think he could do much in term of a threat she then seemed to seek to retreat from that position.
  3. [90]
    Thirdly, she explained that after the encounter in the grassy area she may have stayed there with the defendant for a bit, then gone back with the defendant to the others behind Subway and then proceeded to stay with him for the balance of the night including going to a restaurant and on a long walk. During all of that she did not disclose to anyone what had happened or that she was scared or anything else. She sought to explain that by reference to her phone having been taken from her which is a topic I return to below.
  4. [91]
    Fourthly, immediately adjacent the bed she spent the night in she appears to have believed that her then best friend and another boy were having sex. She says that during the time she was in the bed with the defendant she was regularly saying stop, seriously struggling, trying to push him off and so on. Despite all of that, no opportunity was taken to tell N anything and nor did N seemingly notice anything untoward happening in the bed next her. She says in this context that she kept saying stop. It is clear from her evidence otherwise that from her point of view U and N who in the adjacent bed were awake during this time.
  5. [92]
    Fifthly and related to the fourth matter, it is surprising that at no time does she suggest that she said anything to N, given N was her best friend, that they spent the day at Southbank together the next day and then the night at the complainant’s place (apparently because the complainant needed to have her there given what had happened). To the contrary, she sought to explain that by saying that the defendant and U had told them that they could not tell anyone. That was obviously no explanation as to why she and N who had been told the same things would not be able to discuss it amongst themselves. All of this, in the context where she said she was worried about getting pregnant because no protection had been used, is quite extraordinary.  At another time she said she thought N knew what had happened, so it is not clear why she would not talk to her about it.
  6. [93]
    Sixthly, I was concerned as to her evidence when she was asked to confirm whether or not she was suggesting that anyone had a physical hold of her and her answer was “I don’t remember”. This was even after it was suggested to her, as would obviously be the case, that she was likely to recall if somebody was actually physically restraining her from leaving. She looked very uncomfortable while giving that evidence. Similarly, she looked uncomfortable when she was cross-examined about having told her mother that she had been “tightly held”.
  7. [94]
    Seventhly, she agreed during cross-examination that she told her mother in November 2019 that her phone had been taken away from her and that was clearly part of an explanation to her mother as to why it was that she had stayed out all night without contacting her mother, or did not tell her about what allegedly happened. I thought it was most unusual in this context that she said she could not recall whether her mother asked her why she had not called when clearly the conversation about the phone must have been directed at something of that kind. Again, she looked very uncomfortable during this exchange.
  8. [95]
    Eighthly, related to the seventh matter, when she was cross-examined about whether or not her best friend N had her phone there on the night including being asked about whether she had noticed her having it the next day when they were at Southbank or the following evening at the complainant’s house, she said she could not remember. She seemed to actually think about this question before answering and again she looked very uncomfortable. Obviously, if the complainant had known that her friend had her phone her evidence as to not contacting her mother because her own phone had been taken would be nonsense. She could have used her friend’s phone.
  1. [96]
    Ninthly, there were two pieces of evidence she gave for the first time during cross-examination that caused me some concern as to whether she was a credible and reliable witness. The first occasion I have addressed in paragraph [44] above.  That was her evidence that she had told N on the walk from KFC to M’s house that she was scared. She said that she told her a few times. She confirmed that she was only remembering that as she gave her evidence. Also as set out in paragraph [47] above, she gave evidence that she put her mouth on the defendant’s penis in the bedroom because he forced her to. When asked why she did not tell the police about it she said she forgot about it.
  2. [97]
    Tenthly, there was evidence that she changed schools because a girl at school was threatening her about a boy in July or August 2019 and that boy was the defendant.  There was no explanation in the evidence as to what lay behind this or who the girl might have been and how this fitted with the complainant’s other evidence.  That left me quite uncertain as to a potentially significant issue.

SQ

  1. [98]
    I found SQ to be a straightforward and reliable witness and have no reason to doubt that her evidence as to the absence of any sign of distress in the complainant and her staying at the station after SQ and her friend went to Southbank.  

The complainant’s mother

  1. [99]
    I found the complainant’s mother to be a perfectly straightforward and reliable witness and have no reason to doubt anything that she said.  Most relevantly her evidence is admissible as preliminary complaint evidence, although the use that may be made of it is fairly limited as I have dealt with above.

Senior Constable Alfred

  1. [100]
    It was apparent from Senior Constable Alfred’s evidence that he had sought to do the best he could having regard to the lapse of time and that all appropriate steps have been taken to seek to obtain other evidence which might be relevant to the investigation.

Conclusion

  1. [101]
    My conclusion is that the evidence does not establish the rape allegations to the required standard.  Accordingly, I find the defendant not guilty of rape. 

Footnotes

[1]MFI “A”.

[2]The complaint had seen the defendant once before but not met him and knew of U but had not met him.

[3]Whether that was a speaker used through one of their phones was not the subject of any evidence.

[4]See page 13 of the complainant’s s 93A statement.

[5]See page 14 of the complainant’s s 93A statement.

[6]See page 15 of the complainant’s s 93A statement.

[7]See page 15 of the complainant’s 93A statement.

[8]See page 15 of the complainant’s 93A statement.

[9]See page 16 of the complainant’s 93A statement.

[10]See page 16 of the complainant’s s 93A statement.

[11]See page 17 of the complainant’s s 93A statement.

[12]Exhibit 2.

[13]See page 18 of the complainant’s s 93A statement.

[14]See page 19 of the complainant’s s 93A statement.

[15]See page19 of the complainant’s s 93A statement. 

[16]See page 22 of the complainant’s s 93A statement.

[17]See page 22 of the complainant’s s 93A statement.

[18]See page 23 of the complainant’s s 93A statement.

[19]See page 24 of the complainant’s s 93A statement.

[20]See page 27 of the complainant’s s 93A statement.

[21]There was no evidence that this concern led her to talk to anyone or seek any advice.

[22]See page 27 of the complainant’s s 93A statement.

[23]See page 28 of the complainant’s s 93A statement.

[24]See page 30 of the complainant’s s 93A statement.

[25]See page 30 of the complainant’s s 93A statement.

[26]Exhibit 2.

[27]Exhibit 3.

[28]T1-19/40-45.

[29]T1-20/7-15.

[30]T1-20/4-5.

[31]T1-20/45-46.

[32]T1-21/1-9.

[33]T1-21/11-21.

[34]T1-21/31-35.

[35]T1-21/34.

[36]T1-22/20-T1-24/1.

[37]T1-24/3-21.

[38]T1-25/7-20.

[39]T1-25/17-31.

[40]T1-25/30-45.

[41]T1-25/47-T1-26/9.

[42]The whole sequence is at T1-26/14-T1-27/7.

[43]T1-27/33 – T1-28/5.

[44]T1-28/15-31.

[45]T1-28/39-40.

[46]T1-29/5-43 – T130/5-16.

[47]T1-30/45 – T1-31/20.  See also T1-31/25-35, T1-32/9-16 and T1-32/34 – T1-33/24.

[48]T1-31/21-24.

[49]T1-35/35-46.

[50]T1-36/35-36.

[51]T1-37/19 – 1/38/30.

[52]T1-39/21-46.

[53]T1-43/8.

[54]T1-44/6.

[55]In her s 93A statement, although she was reluctant to concede that: T1-46/5-21.

[56]T1-41 at 34-44.

[57]See pages 7 and 8 of her s 93A statement.

[58]See page 9 of her s 93A statement.

[59]T1-9/35-44.

[60]T1-10/36 – T1-11/14.

[61]T1-11/37 – T1-12/6.

[62]T1-12/11-25.

[63]T1-12/31-33.

[64]Crown submissions at para 9.

[65][2017] QCA 148 at [121].

[66]See para 29 of the Crown’s submissions.

[67][2018] QCA 258.

[68](1999) 197 CLR 162

[69]The summary submissions are set out in para 83 and the more detailed basis of those submissions is set out in the following 30 pages of the written submissions.

[70]Reference is made to R v KAW [2020] QCA 57.

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

[72] Robinson v R (1999) 197 CLR 162; [1997] HCA 42.

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Editorial Notes

  • Published Case Name:

    R v CM

  • Shortened Case Name:

    R v CM

  • MNC:

    [2022] QCHC 11

  • Court:

    QChC

  • Judge(s):

    Jackson QC, DCJ

  • Date:

    18 Feb 2022

Appeal Status

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