R v CK[2022] QCHC 18

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is a juvenile and has elected a trial by judge sitting without a jury, pursuant to s 103 of the Youth Justice Act 1992.
2. [2]
   To avoid identification of the parties, names and locations have been anonymised.
3. [3]
   The defendant pleaded not guilty to five counts of rape. The charges and the relevant particulars are as follows:

COUNT 1 That on a date unknown between the nineteenth day of November, 2020 and the twenty-third day of November, 2020, at [redacted] in the State of Queensland, CK raped DD.

This was the first occasion and occurred in the [redacted] bus during the camping trip at [redacted]. CK penetrated DD’s mouth with his penis.

COUNT 2: That on a date unknown between the nineteenth day of November, 2020 and the twenty-third day of November, 2020, at [redacted] in the State of Queensland, CK raped DD.

This also occurred on the bus during the camping trip at [redacted], on the same occasion as Count 1. CK penetrated DD’s vagina with his penis.

COUNT 3: That on the eighteenth day of February 2021, at [redacted] in the State of Queensland, CK raped DD.

This is the second occasion and the first time something happened in the [redacted] toilet blocks at [redacted]. CK penetrated DD’s vagina with his finger or fingers.

COUNT 5:That on the eighteenth day of February 2021, at [redacted] in the State of Queensland, CK raped DD.

This also occurred in the [redacted] toilet blocks at [redacted], on the same occasion as Count 3. CK penetrated DD’s vagina with his penis.

COUNT 7: That on the twenty-third day of February 2021, at [redacted] in the State of Queensland, CK raped DD.

This is the last occasion and the second time something happened at the [redacted] toilet block at [redacted]. CK penetrated DD’s vagina with his penis.

4. [4]
   Counts 4 and 6 were discontinued by the Crown during the trial and do not need to be considered.
5. [5]
   My role is to determine whether the defendant is guilty or not guilty of each of those charges. He is presumed to be innocent, and will remain so unless and until I am satisfied of his guilt beyond reasonable doubt, the burden of proof of which lies on the prosecution at all times. There is no burden on the defendant to prove anything in this trial.
6. [6]
   In order to succeed in the prosecution, the prosecution must prove beyond reasonable doubt each of the following elements of the offences.
7. [7]
   For the counts of penile rape (counts 2, 5 and 7), the elements are that: 

   1. The defendant had carnal knowledge^[1] of or with the complainant; in that he penetrated her vagina with his penis, to any extent;
   2. Without her consent.
8. [8]
   For the count of oral rape (count 1), the elements are that the defendant:

1. Penetrated the mouth of the complainant;
2. To any extent;
3. With the defendant’s penis;
4. Without the complainant’s consent.

9. [9]
   For the count of digital rape (count 3), the elements are that the defendant:

1. Penetrated the vagina of the complainant;
2. To any extent;
3. With his finger or fingers;
4. Without the complainant’s consent.

10. [10]
    Penetration to any degree is sufficient. It need not be proven that the penetration occurred over any particular period of time, nor that it caused any physical injury, or that there was ejaculation.
11. [11]
    Penetration will have occurred without consent if the complainant has not given consent to it.
12. [12]
    I have considered and applied the definition of ‘consent’ in s 348 of the Criminal Code. In considering consent, I have also had regard to the relevant appellate authorities including R v Makary [2019] 2 Qd R 528 (Sofronoff P, with whom Bond J agreed).
13. [13]
    The issues in the trial, based on the parties’ cases, are consent and mistake of fact as to consent, although I must of course be satisfied of all elements of the offence before I may convict on it, and I must be satisfied that the Crown has excluded or negatived mistake of fact.

Mistake of fact as to consent

14. [14]
    It is accepted by the Crown and defence, and I am satisfied, that for each count there is evidence giving rise to the defence of honest and reasonable mistake of fact, pursuant to s 24 of the Code. The Crown must also satisfy me beyond reasonable doubt that the defendant did not have an honest and reasonable but mistaken belief that the complainant was consenting to the acts of penetration.
15. [15]
    If I am satisfied beyond reasonable doubt that the complainant was not in fact consenting, I must still consider whether the defendant, in the circumstances, honestly and reasonably believed that the complainant was consenting. 
16. [16]
    In deciding whether the defendant’s belief was honest and reasonable, I may have regard to anything the defendant said or did to ascertain whether the other person gave consent to the act. A mere mistake by the defendant is not enough. The mistaken belief in consent must have been both honest and reasonable.  An honest belief is one which is genuinely held by the defendant. A defendant’s belief is reasonable, when it is one held by the defendant, on reasonable grounds. The complainant says that she did not consent and made that clear to the defendant by her words and actions. 
17. [17]
    It is for the prosecution to prove beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.
18. [18]
    Accordingly, if I find that the complainant was not in fact consenting, I must ask myself whether I am satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable belief that she was consenting.
19. [19]
    If the prosecution have satisfied me beyond reasonable doubt that the defendant did not have such a belief, I must find the defendant guilty. If I am not so satisfied, even though the complainant was not consenting, I must find the defendant not guilty.

Principles of law

Onus and standard of proof 

20. [20]
    The defendant is presumed to be innocent, and will remain so unless and until I am satisfied of his guilt beyond reasonable doubt on each count.  In order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. The burden of proof lies on the prosecution at all times. There is no burden on the defendant to prove anything, nor is he obliged to give evidence or call witnesses or otherwise produce evidence.
21. [21]
    If I am left with a reasonable doubt about guilt, my duty is to acquit: that is, to find the defendant not guilty. If I am not left with any such doubt, my duty is to convict: that is, to find the defendant guilty.

Impartiality 

22. [22]
    In arriving at my verdicts I must act impartially and dispassionately; relying only on the evidence received at the trial; acting without prejudice or sympathy to the defendant, the complainant or anyone else; not letting emotion sway my judgment; and putting aside anything else I might have heard about the matter beforehand or which is irrelevant.  

Verdicts based on evidence

23. [23]
    My verdicts must be based on the evidence I accept, taking into account the directions and warnings that I must follow and heed.
24. [24]
    The Crown and defence have agreed upon certain facts contained in two documents, exhibits 1 and 13. Because those facts have been admitted, I treat those facts as proved. I have had regard only to the testimony and the exhibits put before me and the admissions made in the trial. No external influence or information has played any part in my deliberations.

Evidence 

25. [25]
    The issues must be resolved on all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which I consider might have been raised by the evidence, or which conceivably arise about the facts.
26. [26]
    The evidence which I accept and that which I reject may be based on many things, including what a witness said; the manner in which the witness said it; the general impression which he or she made when giving evidence; and my assessment of the other evidence, including that given by the other witnesses and the various other documents and material in evidence.
27. [27]
    In the case of conflicts in the evidence it is for me to decide whether they are important to resolve, or unnecessary, given the views which I reach about other parts of the evidence, when I assess the evidence and the cases which the parties have advanced.
28. [28]
    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. I am entitled to accept or reject such parts of the evidence as I think fit. It is for me to decide whether a witness is telling the truth and correctly recalls the facts about which he or he has testified.
29. [29]
    The honesty, accuracy and reliability of the evidence must be assessed using common sense and experience, and in light of the whole of the evidence adduced at the trial.  I do however recognise that there are particular limitations on what can be concluded from a visual impression alone of the witness, and their demeanour alone.
30. [30]
    There is a difference between credibility (honesty) and reliability. A person might honestly believe what he or she said 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.  This might become apparent, when other objective evidence is considered.  
31. [31]
    It is a matter for me to decide whether or not I accept the evidence given by any witness. If I conclude that particular evidence is not truthful or reliable, I will not take it into account in determining whether the prosecution has established guilt.  
32. [32]
    The ultimate decision as to what evidence I accept and what I reject is mine. In arriving at my conclusions I may also take into account relevant parts of other evidence, including that of other witnesses and the facts which are not in dispute, in deciding whether to accept or reject a particular witness’s evidence, or a particular part of their evidence, or in deciding how persuasive I find evidence to be that I consider to be truthful and reliable. 
33. [33]
    I am also not obliged to accept the whole of the evidence of a witness. I may accept some parts of a witness’s evidence and reject other parts, if I find some part of that evidence to be unreliable. Or I might not accept part of a witness’s evidence, because I consider that the witness had some motive to conceal, or to embellish the evidence which they gave, or to distort the truth. 
34. [34]
    The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’s evidence. I may accept the remainder of the witness’s evidence if I think it is worthy of acceptance.

Inferences 

35. [35]
    Before drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find established by the evidence. I must examine the evidence with care, and I must consider whether it is reliable, before drawing any conclusions from facts which I find established. This requires a process of reasoning undertaken with logic and care, avoiding 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.

Child witnesses

36. [36]
    The prosecution called evidence from four child witnesses, including the complainant. Part of the child witnesses’ evidence comprised their conversations with police, respectively:

1. The complainant was recorded at school on 23 February 2021. It was an audiovisual recording that went for about one hour and thirty minutes.
2. Her friend, RB, was recorded at boarding school premises on 23 February 2021.
3. Her friend, EM, was recorded at school on 23 February 2021.
4. Her friend, KK was recorded at the police station on 15 March 2021.

37. [37]
    Those conversations were recorded and the recordings were played to me. The presenting of the children’s evidence in this way is the routine practice of the court.  This measure is adopted in every case involving children such as these witnesses. I do not draw any inference against the defendant because those measures were used.
38. [38]
    Each of the child witnesses also gave evidence in court on 22 February 2022, about one year later.
39. [39]
    When each child witness gave evidence, they were in a room remote (separate) from the courtroom. Their evidence was given by audio visual link between the remote room and the courtroom. When some child witnesses gave evidence, there was a support person sitting in the room with them.
40. [40]
    Whilst the child witnesses gave evidence, all non-essential persons were excluded from the courtroom.
41. [41]
    The defendant was present in the courtroom but was positioned so that the child witness could not see the defendant on the screen, or at all.
42. [42]
    The child witnesses’ evidence was recorded as it was given and those recordings were played to me. While they were played, the courtroom was closed and all non-essential persons were excluded.
43. [43]
    All of those measures are the routine practices of the court for taking and showing evidence of children. 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. The evidence is not to be given any greater or lesser weight because these routine measures were used.

Transcripts and editing

44. [44]
    When I listened to the recordings, I was given transcripts for my assistance. The transcript is not evidence. It is someone else’s impression of what was said during the recording. The transcripts were used by me as an aid only. It is what I heard on the recordings that constitutes the evidence.
45. [45]
    Some of the recordings had been edited. I do not speculate about the parts that have been edited out. I do not draw any inference adverse to the defendant merely because the recordings have been edited.

Separate consideration of charges

46. [46]
    There are five separate charges. I will return separate verdicts for each charge. I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements.
47. [47]
    As the evidence in relation to the separate charges is different, my verdicts need not be the same.

Markuleski direction

48. [48]
    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 reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.
49. [49]
    My general assessment of the complainant as a witness will be relevant to all counts, but I must consider her evidence in respect of each count when considering that count. 
50. [50]
    However, if it were the case that I had a reasonable doubt about the commission of one of the charged offences, it does not mean that I necessarily must acquit in respect of the other offences. In that event, I would have to consider why I have a reasonable doubt about that part of her evidence and consider whether that causes me to have a reasonable doubt about the part of the complainant’s evidence relevant to any other count. 

Bauer direction

51. [51]
    The Crown relies on the evidence of each charged act as evidence that the defendant had a sexual interest in the complainant and was willing to give effect to that interest.
52. [52]
    If I am satisfied beyond reasonable doubt of a particular offence, that finding may make it more likely that the defendant committed the other offences charged in the indictment.
53. [53]
    It is not in dispute that the defendant engaged in sexual conduct with the complainant and sent her messages of a sexual nature. What is in dispute is consent and mistake of fact as to consent.
54. [54]
    It would be wrong for me to reason that, because the defendant committed one offence, he is generally a person of bad character, and for that reason, must have committed the other offences. I must always decide whether, having regard to the evidence relevant to a particular count, the offence charged has been established beyond reasonable doubt.

Motive to lie

55. [55]
    The Crown submitted that the complainant had no motive to lie.
56. [56]
    In cross-examination, the complainant was asked questions concerning motives for her to lie in her account concerning the conduct of the defendant, and defence counsel in his closing address suggested a number of possible motives for her to lie. They included that:

    1. The complainant was caught skipping class in circumstances where she had done this on earlier occasions and had been spoken to by staff about truanting, she panicked, and blamed the defendant to deflect attention from herself;
    2. The complainant was angry at the defendant because she believed that he had shared an intimate or sexual video which appeared to be her to other students;
    3. The complainant had been having sexual contact with a boy (the defendant) who was not her boyfriend. A number of her friends knew about this, one of them had threatened to tell her boyfriend. The defendant had threatened to send an explicit video to her boyfriend, and the complainant was concerned that her boyfriend would find out about her sexual activity with the defendant.
57. [57]
    If I reject the motives to lie put forward on behalf of the defence, that does not mean that the complainant is telling the truth. 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.
58. [58]
    If I am not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean that the complainant is truthful.
59. [59]
    It remains always necessary for the prosecution to satisfy me that the complainant is telling the truth; for it is the prosecution’s burden to satisfy me beyond reasonable doubt of the guilt of the defendant.

Preliminary complaint

60. [60]
    There is evidence of the complainant’s preliminary complaints, that is of her complaints about the charged conduct prior to her first formal statement to police. There is evidence from her three friends, KK, RB and EM, and three school staff, HB, RR and the Deputy Principal.
61. [61]
    Some of the evidence of preliminary complaint is admissible only in relation to one or some of the offences. I use that evidence only in relation to the particular count that it relates to.
62. [62]
    The preliminary complaint evidence may only be used as it relates to the complainant’s credibility. Consistency between the account of those witnesses of the complainant’s complaint and the complainant’s evidence about that count is something I may take into account as possibly enhancing the likelihood that her testimony is true.
63. [63]
    I cannot regard the things said in those out-of-court statements by the complainant as proof of what actually happened. What was said on the prior occasions may, depending on the view I take of it, either bolster her credit and reliability because of consistency or cause me to have doubts about her credit and reliability because of inconsistency. But it does not independently prove anything. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for my determination.
64. [64]
    Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for me to consider. But the mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.

Expert witness

65. [65]
    Dr MacCormick, a Senior Forensic Physician at the Clinical Forensic Medicine Unit, Queensland Health, gave evidence by telephone. She was called as an expert witness and so receiving her evidence from a place remote from the courtroom is the usual position mandated by legislation. It is a routine practice of the court and I must not draw any inference as to the defendant’s guilt from it. The probative value of the evidence is not increased or decreased because of it. The evidence is not to be given any greater or lesser weight because of it.
66. [66]
    Dr MacCormick did not examine the complainant. She based her opinion entirely upon the statement of a doctor at the hospital the complainant attended, who in turn based her statement on notes of the sexual assault nurse examiner. The doctor’s statement was to the effect that the complainant had no visible injuries to her genital area.  None of the primary documents upon which Dr MacCormick based her opinion were in evidence. Dr MacCormick expressed the opinion that in most cases of adult sexual assault, there are no signs of genital injury; and the absence of genital injuries does not indicate that an assault has not occurred.  With respect to the reference to “adult”, she clarified that most people aged 14 or older will have reached sexual maturity.
67. [67]
    She was not cross examined so her evidence is not disputed. I found her evidence of no, or very little, assistance in considering the real issues in this case. I note that no party placed any weight or significance on her evidence in submissions.

Right to silence/defendant not giving evidence

68. [68]
    The defendant has a right to silence. He elected to not testify before me or to call evidence on his behalf, as is his right. He is not bound to give or to call evidence. He is entitled to insist that the prosecution prove the case against him, if it can.  
69. [69]
    The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution.  It proves nothing at all, and I do not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and 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. 
70. [70]
    The prosecution case depends upon my acceptance that the evidence of the prosecution’s principal witness, the complainant, was true and accurate beyond reasonable doubt.  

Alternative verdicts

71. [71]
    Both the Crown and the defence counsel expressly submitted that if I found the defendant not guilty of the offence of rape, the alternative verdict of unlawful carnal knowledge should not be considered.  Neither required or requested the alternative verdict to be left for my consideration.
72. [72]
    Both counsel submitted that in circumstances where the allegations involved sexual conduct between a 15 year old defendant and a 14 year old complainant, if I acquitted of the offences of rape I should not consider the alternative offence of unlawful carnal knowledge.
73. [73]
    I accept that this is not a case where it is necessary to secure the fair trial of the defendant for the alternative verdict to be considered. I have taken into account the express position of both parties, the defendant’s interests, and the public interest in the administration of justice. I have not considered alternative verdicts.

Factual allegations

74. [74]
    In arriving at my conclusions, I must give careful attention to all of the evidence, not only that on which the parties have focused. While I should pay particular attention to the evidence touching on the matters in issue, I must also have regard to the evidence as a whole. If I consider that there is a proper view of the evidence which neither party advanced, I am entitled to act on that view of the evidence.
75. [75]
    I have considered all of the evidence in the trial, and all the submissions advanced by counsel in closing addresses. The fact that I do not mention some of the evidence or a submission does not mean I have not had regard to it. I have referred to only so much of the evidence and submissions as is sufficient to explain in a summary way my findings and verdicts.

Admissions and uncontentious facts

76. [76]
    The following facts were either admitted or not in dispute at the trial.
77. [77]
    At the dates of the alleged offences, the defendant was a 15 year old boy and the complainant was a 14 year old girl.
78. [78]
    They were both Indigenous young people from remote communities who were attending the same high school but staying at separate boarding facilities.
79. [79]
    The sexual conduct by the defendant the subject of the charges occurred on three separate occasions.
80. [80]
    In late November 2020, they and other students attended a camp at a remote location. On a date unknown between 19 November 2020 and 23 November 2020 at the camp, at night on a bus, the defendant penetrated the complainant’s mouth with his penis (count 1) and then penetrated her vagina with his penis (count 2). I will refer to this as the occasion at camp.
81. [81]
    After the summer school holidays, they returned to school. On 18 February 2021, in a toilet block at school, the defendant penetrated the complainant’s vagina with his finger or fingers (count 3) and then penetrated her vagina with his penis (count 5). I will refer to this as the first school occasion.
82. [82]
    Five days later, on 23 February 2021, in the same toilet block at school, the defendant penetrated the complainant’s vagina with his penis (count 7). I will refer to this as the second school occasion. This occurred after the morning bell had rung and students were required to go to form class.
83. [83]
    There was CCTV footage on 23 February 2021 recording movements outside the toilet block from one of two entrances (the rear entrance), in which the defendant, the complainant, and the complainant’s friend EM can be seen at various times.
84. [84]
    During the period of the alleged offences, or at least by the dates of the first and second occasions at school occurred, the complainant had a boyfriend. He attended the same boarding facility as the defendant.  The complainant was concerned that her boyfriend would become aware that she had had sexual contact with the defendant.
85. [85]
    Between the occasion at camp and the second occasion at school (23 February 2021), the defendant and complainant were in regular contact with each other via social media. They messaged each other using the Snapchat application. A feature of that application is that the messages automatically delete and are not saved.
86. [86]
    In those messages the defendant expressed sexual interest in the complainant and said that he wanted to fuck her, and asked her to meet him at the toilets at school.  On the night before each of the first and the second school occasions, the defendant sent messages to that effect to the complainant. On each of the first school occasion and the second school occasion, the complainant agreed to meet the defendant at the toilet block the following morning and did so.
87. [87]
    On the first school occasion the complainant went to the girls toilets and then went to boys’ toilets to have a look. She did not go into the boys’ toilet but returned to the girls’ toilet. She remained in a cubicle with the door closed but not locked, and watched Netflix on her phone, until the defendant came in a little bit later at about 8:45am. The bell had gone for form class. The complainant told police she did not have any underwear on, on that occasion (although her evidence in court one year later was that she did).
88. [88]
    On unknown dates in the period after the school camp and before the second school occasion, the complainant told each of her friends, KK, RB and EM, to the effect that she had had sex with the defendant. She did not tell them he had raped her or sexually assaulted her.
89. [89]
    On a number of occasions between the start of the 2021 school year and 23 February 2021, the complainant had ‘wagged’ or skipped class. 
90. [90]
    At the dates of the alleged offences:

1. KK was a 14 year old girl who was a friend of the complainant. She was also the younger sister of the defendant.
2. RB was a 14 year old girl who was a friend of the complainant.
3. EM was a 14 year old girl who was a friend of the complainant.

91. [91]
    After the second school occasion occurred, the complainant left the toilet block. At about 9:30am she was seen by HB, the school’s Indigenous support officer, and RR, the residential boarding supervisor. HB was aware that the complainant had been missing classes. HB asked the complainant why she was not in class and spoke to her about truanting.  The complainant said “I hate [name of defendant]”. In the conversation that followed, the complainant made certain disclosures to HB and RR. HB referred the matter to the Deputy Principal. The complainant met with the Deputy Principal, HB and RR and made certain disclosures. The matter was reported, and the police attended the school the same day.
92. [92]
    The complainant gave a recorded interview to police at school.
93. [93]
    She then attended hospital and underwent a medical examination for sexual assault. There was semen present in the complainant’s vaginal and labial swabs. DNA samples were collected from the defendant and the complainant. An analysis of that semen confirmed that the mixed DNA profile obtained was greater than 100 billion times more likely to have occurred if the defendant had contributed DNA along with the complainant, rather than if he had not. There are admissions by the defendant to sexual penetration of the complainant.

The parties’ cases

The prosecution case

94. [94]
    The Crown submits that I would accept the complainant’s evidence and would be satisfied beyond reasonable doubt that the complainant did not give consent, or that her consent was not freely and voluntarily given, on each occasion. It submitted that on the complainant’s evidence, she communicated her lack of consent by her words and conduct.
95. [95]
    For the occasion at camp, for count 1, the complainant said she pushed the defendant’s face away when he tried to kiss her, she refused to spit on his penis when asked, and at first she did not open her mouth when he tried to penetrate it.
96. [96]
    For count 2, the complainant said there were tears in her eyes, when the defendant asked her if she was okay and she replied “no, not really”, but he continued to penetrate her vagina with his penis.
97. [97]
    For the first school occasion, the complainant said that the defendant had messaged the complainant the previous night saying he was going to have sex with her and telling her to head to the toilets. He told her that he would send a video of a girl fingering herself to her boyfriend if she did not “go with him”. The Crown submits that I would find that during penetration, the complainant verbally and through her conduct expressed a lack of consent on a number of occasions.
98. [98]
    For the second school occasion, the complainant said that the defendant sent the complainant messages where he told her he wanted to have sexual interactions with her in the toilets. The complainant expressed that she did not want to do those things. He did not desist, so she went to the toilets the next day to meet him and tell him she was not going to do anything with him, and she took her friend, EM, with her. After the defendant followed the complainant into the toilet cubicle, she communicated a lack of consent to him through both words and conduct. He persisted until she eventually gave up because she thought she was not going to be able to get out of it.
99. [99]
    In order to return a verdict of guilty, I must accept the complainant’s account of what occurred in full (for the relevant elements).
100. [100]
     Both parties submitted that I must also consider whether, for each charge, the operation of section 24 of the Criminal Code has been negatived or excluded. The prosecution submits that it has been negatived or excluded.

The defence case

101. [101]
     The defence case is that each occasion was a case of consensual sexual activity between a 15 year old boy and a 14 year old girl.
102. [102]
     Defence counsel submits that I could not be satisfied beyond reasonable doubt that the complainant is a credible and reliable witness. He submits that there are numerous inconsistencies within her evidence and as between her evidence and that of other witnesses, that she had motives to make up the allegations, and that these factors individually and in combination would cause me to have a reasonable doubt about whether she did not consent.
103. [103]
     He also submits that if I find she did not consent, I could not be satisfied beyond reasonable doubt that the Crown has excluded or negatived mistake of fact.

Consideration

104. [104]
     In her interview with police and prerecorded evidence in court, the complainant presented as a very intelligent and articulate teenage girl who gave a detailed account of what occurred. She gave evidence in a composed, matter of fact, manner. She showed no sign of distress or discomfort at any time.
105. [105]
     At the start of her s 93A statement she told police “a senior boy took me into the toilets and did some inappropriate things”, and that when the defendant was messaging her the night before saying sexual things she told him “I don’t think that’s appropriate, um well first off it being in school and you’re older than me”, and “I don’t find it very respectful”. 
106. [106]
     The complainant’s language and description of the events changed somewhat between her recorded statement to police on 23 February 2021 and her pre-recorded evidence given in court about one year later.
107. [107]
     In her pre-recorded evidence in court she used a form of wording which was legalistic and suggestive of subsequent counselling or education with respect to consent. She repeated a number of times “I did not give consent”, whereas she did not use that expression or those words in her s 93A statement to police.  Where there are differences or inconsistencies in the complainant’s evidence as between her s 93A statement and her pre-recorded evidence given in court, I prefer the evidence in her s 93A statement to police because it is proximate to the last alleged offence, and less likely to be affected by the passage of time and exposure to the legal process or other influences.
108. [108]
     I find the other child witnesses KK, RB and EM each to be honest witnesses whose reliability is affected only by the passage of time. Each gave their evidence in a candid, spontaneous, unsophisticated, and age appropriate way. There were some inconsistencies between each of their accounts, but I thought these were of such a nature as to be expected.
109. [109]
     I similarly found each of RR, HB and the Deputy Principal to be genuinely honest witnesses. Again, the passage of time has created some deficits in their memory, which resulted in their accounts being somewhat inconsistent with each other, despite being present for some of the same conversations.
110. [110]
     I am satisfied that the complainant described acts of oral, digital, and penile penetration. I am satisfied from the admissions that the defendant penetrated the complainant as set out in the admissions.

Preliminary complaint

111. [111]
     While there were some consistencies, there were significant inconsistencies or differences between the complainant’s account of the offences and what she told others before making her statement to police.
112. [112]
     The complainant did not tell anyone that the defendant raped her or sexually assaulted her.
113. [113]
     RR said that the complainant told her that they couldn’t do it in the van she was sleeping in with the others, so the defendant took her to another van.
114. [114]
     EM said that the complainant told her that she had sex with the defendant and that it happened over the holidays. The complainant told EM something happened at the camp, and EM was pretty sure that the complainant had said “her and the defendant went together, or something”, and they slept in the same tent.  EM said that before the second occasion at school the complainant told her the defendant wanted to fuck her in the toilet, EM said to the complainant “don’t do it, and if you’re going to keep doing this, I’m going to tell [her boyfriend].”
115. [115]
     KK said that the complainant told her that she went on the bus and woke the defendant up and lay next to him, instead of going to her own tent, and that they had sex in the bus. KK said that the complainant was laughing about it when she told her.
116. [116]
     The complainant told RB that the defendant had “dragged” her into the toilet and wanted to “fuck her” then, but did not disclose what else happened.
117. [117]
     RR said that the complainant told her that they “did it”, which prompted HB to clarify whether she meant penetration and the complainant confirmed that.
118. [118]
     The complainant said that the defendant simply followed her into the toilet cubicle but she told the preliminary complaint witnesses, variously, that he grabbed, dragged, pushed or forced her in there.
119. [119]
     Here the inconsistencies or differences between the evidence of other witnesses including the preliminary complaint evidence and the complainant’s evidence cause me to have doubts about the complainant’s evidence with respect to the relevant offences to which that evidence relates.  Accepting that some inconsistency is to be expected, the inconsistencies in this case are not such as to be entirely explicable by the complainant’s and child witnesses’ ages or the passage of time. The inconsistencies in the preliminary complaint evidence are sufficient to cause me to doubt the veracity of some of the complainant’s evidence about the alleged conduct.
120. [120]
     Defence counsel also relied on other matters said to give rise to a reasonable doubt as to whether the complainant did not consent and whether the Crown has excluded mistake of fact. They were emphasised in his oral address, which I will not repeat in full, but they included the following.
121. [121]
     First, the nature of the relationship between the defendant and complaint, particularly the following matters:

     1. That after the occasion at camp the complainant did not make any complaint of rape but continued to communicate with the defendant, including about sexual matters;
     2. The communications between them, particularly the exchange of sexual messages on Snapchat, including the evidence from RB that she had been present when the complainant mutually engaged in sexually explicit communications with the defendant;
     3. The evidence of RB that the complainant talked about the defendant a lot, about how good looking he was and that he was cute;
     4. The discussion between the complainant and defendant before the first and second school occasions about the sexual activity that was to occur;
     5. That for the first and second occasions at school the complainant went to the toilet block knowing that the defendant intended to have sex with her;
     6. The complainant’s evidence that she did so because she was going to tell him “I’m not doing this anymore”, not “you’re not doing this anymore”.
     7. That the complainant arranged to meet the defendant at 8:45am at the toilet block when the form bell went, rather than before class commenced, from which it is submitted I could infer that she had no intention of going to class;
     8. That on the second school occasion, the complainant declined to go with her friend EM to form class despite EM asking her to do so, twice, including in the presence of the defendant, and despite EM even returning to the toilet block to get the complainant to come with her to class.
122. [122]
     Next, the complainant’s descriptions of the sexual encounters, in particular:

     1. The conflicting evidence from the complainant as to whether she said “no” during penetration or did not say anything at all;
     2. The complainant’s conduct during the penetration, including:
        1. Immediately before counts 1 and 2, the complainant went to the bus or van that the defendant was in, she was lying with the defendant in the front of the van, and they were hugging before he started touching her and trying to kiss her;
        2. For count 1, the complainant did not open her mouth at first but she just ended up opening it;
        3. For count 2, which occurred immediately after count 1 and as single course of conduct, the defendant penetrated her vagina for about 10 minutes, during which the complainant did not say anything. When the defendant asked if she was ok she said “no, not really” but he kept going. While he was penetrating her, the complainant had her hands on the defendant’s back in a hugging style motion, which the defendant submits I would find consistent with consensual sex;
        4. When it was finished, the complainant dressed and said she was leaving and the defendant said, “okay, I’ll see you later then” and she said “yep” and left. She sat by the fire and waited for others to wake up. She did not make a complaint to any person;
        5. On the first occasion at school, the complainant told the defendant “we can’t be doing this, I’m in a relationship”, not “you can’t be doing this”; that she was not wearing underwear; that while the defendant penetrated her with his finger while she was standing, the complainant did not say anything and her hands were around his neck; although later she said that she kept saying no; that the complainant let him do it for about five seconds before removing his hand;
        6. on the second occasion at school the complainant left her school bag in the same toilet cubicle in which the first school occasion had occurred, as if waiting for the defendant; that the complainant told the defendant “I’m not doing this anymore,” not “You’re not doing this anymore”; that after the sexual act occurred, the complainant (at the defendant’s request) went outside to check whether there were any teachers present before the defendant left the toilets.
     3. The complainant’s evidence in her pre-recorded evidence in court that she arranged to meet the defendant in the toilets “because he was not getting the message”, and “it was still not clear”, which suggests that the complainant thought the defendant may mistakenly believe she was consenting to the sexual conduct.
123. [123]
     Next, other evidence including:

     1. the contrary evidence of EM in relation to what occurred on 23 February 2021 and the CCTV footage depicting EM’s and the complainant’s movements immediately prior to the alleged offending;
     2. the complainant’s movements on 23 February 2021 which were designed to avoid teacher detection;
     3. the complainant’s explanation of the existence and use of a fake Snapchat account and an explicit video, which was said to be implausible;
     4. the complainant’s characterisation of the alleged offending to preliminary complaint witnesses as sex or “doing it”, and the absence of a complaint of rape or reference to lack of consent; and
     5. with respect to the occasion at camp, the inconsistencies between the complainant’s evidence about the sleeping arrangements at camp and that of the other witnesses who attended the camp; and inconsistencies in her accounts of how she came to be in the bus or van.
124. [124]
     Finally, the complainant’s motives to lie, including being confronted again for her frequent truanting, her admitted anger at the defendant because she believed he was responsible for the distribution of an explicit video, and fear her boyfriend would become aware of her infidelity.  Defence counsel particularly emphasised that in re-examination, the complainant was asked “did you make up these allegations because she was angry at the defendant [for the explicit video]?”. She answered “Yes”. Again in re-examination she was asked, “because you were told about the video, did that influence you to make these allegations?”.  She answered “Yes”.

Mistake of fact

125. [125]
     I accept that the evidence is sufficient to raise the possible application of section 24 of the Code for each count.
126. [126]
     Things said and done by the complainant prior to the commencement of the charged conduct to give rise to that belief, and the complainant’s failure to object could be seen as communicating a consent. To apply, the belief must be held at the time the offending commenced.
127. [127]
     In cases like this one, in which the defendant alleges that the complainant consented but did not give evidence, the element of the defendant’s belief can arise only by way of inference.  It is likely that the facts relied upon to show consent, being objective facts, will also be relied upon to raise an inference that the defendant held a reasonable but mistaken belief about that issue.
128. [128]
     Section 24 requires consideration of whether a defendant’s belief, based on the circumstances as he perceived them to be, was held on reasonable grounds (as opposed to whether a theoretical reasonable person would have held it). The information available to the defendant and his circumstances are relevant. For example, that he was a 15 year old boy communicating about sex with, and having sexual contact with, a 14 year old girl attending the same school.

Conclusion

129. [129]
     In conclusion, while any reasonable doubt must be based on the evidence and not be merely hypothetical or theoretical, and while also acknowledging there is room for disagreement on whether a reasonable doubt has been raised, in my view a reasonable doubt is raised on the combination of features of the evidence.
130. [130]
     I am very conscious that the standard of proof, beyond reasonable doubt, is a high standard. I am left with some uncertainty in light of all of the evidence, particularly those matters referred to.
131. [131]
     My reservations about the complainant’s evidence should not be taken to be a criticism of the complainant, or the quality of her testimony.
132. [132]
     The evidence when considered as a whole is such that it leaves me with a reasonable doubt. I am not satisfied beyond reasonable doubt that the complainant did not give consent to each act of penetration.
133. [133]
     I also am not satisfied that the Crown has disproved beyond reasonable doubt the defence of honest and reasonable mistake of fact. 
134. [134]
     I am not satisfied beyond reasonable doubt of the guilt of the defendant on each charge.
135. [135]
     It follows that I must find the defendant not guilty of each of counts 1, 2, 3, 5 and 7.