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R v PS[2022] QCHC 5

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v PS [2022] QChC 5

PARTIES:

THE QUEEN

 

V

 

PS

(defendant)

FILE NO/S:

26/21

DIVISION:

Crime

PROCEEDING:

Trial

DELIVERED ON:

19 April 2022

DELIVERED AT:

Maroochydore

HEARING DATES:

8 March 2022, 9 March 2022, 10 March 2022

JUDGE:

Cash QC DCJ

VERDICTS:

Count 1: Not Guilty

Count 2: Not Guilty

Count 3: Not guilty

Count 4: Not guilty

Count 5: Not guilty

Count 6: Not guilty

LEGISLATION:

Childrens Court Act 1992 (Qld), s 23

Criminal Code 1899 (Qld), s 210, s 349, s 615B, s 615C

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

Evidence Act 1977 (Qld), s 21AVs, 21AU, s 21AW

Youth Justice Act 1992 (Qld), s 98(2)(a), s 102

CASES:

Bromley v The Queen (1986) 161 CLR 315

R v DAH (2004) 150 A Crim R 14; [2004] QCA 419

R v FAX [2020] QCA 139

Robinson v The Queen (1999) 197 CLR 162, [25] to [26]

Woolmington v The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462

COUNSEL:

R J Marks for the prosecution
A E Cappellano for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution
Aitken Whyte Lawyers for the defendant

Introduction

  1. [1]
    The defendant, whom I will refer to as PS, was charged on indictment with six alleged offences. Three of the charges were allegations of rape and three were allegations of indecent treatment of a child under the age of 12. The alleged victim in each charge was a young girl, MPM. The defendant is MPM’s uncle. He was about 13½ years old at the time of the alleged offences. PS elected to be tried by a judge sitting without a jury.[1] Over three days I heard evidence and submissions. Having considered the evidence and the relevant law, I am not satisfied beyond reasonable doubt that the defendant is guilty of any of the alleged offences. What follows are my reasons for reaching this conclusion. It is convenient to commence with a summary of the evidence in the trial.

The evidence

  1. [2]
    The prosecution called the complainant and five other witnesses. The defendant did not give evidence, call witnesses, or adduce evidence. Before I turn to a summary of their evidence it may help to set out the relationships between various witnesses. Because it is appropriate to make these reasons publicly available while also preserving the anonymity of both the defendant and the complainant, I have substituted letters for the names of most witnesses. The result is these reasons are more difficult to read, but I hope the following summary of relationships assists.
  1. [3]
    The complainant’s mother is the defendant’s older sister. The mother of the defendant and his sister is Mrs PD, who is therefore also the grandmother of the complainant MPM. Mrs PD is married to Mr PP, who is also the father of the defendant and his sister, and grandfather to MPM. The complainant’s father is DRM. At the time of the alleged offences, he was no longer in a relationship with MPM’s mother. DRM was at the time of the alleged offences in a new relationship with Ms MM. The complainant’s mother also had an older child from an earlier relationship, OKP. He is about the same age as the defendant PS, who is his uncle. OKP is the older brother of the complainant (though they have different fathers). It is relevant to note that the complainant MPM has also made allegations of sexual abuse against OKP.[2]

MPM (the complainant)

  1. [4]
    The bulk of MPM’s evidence-in-chief consisted of a recorded interview with a police officer on 18 November 2019. What seems to me to be the salient parts are summarised below. It is helpful to make some comment and observations as I set out the evidence.
  1. [5]
    When asked by police what she attended to talk about, MPM told them it was about her brother abusing her. Further questioning made it apparent MPM was referring to her brother OKP. After discussing her family circumstances MPM spent about the first 50 minutes of the conversation detailing alleged offending by OKP. There was no mention of the present defendant during this part of the conversation with police.
  1. [6]
    The first mention of the defendant was when police asked MPM about when OKP committed an alleged offence. MPM identified that it had happened the day before the police interview. A police officer asked, “when did it happen before?”[3] MPM said “when I was at my uncles … That was like, oh, three weeks ago.” She described that “he” made her go into the spare room and “shoved it up [her] bum” and “made [her] suck it”.[4] The police officer asked MPM who her uncle was and she replied by stating the defendant’s first name.
  1. [7]
    Up to this point it might be thought that MPM had only alleged offending by OKP. That is, she was describing something done by OKP at her grandmother’s home three weeks before. But a few minutes later the police officer asked, “Are you talking about [OKP] or [PS]?”[5] MPM again replied by stating the defendant’s first name. The police officer’s response was to say “[PS], okay. So, [PS] did it to you.” The questioning then turned to the present defendant. MPM said the defendant had not done anything to her before this incident. She went on to describe the events that constitute counts one to four.
  1. [8]
    MPM alleged that PS made her go into his bedroom so they could play Fortnite on his PlayStation. They did this for a time before watching some YouTube. MPM said, “Then he pulled my pants down and then put it up the, did it.”[6] As the questioning continued it became apparent that MPM was saying she had fallen asleep on PS’s bed and woke to find someone touching her bottom.[7] She asked PS what he had done and PS replied, “I waited till you were asleep so then I closed my door, grabbed my dingle out then just shoved it up your bum.”[8] (This is said to constitute Count 1.) Her description of the alleged events continued. MPM said that he made her wrap a blanket around her and pull down her pants. PS licked her genitals (Count 2) and put his penis into her mouth (Count 3). MPM felt uncomfortable so she ran to the bathroom with the blanket. There was some confusion about when this occurred. At one point MPM said it was before PS put his penis in her bum.[9] She went on to say that after PS licked her genitals but before MPM went to the bathroom, PS put his penis in her bum a second time (Count 4). This was when MPM was awake and lying on the bed on her stomach. She said it really hurt and that she was “frozen” and did not know what to do.[10] MPM said her bottom hurt for a day but she did not tell anyone about it.[11]
  1. [9]
    MPM’s description was graphic and compelling.[12] It included a description of PS’s penis as being “squishy but hard”.[13] Usually such descriptions might be thought to be beyond the understanding of a nine-year-old child unless they actually experienced the events described. But in this case MPM made allegations about OKP in similar terms and using similar descriptions.[14] This means that one possibility is that MPM’s knowledge of these matters derived from what OKP did to her. In turn this reduces the significance of her descriptions of PS’s penis and his alleged offending. It is different to a case where the esoteric knowledge of a complainant can only be explained if their allegations are true.
  1. [10]
    The police officer asked questions about any other time PS had done something to her. MPM recounted events that she said occurred “this week when I went to their place”.[15] She said it was on Friday after school and involved PS telling her to pull her pants down. The events described by MPM were as follows. She was at the house with Mrs PD, Mr PP, the defendant, and her younger sister. Mrs PD and MPM’s younger sister left to go to McDonalds. The sequence of events is not entirely clear but involved MPM and Mr PP going to buy ice-cream at some point. As well, MPM spoke of putting bottles in the ute (likely a reference to moving bottles for recycling as discussed by Mr PP below). This may have been before or after the alleged offences.[16] In any event, MPM said PS persuaded her to play hide and seek in his bedroom.[17] When they were in the bedroom together the defendant licked MPM’s genitals (Count 5) then pushed her down and made MPM lick his penis (Count 6).
  1. [11]
    MPM said she ran away from school to her father’s house where she eventually spoke to her father and Ms MM about the allegations.
  1. [12]
    In cross-examination MPM rejected the suggestion that the alleged offences did not occur. Specifically, she denied being confused about whether the offender was PS or OKP.

DRM (the complainant’s father)

  1. [13]
    MPM’s father, DRM, testified that she had been born in March 2010. He was no longer with MPM’s mother and had been with a new partner, MM, since 2017. DRM said that on 18 November 2019, a Monday, he and MM returned home from a weekend in Brisbane. He learned that MPM had run away from school. MM found MPM near the house. When DRM spoke to MPM she was upset and said the boys had been sexually abusing her. DRM asked which boys and MPM said it was the defendant PS and her brother OKP. MPM went on to say that “both of the boys had made her – well, made, like, put their penis in her – in her mouth and made her do things like that.”[18] They took MPM to the police station.

Ms MM (the complainant’s father’s partner)

  1. [14]
    MM was with DRM when they returned from Brisbane. She found MPM who said she had run away from her Mum’s house because OKP had hurt her. As they continued to talk MPM told MM that the defendant PS was making her suck his penis as well.
  1. [15]
    In her evidence-in-chief, MM also said that MPM alleged she woke to feel PS had his penis in her bottom. MM said that MPM told her sexual abuse had been happening for months and occurred at PS’s home when his grandmother was away.[19] In cross-examination MM was referred to her written statement to the police, completed on 20 November 2019. MM confirmed that in her written statement she made no mention of these matters.[20]

PD (the grandmother of the complainant and mother of the defendant)

  1. [16]
    Mrs PD is the mother of the defendant, who is her youngest son, and the grandmother of MPM. She confirmed the defendant was born in May 2006, making him 13½ at the time of the alleged offences. As noted above, Mrs PD is also the grandmother of OKP. She testified that at the time of the alleged offences she lived with her husband, Mr PP, the defendant, and an elder son. The elder son was an adult and not present for any relevant events. Mr PP worked as a truck driver and was often away interstate.
  1. [17]
    Mrs PD recalled that the complainant MPM had not stayed at her house for about 12 months when she rang to ask if she could visit. This resulted in MPM visiting and staying over on 1 November 2019, a Friday night. Mr PP was away working. The defendant was home. MPM’s mother dropped her off at Mrs PD’s house. MPM was wearing new overalls that had been purchased with money gifted to her by Mrs PD. Mrs PD, MPM and the defendant sat at the kitchen table and played games of Pass the Pig. As the evening progressed Mrs PD prepared dinner in the kitchen while MPM and the defendant stayed at the table. They ate dinner, cleaned up and later Mrs PD and MPM went into the loungeroom where they watched television. MPM went to bed at the same time as Mrs PD, sleeping with her in Mrs PD’s bed.[21] The next morning, they got up together, Mrs PD braided MPM’s hair and later her mother came to pick her up.[22]
  1. [18]
    In cross-examination Mrs PD said she did not recall MPM being out of her sight at all during the visit. She said she was paying particular attention to MPM as it was the first time MPM had visited Mrs PD in about 12 months. I set out below a passage from Mrs PD’s cross-examination that is of significance.[23]

[T]his is the occasion, isn’t it, when [MPM] has specifically said, “I want to come over to your house”?---Yes, yes.

And you had made an effort to spend that one-on-one time with her?---Definitely, yeah.

And was there any period of time during this day where [MPM] was really out of your eye or earshot?---Not that I’m aware of, no.

Was there any period of time when [MPM] was in [PS’s] bedroom?---No, not that I’m aware of, yeah, and I would have known if he – if she had have been.

And I guess, more specifically, was there any period of time when [MPM] and [PS] were in the bedroom together?---Definitely not.

Would – and did you ever see [MPM] leaving [PS’s] bedroom or the bedroom area or the hallway going into the bathroom?---No, not that I recall at all, no.

And just to be very clear --- ?---Yes.

--- there was no period of time where you saw her in that vicinity with blanket wrapped around her?---No, not at all.

Did you see her have a blanket wrapped around her at any stage of the visit?---No.

Did [MPM] appear to be upset at any stage?---No.

Did she say anything about having hurt herself in any way?---No.

Did she say anything – did she have – appear to have any injury during her stay aside from what she said to you?---No.

Did you notice, in particular, I guess, to be clear, anything in relation to her bottom being sore?---No, not at all.

Did [MPM] appear to avoid [PS] at any stage during that visit?---No.

And did you notice anything at all unusual in the behaviour of either [MPM] or [PS] during that visit?---No.

  1. [19]
    Mrs PD recounted a second occasion two weeks later when MPM visited again. This was also a Friday night. MPM’s mother dropped her off along with MPM’s younger sister at about 3.30 pm. The people present at the house that night were Mrs PD, Mr PP, the defendant, MPM and MPM’s younger sister. They played games at the kitchen table for a time before Mrs PD asked MPM if she wanted to go to McDonalds. MPM declined, saying she wanted to go to the store with Mr PP for ice-cream. Mrs PD left with MPM’s younger sister to go to Aldi and then McDonalds. She was away for 45 to 50 minutes, returning at about 5.00 pm. When she returned Mr PP was present with the defendant and MPM. Mr PP and MPM were in the lounge room and the defendant was in the kitchen. They ate dinner and Mrs PD noticed nothing unusual during that night.[24] MPM and her sister slept with Mrs PD. Mr PP slept in the spare bed and the defendant in his own bedroom.[25] In cross-examination Mrs PD said that apart from her trip to McDonalds, she was with MPM the whole afternoon and evening.[26]
  1. [20]
    Mrs PD also said that the household had a rule that the children were not to be in the bedrooms other than for sleeping. Specifically, girls were not allowed in the boys’ bedrooms.[27] In relation to the position of the defendant’s gaming console, Mrs PD said that at the time of the alleged offences it was not in his bedroom and was kept outside near the kitchen area.[28]
  1. [21]
    There was also evidence from Mrs PD directed toward proving the defendant had the capacity to know he ought not do the alleged acts. As I will discuss later in these reasons, this was a matter to be proved by the prosecution before the guilt of the defendant could be established. Because I have a reasonable doubt about the reliability of MPM’s account of the alleged offences, such that I am not satisfied the defendant did the acts as alleged, it is unnecessary to set out this evidence.

Mr PP (the grandfather of the complainant and father of the defendant)

  1. [22]
    Mr PP was not at the house during MPM’s first visit when counts one to four were alleged to have occurred. On Friday 15 November 2019 he arrived home from work and later MPM and her younger sister were dropped off at the house. The children went into the kitchen where they played card games with Mrs PD and the defendant. Mr PP was outside cleaning the barbecue. When Mrs PD went to Aldi and McDonalds, Mr PP stayed for about five minutes with MPM and the defendant before walking to a nearby store with MPM and purchased ice-cream. The round-trip took about 35 minutes. The defendant stayed at home. When Mr PP and MPM arrived home, he directed the defendant to move some bottles outside to a ute so they could be recycled. MPM helped the defendant. Mr PP stayed in the loungeroom but could watch the children as they moved the bottles.[29] Mrs PD and MPM’s younger sister were away for 40 to 45 minutes, arriving home not long after Mr PP and MLM returned with ice-cream. They prepared and ate dinner, after which the children and Mrs PD continued playing card games at the kitchen table. Mr PP went to bed and the next morning left with the defendant at about 7.30 to 8.00 am to take the bottles to the recycling centre.
  1. [23]
    In cross-examination the following exchange occurred.[30]

And how long had it – how long had it been from when the ute was loaded to when [Mrs PD] got home?---A matter of minutes.  Five minutes maximum.

And do you recall where [MPM] was when [Mrs PD] got home?--- [MPM]was sitting beside me on the couch when [Mrs PD] got home.

And where was [PS]?  Do you recall?---On the back couch – lounge on his laptop computer.

Is that that back lounge?  Is that what --- ?---Yes.

--- you’re talking about?---Yeah.

Now, while [PS] and [MPM] were at home alone with you, did you hear any mention of a hide and seek game?---No.  Not at all.

Were the kids ever alone at the outside gate other than when they were loading the bottles?---No.  They weren’t.

And you could hear them when they were loading the bottles?---At all times. 

Was there any time that there was a delay at the front of the house there?---No.  Not at all.

Were the kids ever alone in [PS’s] bedroom when they were home alone with you?---No.  They weren’t.

  1. [24]
    Mr PP also gave some evidence concerning the defendant’s secular and religious education. It is unnecessary to refer to this evidence.

Plain Clothes Senior Constable Amanda Grant

  1. [25]
    Senior Constable Grant investigated the matter and interviewed MPM in November 2019. She also obtained some records from the school attended by the defendant. These records were tendered but for the reasons which follow, do not assume importance.
  1. [26]
    With this summary of the evidence in mind, I turn to the legal principles that applied to the trial.

Judge alone trials in the CCQ

  1. [27]
    PS is a child.[31] As such the provisions of the Youth Justice Act 1992 (Qld) (“YJA”) and Childrens Court Act 1992 (Qld) for dealing with children charged with indictable offences applied to this proceeding. When PS appeared before a Childrens Court Magistrate and was committed for trial to the Childrens Court of Queensland (“CCQ”) he elected, pursuant to section 98(2)(a) of the YJA, to be tried by a Childrens Court judge sitting without a jury. Because PS did not withdraw his election to be tried by a judge, section 102 of the YJA required that I try the defendant without a jury.[32] Neither the YJA nor the Childrens Court Act contain provisions that mirror those of the Criminal Code dealing with trial by judge alone.[33] The provisions of the Code are expressly stated to be inapplicable to a trial on indictment before a Childrens Court judge.[34] But section 23 of the Childrens Court Act 1992 (Qld) provides that “Issues of law and fact are to be decided by the judge or jury as if the trial were a trial on indictment in the Supreme Court”. In R v FAX [2020] QCA 139 this section seems to have been regarded as incorporating the common law requirement that any judicial decision must be explained by reasons, including the identification of the legal principles and findings of fact that informed the decision. As such it is appropriate to set out the legal principles applicable to this trial before continuing to a consideration of the evidence.

Relevant legal principles

  1. [28]
    To begin with, it is a fundamental principle of our law that a defendant in a criminal trial is presumed to be innocent.[35] The onus is on the prosecution to prove the guilt of the defendant, if it can, beyond reasonable doubt. To do so, the prosecution must prove every element of an alleged offence. The defendant had no obligation to prove any matter in the trial, least of all his innocence.
  1. [29]
    The defendant faced six separate charges. It was necessary to consider each charge separately and it was, in theory, open to reach different verdicts. But in this trial, there was nothing in the evidence to distinguish between the charges. A reasonable doubt about the truthfulness or reliability of the complainant’s evidence in relation to one allegation would inevitably produce a reasonable doubt about the remaining charges.
  1. [30]
    The evidence of the witnesses might be accepted in whole or in part. In this case the only evidence of the commission of the alleged offences came from MPM. It follows that I could not be satisfied the prosecution have proven the necessary elements of the alleged offences unless I was satisfied, beyond reasonable doubt, that her description of the acts constituting the offences was truthful and reliable.
  1. [31]
    The defendant did not give evidence. I drew no adverse inference from this, and I note that the onus of proof always remained with the prosecution. The fact the defendant did not give evidence did not strengthen the prosecution case or supply additional proof against him or fill any gap in the evidence.[36]
  1. [32]
    MPM was an “affected child” in terms of the Evidence Act 1977(Qld), Part 2, Division 4A. This had the result that her evidence was video recorded before the defendant was arraigned. This took place with MPM in a different room to the court room where the defendant was located. A support person was allowed in the room with MPM when she gave evidence.[37] The recording that was made was played as MPM’s evidence in the trial before me. When MPM gave evidence, and when the video recording was played in court, the court was closed other than to “essential person[s]”.[38] These are all routine measures and I draw no inference as to the defendant’s guilt from them, nor do I consider MPM’s evidence to have more (or less) probative value, or to be given greater or lesser weight, because of the measures.[39]
  1. [33]
    I had the benefit of a transcript of MPM’s conversation with police and her evidence in court. They were helpful in understanding her evidence, but I was conscious that the transcripts were not evidence. The evidence was what I saw and heard when the recordings were played. I have watched these recordings again after reserving my decision, but I was mindful that I had to decide the case based upon all of the evidence, and not just the complainant’s evidence.
  1. [34]
    As is apparent from the above summary, some of the evidence was of “preliminary complaint”.[40] I kept in mind that this evidence could not directly prove the alleged offences and was relevant only to the assessment of the complainant’s credit.
  1. [35]
    The application of one legal principle was in dispute. The defendant argued that I should caution myself to scrutinise the evidence of MPM with great care “and only act on [her] evidence if, after considering it with that warning in mind, and all the other evidence, [I was] convinced of its truth and accuracy”. Such a direction is said to derive from the decision of the High Court of Australia in Robinson v R (1999) 197 CLR 162. In an appropriate case, the direction is aimed at avoiding “a perceptible risk of miscarriage of justice arising from the circumstances of the case”.[41] The circumstances that might warrant the direction may be varied. Commonly, they include (as in Robinson) matters such as the young age of the complainant at the time of the alleged offending, a long delay before the complaint was made, an apparently harmonious relationship between the complaint and defendant after the alleged offending or the apprehended suggestibility of the complainant.[42] Features of this kind may create “a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt”.[43]
  1. [36]
    Here the defendant argued that the age of the complainant at the time of the alleged offending (nine years old) and the circumstances in which the complaint against this defendant arose, warranted the caution in this case. The latter concerned the evidence that when MPM spoke to police she initially spoke only of conduct by her brother, OKP. It was only well into MPM’s conversation with police that she also alleged this defendant had sexually abused her. This was said to be unusual and in combination with MPM’s young age required particular caution to be exercised before her evidence could be accepted.
  1. [37]
    I have concluded that the circumstances of this case do not require that I caution myself in the terms identified above. While the circumstances of MPM’s disclosure to the police of this defendant’s alleged offending was unusual, there is nothing about it that inherently creates doubt or uncertainty about the reliability of her account. A young person cannot be expected to recall events with the logic and precision of an adult. Not mentioning PS until well into the conversation is not remarkable. There was also evidence from her father (DRM) and her father’s partner (MM) that before the police interview the complainant told them that PS had put his penis in her mouth. That is, there was evidence that MPM had raised an allegation of sexual abuse by PS before the interview with police. The circumstances in which the complaint against PS emerged do not constitute some separate or additional factor, beyond MPM’s age at the time, requiring particular caution. That MPM was nine years old at the time she made the complaint is not itself a matter to which special attention need be drawn or which warrants a direction of the kind discussed above.
  1. [38]
    Having said that, I would emphasise that I have at all times been conscious that the burden of proving the defendant’s guilt rests with the prosecution and the requirement is for proof beyond reasonable doubt. That is a high standard. In a trial such as this where the only direct proof of the alleged offending comes from the complainant, it will always be necessary to scrutinise that evidence carefully to decide whether that evidence, taken with all the evidence in the case, establishes the guilt of the defendant. The difference between this and the caution discussed above may be more apparent than real.

Requirements for proof of the offences

  1. [39]
    For count 1 and count 4 it was necessary for the prosecution to prove the defendant penetrated MPM’s anus to any extent with his penis. For count 3 it was necessary to prove the defendant penetrated her mouth with his penis. Given the age of MPM she was not capable of consenting to such acts. If the acts occurred, they would constitute rape. This was the real dispute in the trial.
  1. [40]
    The prosecution argued that a potential alternative verdict arose in relation to count 1. Because of the complainant’s description of having been asleep and being told by the defendant what he had allegedly done, it was said there might be a doubt about the element of penetration. In such circumstances, even if I otherwise accepted the evidence of MPM as being truthful and accurate, the defendant could not be guilty of rape. Indecent treatment of a child contrary to section 210 of the Criminal Code is a statutory alternative to a charge of rape. But it was unnecessary to consider this alternative verdict because, as I will explain, I was not satisfied the events occurred as described by MPM.
  1. [41]
    For each alleged offence of indecent treatment of a child under 12, it was necessary for the prosecution to prove that the defendant dealt with MPM, that it was indecent, that it was unlawful and that she was under the age of 12. Again, the real dispute in the trial was whether the prosecution had proven the alleged acts occurred. If they did occur there would be no doubt the circumstances constituted offences of indecent treatment of a child.
  1. [42]
    Because the defendant was under the age of 14 at the time of each of the alleged offences, it was necessary for the prosecution to rebut the presumption that he was not criminally responsible “unless it is proved that at the time of doing the act or making the omission [he] had capacity to know that [he] ought not to do the act”.[44] Evidence was admitted addressing this requirement. On that evidence I have no doubt that PS was capable of knowing he should not do the alleged acts. But as I was not satisfied the prosecution proved the acts occurred, it is unnecessary to further consider this issue.

Consideration

  1. [43]
    The prosecution rightly acknowledged that before I could find the defendant did the acts alleged it would be necessary to be satisfied, beyond reasonable doubt, that MPM’s evidence about the events was both truthful and accurate. In turn this meant I would have to accept that during MPM’s first visit on 1 November 2019 she was in PS’s bedroom for long enough to play Fortnite, watch YouTube, fall asleep, and have the defendant penetrate her anus with his penis. Then, once MPM woke she and PS had to remain in the room long enough for the acts alleged in counts two, three and four to occur. It was also part of MPM’s evidence that she ran from the bedroom to the bathroom wrapped in a blanket. If events of this kind occurred, they must have taken some time. In relation to counts five and six, the time necessary for them to occur may have been shorter, but it would still have been substantial. This raises an immediate difficulty when regard is had to the evidence of Mrs PD and Mr PP.
  1. [44]
    The evidence of Mrs PD concerning MPM’s first visit was that MPM was not out of sight or in PS’s bedroom at all that afternoon or evening. On Mrs PD’s evidence, there would simply not have been the opportunity for PS to do the things described by MPM. Nor did she see MPM covered with a blanket.[45] There is no sensible way to reconcile the evidence of Mrs PD and that of MPM. They cannot both be correct about what happened that day. It follows that I could only accept the evidence of MPM was truthful and accurate if I rejected Mrs PD’s evidence. Before I could reject Mrs PD’s evidence, I would have to identify some reason why it is lacking in credibility. In my view there is no such reason. Her account was not inherently implausible. MPM was at the house over the course of an afternoon and evening and had not visited Mrs PD for some 12 months. The timeframe was relatively short and as Mrs PD explained she had reason to be particularly attentive of MPM. I do not consider it inherently unbelievable that Mrs PD was able to observe MPM for the entire afternoon and evening. The prosecution did not suggest that Mrs PD was dishonest or unreliable. Indeed, the prosecutor frankly submitted that I should accept the evidence of Mrs PD (and Mr PP).[46] The best submission the prosecution could advance was that it was possible there was some time in the afternoon or evening when Mrs PD did not have MPM under observation. That may be the case, but if there was it could not have been long enough for the events described by MPM to occur.
  1. [45]
    I should record that I thought MPM was an impressive witness. Her account was essentially one that was believable. It contained details of a kind that would be hard to invent or confuse. There were some issues about the sequence of events, but nothing that could not be explained by her young age. If hers were the only evidence I would be inclined to accept it. But it was not. I am left in the position that the evidence of Mrs PD creates a reasonable doubt about the accuracy of MPM’s evidence concerning the events of the first visit. It follows that I cannot be satisfied of the guilt of the defendant in relation to counts one to four.
  1. [46]
    For the same reasons I cannot be satisfied of the guilt of the defendant in relation to counts five and six. While these events might have occurred in a much shorter time than the first four counts, the evidence of Mrs PD and Mr PP, if not rejected, would still mean it was practically impossible for them to occur as described by MPM. She was with Mrs PD or Mr PP at all times during the second visit. She went with Mr PP to buy ice-cream and when they returned, he directed MPM and PS as they loaded bottles in the ute. There were only minutes before Mrs PD also returned and they all had dinner. There simply would not have been the opportunity for the defendant to play hide-and-seek in his bedroom and commit the offences alleged in counts five and six.
  1. [47]
    The evidence of Mrs PD and Mr PP created a reasonable doubt in my mind. In the circumstances, it is not necessary to consider other arguments raised by the defendant suggesting that MPM’s account was inconsistent with the evidence of preliminary complaint and that it was “internally inconsistent”.
  1. [48]
    My verdicts are that the defendant is not guilty of each of the six counts. The defendant is discharged.

Footnotes

[1]Youth Justice Act 1992 (Qld), s 102.

[2]These allegations have not yet been tried. On 1 October 2021 leave was given, pursuant to section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) permitting evidence and questions about these allegations in PS’s trial.

[3]MFI “D”, p. 38.30-60 (about 49 minutes into the recording).

[4]MFI “D”, p. 39.1-2.

[5]MFI “D”, p. 41.10 (about 50 minutes into the recording).

[6]MFI “D”, p. 42.26-27.

[7]MFI “D”, p. 44.40-60.

[8]MFI “D”, p. 44.38-40.

[9]MFI “D”, p. 46.30-33.

[10]MFI “D”, p. 47.20-60 (about 60 minutes into the recording).

[11]MFI “D”, p. 50.10.15.

[12]MFI “D”, p. 48.9-22.

[13]MFI “D”, p. 49.15 (about 61 minutes and 20 seconds into the recording).

[14]MFI “D”, p. 20.1-20.

[15]MFI “D”, p. 53.1-2.

[16]MFI “D”, p. 59.30, contrast p. 60.60 – p. 61.2.

[17]MFI “D”, p. 58.32-48.

[18]T.2-9.8-20.

[19]T.2-15.18-30.

[20]T.2-18.1-20.

[21]T.2-29.5-44.

[22]T.2-30.35-40.

[23]T.2-77.1-40.

[24]T.2-32-T.2-33.

[25]T.2-34.18-20.

[26]T.2-78.22-23.

[27]T.2-35.1-9.

[28]T.2-67.35-37.

[29]T.3-16.15-16.

[30]T.3-16.21-47.

[31]Acts Interpretations Act 1954 (Qld), section 36 and Schedule 1.

[32]There being no suggestion by either the prosecution or the defendant that it would be “more appropriate for the child to be tried by [a] judge sitting with a jury – section 105(c) of the YJA.

[33]Found in Chapter 62, Chapter Division 9A of the Criminal Code.

[34]Criminal Code, section 615D. This express exclusion may be taken to be effective despite sections 66 and 101 of the YJA.

[35]Woolmington v The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462.

[36]R v DAH (2004) 150 A Crim R 14; [2004] QCA 419.

[37]Evidence Act 1977 (Qld), section 21AV.

[38]Evidence Act 1977 (Qld), section 21AU.

[39]Evidence Act 1977 (Qld), section 21AW.

[40]Criminal Law (Sexual Offences) Act 1978 (Qld), section 4A.

[41]Bromley v The Queen (1986) 161 CLR 315 at 319, 323-325.

[42]Robinson v The Queen (1999) 197 CLR 162, [25].

[43]Robinson v The Queen (1999) 197 CLR 162, [26].

[44]Criminal Code, section 29.

[45]There was an allied issue concerning the position of the PlayStation which at the time of these events was said to be in the kitchen area and not in PS’s bedroom.

[46]T.3-60.35; T.3-61.25.

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Editorial Notes

  • Published Case Name:

    R v PS

  • Shortened Case Name:

    R v PS

  • MNC:

    [2022] QCHC 5

  • Court:

    QChC

  • Judge(s):

    Cash QC DCJ

  • Date:

    19 Apr 2022

Appeal Status

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