R v INS[2024] QCHC 10

CHILDRENS COURT OF QUEENSLAND

Summary

1. [1]
   The 18-year-old defendant is charged with, and pleaded not guilty, to committing offences as a 17-year-old child against his 16-year-old cousin of:

• Count 1: Sexual assault
• Count 2: Rape
• Count 3: Rape

2. [2]
   The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury,^[1] and I have considered all the evidence and directed myself according to law separately to each count.
3. [3]
   I found the complainant to be a truthful and reliable witness who provided clear evidence consistent with her demeanour and preliminary complaints after the incident.  I otherwise reject the defendant’s untruthful account given in the police interview and the evidence of his parents.  MC was too alcohol affected, vague, and sleepy to be alerted to the defendant’s offending conduct. CC was unreliable and did not provide a true account because she was alcohol affected and too sick to accurately gauge time, had limited observations of the defendant and complainant at the time of the alleged offending, and had a general stupor.
4. [4]
   In a twin-share hotel room, where the defendant and complainant slept on one bed with the defendant’s parents on the other bed, the complainant woke up around 7:00 am on 1 January 2023.  She found her pants down, her bra pulled up, and her underwear moved to expose her bottom and vaginal area.  The defendant’s fingers penetrated her vagina; he removed and licked his fingers before reinserting them. The defendant touched her breasts and squeezed her left breast while ‘humping’ her by pushing or rubbing his penis against her back and side.  The complainant tried to stop him by pulling up her pants and saying “no” quietly due to the presence of his parents. The defendant continued to ‘hump’ her and masturbate but stopped when she resisted and moved away. He then went to the bathroom. During this time, the complainant checked the time on his phone, which read between 7:00 and 7:05 am. Upon his return, she told him not to say anything about the incident and that it never happened.  They moved to the veranda, where she asked to use his phone to call her mother.  When her mother couldn't pick her up, the defendant offered to book an Uber.  He apologised multiple times, acknowledging that she did not consent.
5. [5]
   Therefore, my verdicts are:

   1. For count 1, Sexual assault, I find the defendant Guilty.
   2. For count 2, Rape, I find the defendant Guilty.
   3. For Count 3, Rape, I find the defendant Guilty.

General

6. [6]
   The burden rests on the prosecution to prove the guilt of the defendant.  Of course, there is no burden on a defendant to establish any fact, let alone his innocence.  The defendant is presumed to be innocent.  For the prosecution to discharge its burden of proving the defendant's guilt, it must prove beyond reasonable doubt every element that makes up the offence charged and similarly exclude any possible defence.
7. [7]
   Since there are three charges, I consider each count separately and evaluate the evidence relating to that count to decide whether I’m satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  Any doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one count is considered when assessing the truthfulness or reliability of other counts and her evidence generally.
8. [8]
   The circumstances of the alleged offending are different, but my general assessment of witnesses will be relevant to all counts.  If I have a reasonable doubt about one aspect of the evidence, that will be relevant to the other count.
9. [9]
   The evidence comprises the witness’s testimony, exhibits and express admissions.  For the most part, the facts can be proved by direct and circumstantial evidence that provides a proper basis for the court to draw inferences.  The court must only draw reasonable inferences from basal facts proved by the evidence, where there is a logical and rational connection between those facts and the inferences, deductions, or conclusions.  In a case where the outcome (or an essential element) is based entirely or substantially upon circumstantial evidence, where there is an inference reasonably open that is adverse to the defendant (i.e. one pointing to his guilt) and an inference in his favour (i.e. one consistent with innocence), I may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt to my mind.^[2]
10. [10]
    The case is wholly dependent on the credit of the complainant.  The crown relies upon the demonstrated honesty and sincerity of the complainant, her specificity and consistency with preliminary complaint evidence and her distressed condition.  On the contrary, the defence argues that the complainant was demonstrably unreliable, the conduct was “impossible” when considered in light of MC and CC sharing in the room, and the objective consistency of the defendant’s version.

Complainant’s Testimony

11. [11]
    The complainant’s testimony comprised of her recorded conversation with her sister from about 2:16 pm on 2 January 2023, a written statement subsequently prepared by MM dated 2 January 2023, which was adopted by the complainant, and a recorded conversation with police at the police station made on 26 February 2023 all relied upon pursuant to s 93A of the Evidence Act 1977 (Qld).  In addition, the complainant gave evidence on 1 March 2024 that was recorded pursuant to s 21A of the Evidence Act 1977 (Qld).  At that time, the complainant has her evidence by an audio/visual link between a separate room and the courtroom.  There was an independent support person sitting in the room and no other person, and I am satisfied that the complainant could not see the defendant, who was present in the courtroom at the time.  The court was closed during the pre-recorded evidence and when it was replayed during the trial.  All of these measures used to take and show the complainant’s evidence were by the court's standard and routine procedure.  I acknowledge that I will not draw any adverse inference as to the defendant’s guilt and that the evidence has no greater or less probative value because it was given in the mode.  I assessed this evidence in the same way as the other probative evidence in the case.
12. [12]
    I also received a copy of the transcripts as an aide regarding the complainant’s evidence, which consisted of the formal recorded conversation between the complainant and her sister and the police interview.
13. [13]
    In her first recorded conversation with her sister, the 16-year-old complainant said that she arrived at her sister, MM's New Year’s Eve twenty-first birthday event at the Pier Bar at 6:50 pm.  The complainant stayed until 7:58 pm  when she arranged to stay out with the defendant.  She left the Pier Bar as required at 8:00 pm, and mistakenly walked towards the Cairns wharf instead of the Esplanade, then turned back and walked through the city.  They met some of the complainant's high school friends and decided to ‘hang out’ at Timezone with a group of about eight people. They stayed there for an hour or two. During this time, the complainant consumed a joint and some alcoholic beverages, so they weren’t checking the time but could check their phone for the exact times. 
14. [14]
    During the evening preceding the alleged offending, the complainant admitted to drinking alcohol and smoking cannabis.  In her police interview, she described her state as: “And then after that I had been basically, I was so drunk, I was so messy, I was drunk, I was under influence of both marijuana and alcohol and, um, after 12:00 basically me and [the defendant] had gone inside.”  The defendant’s parents, MC and CC, MM, and MO, also testified about the birthday function.  Others who attended the birthday function testified variously to recall the complainant drinking alcohol but opined that the complainant did not appear intoxicated throughout the evening.
15. [15]
    After attending to the event, the complainant went with the defendant to a hotel room reserved for the defendant and his parents.  She shared a hotel bed with the defendant in a twin shared hotel room with the defendant’s parents, MC and CC, using the other bed.  The room had an external glass sliding door leading to a small balcony, also referred to as a ‘veranda’ by some witnesses.  The complainant stated: 

“We watched the fire works and then they went to sleep and we went back out on the veranda and smoked more weed. And throughout the night, until 1:31am, we had been going down I think two more times to get alcohol from the vending machine. Um, at one stage, I think, during the alcohol run um, [the defendant] had ah, some cash that wouldn’t be accepted through the vending machine, it kept spitting it out, so he ended having, I think, he left me upstairs outside the elevator in a seat by myself in the hotel because he was talking to a guy who he gave twenty cash to and the guy paid twenty on his card on the vending machine. So, I had been left upstairs during that time. Um, and then, once he came back up through the elevator, we went back inside the room and this was around maybe 1 o’clock um, not 1:31 because, at 1 o’clock, we had gone into the bathroom together and we were just laughing. We had made our way there um, just laughing, looking at ourselves in the mirror. Um, having fun, you know, just cousin things. Pure enjoyment. And then, I remember it was 1:31, was the time that we had, or I had gone to sleep. I don’t know about [the defendant], I went to bed fully clothed, laid on my side, but something about my pants is that um, my pants are buttoned and zipped up but there’s a place that you can tie them even tighter around the waist if they don’t um, if they aren’t tight enough, and I had undone that throughout the night, because, you know, I was comfortable. I was in a hotel. My pants were still zipped and buttoned up, but it was just not tied tightly around my waist. But I had gone to bed with them untied but everything else done up.”

16. [16]
    The complainant then recalled that she went to bed clothed and awoke to the defendant’s touching.  About events of the morning of 1 January 2023, the complainant said:

“I had fallen asleep, I think around 1:31. It was when I checked my watch on my wrist, and that was all for the early morning, very like, late night December 31^st and early morning January 1^st. Um, later, around 7:00 AM, I had woken up to my pants down under my buttocks and my underwear pushed to the side where it was exposing my asshole and my vagina. And I had felt him, [the defendant], pushing his penis up against me outside of clothing. And I had felt him put his fingers inside of me, take them out, put them in his mouth, ‘cause you could hear the suckle noises’, and put it back in. Um, at this point in time, I was in flight, fight or freeze and I decided to try and pull up my pants and say no and move over quietly, but I was trying to be quiet because his parents were sleeping in the bed on the same room but next to us with a um, nightstand between us, with a lamp on it. And at this time, I didn’t have my glasses on, and it was also very dark in the room because the blinds were closed. So, it was hard for me to really process what was happening. Um, but I do remember, I was on the right side of the bed if you stood in front of it, and I was facing a wall. Um, after I had said no and tried bringing my clothes up, he kept trying to hump me and um, clearly, it was not working. And he decided to get up after he was humping me because, yeah, as he was humping me, he was also jerking off, and I remember, um, laying my head on the side of the bed um, feeling um, very, not able to say anything. Just with my pants up and feeling the bed move up and down constantly from his hand movements. I saw him get up with no shirt, go to the bathroom, stayed there for around maybe, ten minutes or five minutes or however long, I wasn’t looking at my clock at that time, but I was trying to see what the time was. Um, and I couldn’t see what it was on my watch, is what I meant, so because it was still dark, so I decided, while he was in the bathroom to reach over and look at his phone, and I think it read 7:02 or around, between 7 o’clock and 7:05am.”

17. [17]
    After speaking about a conversation had with the defendant after he had returned from the bathroom, which I deal with later, the complainant added:

“And um, oh yeah, also, another detail is when I had woken up, I woken up with my breasts exposed, as well. Outside of my bra, and my crop top that I had been wearing. Um, it hadn’t been by accident, it had been, my bra had been pulled up, not down, so they were hanging out that way.”

18. [18]
    When asked to return to the events later in the recording she said:

“I’d woken up with my pants down at my ass. Um, like, just below. More [INDISTINCT] my underwear moved to the side. [the defendant] had his fingers in me, pulled them out, sucked on them, put them back in. Um, he was humping against me, I oh, I, well, after he put back, put them back in I’m like, nuh. Um, lifted my pants up, um, he wasn’t just fingering me, he was also rubbing my clitoris. Um, so I pulled my pants up, pulled my underwear up, and I was trying to roll over, you know, move away and said like, you know, stop. Like, no, and he’s like, trying to hump me and I’m just like, no. And then um, kept rolling over and then he was like, okay. And just went to the bathroom. So, it was like a, okay I’m not getting what I want, because he had tried sticking it in. Um, clearly, and that’s, like, I started like, freaking out bigtime. Um, and he’s like, alright. And um, before he had tried sticking it in, that was when he was jerking off and he was masturbating and like, fingering and all that shit and that was when I just had woken up. So, after I was like, clearly fully awake and he tried, he just went into the bathroom.”

19. [19]
    After looking at the time on the defendant’s phone while he was in the bathroom, the complainant described the following conversations in the bedroom then on the balcony/veranda:

“And, after I’d done that, I just laid on my back facing the roof until he had come back from the bathroom and put his shirt on.  And, after I’d done that, I just laid on my back facing the roof until he had come back from the bathroom and put his shirt on. And he had said to me oh, ah, wait, he was ah, I think he was about to go on the veranda, and I had called him over and I said, can you come here please and I said, can you please never say anything about this. This never happened and you don’t do that. And I said I will not tell my parents and, this was more a reaction of I wanna be safe and I wanna get out of here. So, after that, we had moved to the veranda and I’d say that was around 7:05 AM. And because my phone was still flat um, I had asked him if I could borrow his phone to call my mother as that’s the only number I can recall. He said yes and I called my mother asking to be picked up. She unfortunately couldn’t pick me up at that time, so I waited a little, called her back, and it, she said she might think about getting me an Uber, but it got to the point where um, [the defendant] had offered to get an Uber for me. He asked me why I was leaving and I, he asked me if I was leaving because of what happened and I said yes. And, after when we first went out on the veranda, all I remember him saying was I’m sorry, I’m sorry, I’m sorry. Like, I’m sorry this happened. I’m sorry and I said I didn’t consent and he says I know, I’m sorry, um, so he was fully aware in the situation that I did not consent and I was not awake during half of it.”

20. [20]
    Later in that recording, she said:

“I was on my back laying and he had gotten out of the bathroom. So, I pulled him aside, I said hey, I’m your cousin. That’s not okay. Ah, we don’t speak, like, I’m not gonna tell my parents. We don’t speak about this. This never happened. I, I remember vividly saying this never happened. Like, I will not, and then when we were on the balcony, I repeated I did not consent and he’d like, yes, I know. I’m sorry. I said I will not tell my parents about this. Um, and he was lighting up a cigarette.”

21. [21]
    In her later written statement prepared by the complainant’s sister and adopted by the complainant on 2 January 2023,^[3] she consistently says:

“Approximately 0700 h on 01 Jan 23, I woke up to my pants that had been pulled down to underneath buttocks, my bra pulled up exposing my breasts and my underwear pushed to the side exposing my vagina. I could feel [the defendant] rubbing his penis against me and inserting his fingers into my vagina. He proceeded to take his fingers out and put them in his mouth, then reinsert them into my vagina. I tried to pull up my pants as I was highly distressed and told him, “No.”, quietly.  As his parents were in the same room in a different bed located next to us. He continuously tried to hump me after the fact. Shortly after, he decided to get up and go into the bathroom.”

22. [22]
    In the same formal written statement, she consistently says:

“At 0705 h on 01 Jan 23, I reached over to check the time on [the defendant]’s phone before he exited the bathroom to put his shirt on. He went to exit to the balcony before I asked him, “Come over here, please? Please never say anything about this? This never happened and you don’t do that. I will not tell my Parents.” We then relocated to the balcony, were I asked to use his phone to contact my Mother, SM due to my phone bearing flat. He agreed, I called SM, but she was unable to pick me up. I proceeded to call her for a second time, were she stated the same answer. [the defendant] then offered to book an Uber, which I accepted. He then asked, “Why are you leaving? Is it because of what happened?” I then stated, “Yes. I didn’t consent.” He replies, “I’m sorry, I’m sorry, I’m sorry.”

23. [23]
    Then by her later recorded interview with police about four weeks later on 26 February 2023, the complainant again provided a consistent account, as follows:

“… then we went to bed. And then the next morning I remember I woke up at 7:00 AM exactly because, um, well it must have been, it must have been, well not 7:00 AM, so it must have been like 6-like-58, like something really close to 7:00 and I woke up to my breast exposed, my pants down, [the defendant] rubbing himself up against me, and this is when he continued to slide my underwear over and put his fingers inside of me, took them out, licked them and then put them back inside of me. And, um, he tried rubbing my vagina as well and I, and then this is when he tried putting it in and I said no, stop it. And all I can remember when it was happening to me was laying on my side wondering why this was happening and I felt like I couldn’t speak at that moment, I was definitely in freeze. Um, and that, and then basically I said stop, and then after that he got up and he went in the bathroom ‘cause he stayed in there for a couple of minutes. And then, um, when he was in the bathroom I quickly ran over and checked someone’s phone, I think it was his or his mum’s phone in the bedside table between the two beds. And all this was happening I was, um, they were, his parents were in the bed next to us, but there was a bedside table in between it. And, um, I was checking the phone and it said 7, 7:00 AM or 7:01 AM. So that’s why I think that I might have woken up very close to 7:00 ‘cause this only lasted around like two minutes of what happened to me, but I remember laying, it felt longer in my head because of what was happening, but I know it would have been a short amount of time. And then this was when he came back and I said you don’t tell anyone about this, I won’t tell anyone about this, you, like this never happened and he’s like okay.  And then we went out to the veranda and because it was so dark in the room, I thought it was still like dark and that’s why I opened up and it's like light …”

24. [24]
    Later in the interview, when responding to probing police questions, the complainant was able to recall more and additional detail while remaining consistent in overall her account, as follows:

“SCON BUCKLE: On top of the covers? Okay. So, you’ve woken up and you were in that position facing the wall.

COMPLAINANT: Yep.

SCON BUCKLE: And he was behind you facing the same way basically. What’s the very first thing that you notice when you woke up?

COMPLAINANT: Him rubbing up against me.

SCON BUCKLE: Yep, and describe that to me?

COMPLAINANT: Um, I felt his boner up against my arse, and then I felt the hand on my breasts, and then the hand moved down.

SCON BUCKLE: Okay. So, he was rubbing up against you. How long was that going on for do you think?

COMPLAINANT: I don’t know. Um, well I mean if it’s in the short span of what, the two minutes that happened maybe say for 30 seconds and that’s when he moved on to the other stuff.

SCON BUCKLE: So, when he was rubbing up against you and he had his hand on your breasts and moved it down what was your clothes like?

COMPLAINANT: So, my shirt - -

SCON BUCKLE: What were you wearing then?

COMPLAINANT: It was all the same, I just know that my pants had been lowered to around just above my knees.

SCON BUCKLE: Mmhmm.

COMPLAINANT: My shirt and my bra was pulled up over my breasts and I was fully exposed, and my, but my underwear was on, he just slid it to the side to do what he did.

SCON BUCKLE: Okay. Okay. And when he had his hand on your breast what was he doing with his hand when it was there?

COMPLAINANT: Squeezing it, and then when he tried moving down to put his fingers in me, he kissed my cheek.

SCON BUCKLE: Okay. Do you remember which breast he was squeezing?

COMPLAINANT: I think it was my left.

SCON BUCKLE: Okay. And so, he’s moved his hand down and tell me as much as you can remember about what he did then?

COMPLAINANT: It would have been his right hand and he’s kinda pushed me on my back to do it.

SCON BUCKLE: Mmhmm.

COMPLAINANT: And put it in and I just, I’m, I’m laying, but I guess I am laying on my back and my head is still to the side when he’s pushed me over back on my back, fingers in, out, in his mouth, back in, took them out, tried rubbing it and then that’s when he tried getting in the position to put his penis in me and that’s when I finally you know stopped freezing and said no.

SCON BUCKLE: Yep. And so, when he put his fingers in what did he put them in? 

COMPLAINANT: My vagina.

SCON BUCKLE: Okay. And do you know how far in, like what - -

COMPLAINANT: Fully into and did that.

SCON BUCKLE: Like a flick motion?

COMPLAINANT: Yep.

SCON BUCKLE: Yep, and so two fingers?

COMPLAINANT: Yep.

SCON BUCKLE: Okay. So, he’s done that, then he’s taken them out and licked them?

COMPLAINANT: Yep, put them in his mouth, sucked on them, then put them back in.

SCON BUCKLE: Put them back again. Done the same thing again or was there something different?

COMPLAINANT: Ah, so it was yep, the same thing again after he - -

SCON BUCKLE: Okay. And did he, when he took them out did he do anything with them then the second time?

COMPLAINANT: Um, he tried rubbing my clitoris.

SCON BUCKLE: Yep, and how long did he do that for do you think?

COMPLAINANT: 10 seconds.

SCON BUCKLE: Yep. Okay. And then after he stopped doing that is that when he got into a different position?

COMPLAINANT: Yeah.

SCON BUCKLE: So - -

COMPLAINANT: He was on like one knee.

SCON BUCKLE: Yep.

COMPLAINANT: More of like trying to, it was really dark, but I remember feeling it and you know you can feel where there’s pressure in the bed and like ‘cause he was, yeah, and I, I knew, I knew he was, I know he was gonna try that.

SCON BUCKLE: Yep. Do you know if he was wearing any clothes?

COMPLAINANT: I thought he was, but then when he got up he had no shirt on.

SCON BUCKLE: Yep. What about his lower part?

COMPLAINANT: I think he might have had pants on.

SCON BUCKLE: Okay. Um, so when he got on top of you and he was on one knee was he putting any pressure on your vaginal area or was it, no, he was just - -

COMPLAINANT: He just tried. He, like he, like he went to and that’s when I like fuck and I pushed my legs, like I pushed myself over and I’m like no. Like I moved myself away over the bed.

SCON BUCKLE: Yep.

COMPLAINANT: And I’m surprised from that little rustle that no one had heard anything.

SCON BUCKLE: Yep.

COMPLAINANT: ‘Cause it wasn’t that quiet.

SCON BUCKLE: Yep. So, you said no?

COMPLAINANT: I said no.

SCON BUCKLE: Yep, and then what happened after that?

COMPLAINANT: And then that’s when he got up and he went to the bathroom.

SCON BUCKLE: Did he say anything to you throughout that whole process?

COMPLAINANT: Um, no.

SCON BUCKLE: No?

COMPLAINANT: No.

SCON BUCKLE: Did he say anything to you when you said no?

COMPLAINANT: Um, no. There was just silence and then he went to the bathroom, came back and I said you don’t tell anyone about this, and he said okay.

SCON BUCKLE: Okay.”

25. [25]
    The complainant later, and again, described her hurried and unplanned departure to police this way:

“My phone was flat, and I said give me your phone, I wanna call my parents and I’m like, Mum, can I please come home, no. Call her a second time, Mum, can I please come home, no, we can’t pick you up, we’re still hungover. And then I’m just like okay, hangs up and they’re like we’ll, you know we’ll try and figure something out. I hung up and I said to him, and he’s like I can get you an Uber home and I’m like yes, please, and he’s like are you leaving because of what happened, I said yeah, yeah, that’s why I’m leaving. And, um, basically, um, I got, I got that Uber home, um, and I called, I think I must have called my parents off of his phone before I’d left and say hey, or he must have, I said, like he was like hey, [the complainant]’s getting an Uber home, like I’m getting an Uber so you don’t, you know I’m coming home. Anyway, so the guy in the black van comes picks me up through the Uber and then you know we were chatting, and I was just kinda quiet. I’d run out, I’d grabbed all my stuff and I just ran out and as I was running out the Rydges door his parents were waking up and they’re like, oh, why is she going, and I said I just have to go. Like there was no like conversation. Like they were waking up as I was leaving, it was supposed to be planned for them to take me home. It was just stupid like, anyways, but, um, that’s when I got home and after like, after the Uber I got home.”

26. [26]
    The complainant gave recorded evidence on 1 March 2024.  She affirmed the truth of her recorded interview to police on 26 February 2023, recording of the formal statement with the complainant’s sister and the formal written statement of 2 January 2023.  She was not specifically challenged about the specific differences of her account given in the evolving statements and evidence, including attributed post-offending remarks by the defendant; suffice it to say that was challenged and rejected by the defendant’s case.  During cross-examination, the complainant rejected the propositions to the effect that there was no sexual contact between herself and the defendant and that the only physical contact between them was to put his hands on her back for warmth. 
27. [27]
    Having compared and contrasted the complainant’s accounts over the course of her statements and pre-recorded evidence, it seems to me that the core elements of the complainant's narrative remain consistent such as the time she woke up, the presence of the defendant, and the nature of the alleged conduct. 
28. [28]
    But there are several factual matters which are relied upon by the defendant as being important factual inconsistencies that were first mentioned when the complainant spoke to in the police on 26 February 2023, including that the defendant touched and squeezed her breasts, pushed onto her back, kissed her cheek, flicking hand movements, and going on one knee to attempt penetration.
29. [29]
    Obviously, the reliability of a witness who says inconsistently different things at different times is called into consideration. 
30. [30]
    It is my experience that people can have fragmented or evolving memories following trauma.  The stress and trauma of the event may cause someone to recall details at different times.  For example, despite not including the breast touching in her earlier statements, the complaint was made on 2 January 2023 to MO who testified that the complainant “said that it was, like – she said that he had her – his fingers inside of her vagina and that he was touching her breasts ...”. 
31. [31]
    The other factual discrepancies can be attributed to the emergence of new details rather than inconsistencies in her various accounts. This is understandable considering the nature and formality of her statements. It seems that when the complainant was in the unusual, quasi-police environment with her sister, she focused on the most serious aspects (vaginal penetration) in her initial formal recorded and written statements. During the more structured and formal police interview, she was prompted to recall and articulate specific actions and sensations. This prompting led to her apparent recollection of additional details as she processed the event more fully. The emergence of new details in police interviews is common and can be attributed to the nature of trauma and the unique way memory functions.
32. [32]
    On my reckoning of the complainant’s accounts over the course of her statements and pre-recorded evidence, the core elements of the complainant’s account remain consistent, and the overall credibility of the testimony should be evaluated considering the context in which each statement was made.  There are variations in the level of detail, specific actions described, and contextual background.  However, these differences are not inconsistencies when compared to her overall account and tend to enhance the complainant’s honesty and reliability.

Preliminary Complaint^[4]

33. [33]
    The complainant complained to MM, MO, SM, and MT before making her first formal witness statement to her sister Maya, a military police officer, given in or in anticipation of a criminal proceeding in relation to the alleged offending.
34. [34]
    I only consider evidence of the preliminary complaint as it relates to the complainant’s credibility for the limited purpose of assessing consistency or inconsistency of the complainant’s statement or conduct to buttress or otherwise doubt the complainant’s credibility about the commission of the offence,^[5] but it has no probative value or capacity to independently prove anything.^[6] Consistency between the account of those other witnesses of the complainant’s complaint and the complainant’s evidence possibly enhances the likelihood that her testimony is true, that is, it may bolster the complainant’s credit because of consistency.  Conversely, any inconsistencies between a witness’s account of the complainant’s complaint and the complainant’s evidence may cause you to have doubts about the complainant’s credibility or reliability.  In any event, I have no regard to any preliminary complaint evidence as proof of what happened, that is, it does not independently prove anything.
35. [35]
    The court received evidence from MM, MO, SM and MT for this limited purpose.  
36. [36]
    MM and MO gave their evidence utilising the court’s video link technology following the court's standard and routine procedure.  I acknowledge that I will not draw any adverse inference as to the defendant’s guilt and that the evidence does not have any greater or less probative value because it was given in the mode.  I assessed this evidence in the same way as the other probative evidence in the case.
37. [37]
    MM, who is the complainant’s older sister and a military-trained police officer, spoke to the complainant when she arrived home in the early morning of 1 January 2023.  She testified that she saw the complainant:

“The next morning when she arrived home … I was in her bedroom, and she walked in and sat down on the edge of her bed.  …. She sat down and she started to physically get emotional.  What I mean by emotional is she started to cry, hyperventilate, just very physically distressed, in my opinion. … I asked her what was wrong, and she just started to tell me what had occurred the previous night and early hours of that morning.  … [the complainant] said to me that she’d been sexually assaulted by her cousin, [the defendant].  She went into detail about how he sexually assaulted her with me as best as she could at the time due to being quite upset.  She described to me that she was laid down – she’d gone to sleep that night in the same bed as [the defendant] located in the same hotel room as [MC] and [CC].  And that she – he – well, she woke up to her breast exposed with her shirt being pulled up, and – as well as her bra.  And that she woke up to his fingers inside her vagina and rubbing – rubbing her vagina, and trying to – and humping up against her in the bed.”

38. [38]
    When asked whether she described how they were positioned, MM said:  

‘“Yeah, from my memory she – they were laid – she was laid on her side and he was laid on his side behind her.’ MM also recalled that the complainant said that ‘she didn’t want to tell anyone because – that she can’t tell anyone because she doesn’t want to break the family up due to the loss of our grandmother.’”

39. [39]
    When MM was asked whether the complainant explain how the defendant put his fingers into her vagina, she said:

“She – in – from my memory, no.  She just said that [the defendant] was fingering her, took them out, licked his fingers and put them back in from my memory.  That’s what I recall.” …, she was crying pretty much throughout the whole conversation, and … her words or sentences would be broken up because she was trying to get out the information but obviously was so distressed that it was hard for her to talk with the hyperventilating and the … cries in between.”

40. [40]
    MM also testified about speaking with the complainant later on the same day of 1 January 2023, when they were with another friend, MO. About that time, MM said,

“I don’t think we spoke about the whole – the thing as a whole in great detail.  I think we just spoke about the fact that she had been sexually assaulted and that she needed to speak to mum about it, because mum would have understood where she was coming from.  Yeah.  And just reassured her that it wouldn’t break the family up.”  MM then spoke about a further conversation with the complainant when hey returned home, saying: “when we got home back to my parents’ place.  It was myself, [MO], [the complainant] and my mum.  We all went into [the complainant’s] room and [the complainant] told Mum what she had told me.  … To my memory, she just recounted the events she told me earlier that day and just kept – and obviously got visibly distressed again with the hyperventilating and crying and words – and the rest.  She told mum – yeah.  She pretty much retold the events she told me earlier about what occurred the evening – or the late evening of my birthday and early hours of that day.  And again with the – not wanting to break the family up as well.”

41. [41]
    During cross-examination, MM agreed that her police statement did not include any preliminary complaint by the complainant that her breast was exposed and her shirt was pulled up, or that the defendant was “humping up against her” in the bed.  She accepted that her memory may have mixed multiple conversations with the complainant over the last 18 months, but asserted that she remembered specific details of the first complaint told her in the bedroom early on 1 January 2023, saying:

“…I remember the specific – the very obvious, I should say, details that she told me, which was the fingering of the vagina, and just the sexual assault itself.  That’s what I will never forget, but, of course, I’ve forgotten some other details, given how long this has gone on for, and I’ve had multiple conversations with my sister about this topic.”

42. [42]
    MM’s efforts to support the complainant by recording and writing formal statements despite the complainant’s reluctance to make a complaint have contaminated her memory.  As to what MM could specifically recall, it is consistent with critical aspects of the complainant’s allegations relevant to counts 2 and 3.
43. [43]
    MO, who described herself as having known the complainant for 4 years by virtue of being the best friend of the complainant’s older sister, MM, recalls being in the kitchen at about 8:00 am in the morning of 1 January 2023 when the complaint asked if she could have a talk with her. MO deferred any conversation until after the complainant’s grandparents had left the house. 
44. [44]
    MO testified that the complainant “said that it was, like – she said that he had her – his fingers inside of her vagina and that he was touching her breasts ...  I don’t remember exactly what I said, but I was in shock.”  She described that:

“She was calm, but I could see that she was not right.  Like, she did not seem like her normal self.  She seemed – she was calm in the way she said it, but she did not seem like herself.  She was not smiling.  She was – she was very – like, very empty looking.”

45. [45]
    MO also recalled that in the car journey to the complainant’s home, the complainant said that:

“… she had woken up that morning with [the defendant’s] fingers inside of her and he was touching her breasts.  And I believe there was other details that I can’t remember, but [MM] and myself told her that she needed to speak to her mum. …the complainant started to get very emotional, and she was crying and she was upset.”

46. [46]
    She then recounted a conversation when the complainant was talking to her mother upon their arrival to the home that: 

“… she was drinking the night prior and smoking weed in the hotel room – marijuana in the hotel room – with [the defendant]  and that morning when she woke up that his fingers were inside of her vagina and he was touching her breasts and that she freaked out and rang her parents to pick her up but didn’t tell them why, and then caught an Uber home when they couldn’t pick her up.”

47. [47]
    The complainant’s mother, SM, recalled that when the complainant returned home in the morning of 1 June 2023 with MM and MO, she “walked past me; again, head down.  She just said, ‘Mum, I need to talk to you by myself in the bedroom,’ and she walked straight into the house and headed towards her bedroom.”   SM testified that when she went into the complainant’s bedroom, she was sitting on the bed, and she had her head down, and she was crying.  MM and MO were also present.   SM recalled that the complainant said:

“…when she woke up, she had her – her back to [the defendant].  She was laying on her side and she could feel him rubbing himself up against her.  She said that her top was pulled up, her back of her pants were pulled down and that his fingers were inside her vagina.  She then said that – something about him spitting on his hand and then he stuck his fingers back inside her vagina.  And she said she froze and that she said ‘no,’ and then that was when he got out of the bed and then went to the bathroom.  And she said she laid there for a few seconds, was fixing her clothes up, and she got up and she walked out onto the balcony of the room that they were staying in.  She said then that [the defendant] had come from out of the bathroom and came out onto the balcony.  And she said to him that she wanted to go home and that she didn’t consent to what he had done to her and she didn’t want him to tell anyone what had happened, and she needed to use his phone to call home.”

48. [48]
    When SM asked the complainant about the whereabouts of the defendant’s parents, MC and CC, the complainant said that “they were asleep in the bed beside her”.  SM remarked that “… She just kept saying the same things over and over again about what she’d woken up to and she’d just – she said, ‘Mum, I froze.  I couldn’t move.’” SM described the complainant’s demeanour as “She was distraught, crying, breaking down”.
49. [49]
    MT also provided preliminary complaint evidence. He recalled a FaceTime call conversation with the complainant on 1 or 2 January 2023.  The complainant called him and said she had something important to tell MT.  He recalled that she sounded very, very distraught and stressed, and was crying when she explained that she was at a family event for New Year’s and something had occurred between the defendant and her which was that “he had used his fingers in her vagina and had took advantage of her but did not use his penis to take advantage of her”.  During cross-examination he also recalled that the complainant told him that “that she had woke up with her underwear pulled down.”
50. [50]
    There are some differences in the accounts given by those preliminary complaint witnesses.  But the mere existence of differences in the accounts does not mean that of necessity I must reject the complainant’s evidence.  People that are asked on several occasions to repeat what happened at an earlier time, tell a slightly different version each time, and likewise for recipients of a complaint to relay slightly different versions drawing on recollection.  Some inconsistency is to be expected because it is natural enough for people to forget some legally relevant details immediately after a stressful event and to recover those memories later with different stimuli and environments. 
51. [51]
    It seems that the preliminary complaint evidence is consistent with the complainant’s testimony, which does enhance the likelihood of its truth.

Distressed condition

52. [52]
    The crown particularly relies upon this as evidence that the complainant was assaulted and raped by the defendant.  The defence argues that all evidence of distressed condition should be ignored as merely referring to the surrounding circumstances of the various complaints. In this regard, it is said that the distress shown to MM is also infected by her mixed recall of the complainant’s first complaint and later conversations and otherwise explicable as attention-seeking behaviour.
53. [53]
    In my view the complainant’s distressed condition is not so infected by MM’s mixed memory because there is no discernible distressed condition in that recording
54. [54]
    MM saw that the complainant: “started to physically get emotional …was crying pretty much throughout the whole conversation, and … her words or sentences would be broken up because she was trying to get out the information but obviously was so distressed that it was hard for her to talk with the hyperventilating and the … cries in between.”  In my view, this distress condition does relate to the alleged offending.  
55. [55]
    In my view, this evidence can be properly used in support of the evidence that the complainant was assaulted and raped by the defendant.  She showed immediate genuine, unpretentious distress, comprising crying, hyperventilating, and physical anguish, when she first spoke to her sister, MM, in her bedroom upon returning home on the morning of 1 January 2023.  This was her first contact with a close family confidant after she managed her emotions in the presence of the defendant and his parents in that small hotel room, arranging her own early departure and taking the Uber journey home. 
56. [56]
    As for the other evidence of distress described by the other preliminary complaint witnesses, MO, SM, and MT, it relates only as part of the narrative of events in the surrounding circumstances of the other conversation.

Defendant’s Recorded Interview with Police

57. [57]
    The 17-year-old defendant participated in a recorded interview on 20 April 2023, at Tully Police Station with Senior Constable Morgan Buckle and Acting Sergeant Joel Campbell.  He was supported by an individual from the Tully Support Centre. 
58. [58]
    During the interview, the defendant confirmed basic details about himself, including his birthday of 8 December 2007 and that he completed his formal education up to Grade 10.  The police informed him of his rights, including the right to remain silent and the option to speak with a lawyer or a support person.  The defendant acknowledged these rights and decided to proceed without a lawyer.
59. [59]
    The defendant recounted his activities on New Year's Eve 2022/2023, detailing his interactions with the complainant, their return to the hotel, and the events of the night and following morning.  He remembered drinking alcohol at the function comprising three cans of either Bundaberg Rum or Captain Morgan premixed.  He spoke about leaving the birthday function with the complainant, that they were followed by an unknown person, that they then went to Timezone entertainment centre, and then went to the hotel where he smoked some marijuana with the complainant, and then returned to Timezone before eventually returning to the hotel for the night.  He recalled sleeping in the same bed with the complainant at the Rydges Hotel Resort.  Whilst he accepted that he may have cuddled up to her due to the cold, he denied any sexual contact between him and the complainant. 
60. [60]
    He described snuggling up to the complainant for warmth on the morning of 2 June 2024 saying:

“SCON BUCKLE: Then what happened the next morning?

DEFENDANT: She went home, yeah. I called her an Uber, paid for an Uber. I know I did kinda snuggle up at one point with her back ‘cause I was freezing my arse off’.

SCON BUCKLE: Yep. And tell me more about that?

DEFENDANT: Oh, I just kinda went in the foetal position and tucked my hands into her, on to her back where it was warm.

SCON BUCKLE: Mmhmm.

DEFENDANT: Right in the middle [INDISTINCT]

SCON BUCKLE: Mmhmm.

DEFENDANT: I basically, I just sat there freezing [INDISTINCT]

SCON BUCKLE: Yep.

DEFENDANT: But, yeah, that’s all I have, yeah.

SCON BUCKLE: Okay. Alright. And what happened after that? You were cuddled up to her with your hands on your back?

DEFENDANT: [INDISTINCT] but other than that I was [INDISTINCT]

SCON BUCKLE: Yep.

DEFENDANT: It was [INDISTINCT] apart from like, um, moving ‘cause it was cold’.”

61. [61]
    The defendant was then confronted with the complainant’s allegations of inappropriate touching and sexual assault.  He ultimately denied any alleged sexual touching but accepted that he got out of bed to use the toilet.  However, the way that he responded in disbelief that he would or did do such things is remarkable:

“SCON BUCKLE: To say something to it. Okay. Um, so she said pretty much the same thing that you did for the night before and then you guys went to bed in that bed that you described and your parents were asleep in the room next to you, or the bed next to you, sorry.

DEFENDANT: We were the same description of - -

SCON BUCKLE: Of the room, yeah.

DEFENDANT: Oh, right.

SCON BUCKLE: Yep. Um, so the following morning, she said it was around 7 o’clock in the morning at the time.

DEFENDANT: So, I was close.

SCON BUCKLE: Yep. Um, she said that she woke up and the first thing she felt was that you were spooning her and rubbing up against her. Um, she said that she felt you had a hard, a boner, so an erection that was up against her and you had your hand on her breast and squeezed her breast. Do you have anything to say in relation to that?

DEFENDANT: That’s just disgusting [INDISTINCT] no, I, I don’t believe I would have done that.

SCON BUCKLE: Did that happen?

APPONI: I don’t know, no. I don’t even believe I’d do that, no.

SCON BUCKLE: Okay. Um, she said that she noticed that her top and bra had been pulled up above her boobs so they were exposed and that her trouser pants were pulled down and she only had her underwear on.

SCON BUCKLE: Do you recall at any point that her clothes - -

DEFENDANT: No, I don’t have a [INDISTINCT]

SCON BUCKLE: Okay. Um, she said that you then moved your hand down her body and to her vagina and you put two fingers insider her vagina and made a flicking motions with your fingers and then pulled them out and put them in your mouth.

DEFENDANT: Ah, no, I don’t wanna hear anymore. That’s gross. No, I, no, that’s fucked up.

SCON BUCKLE: Mm. So, did any of that happen?

DEFENDANT: Nup.

SCON BUCKLE: Okay. She then described that that same process with the fingers happened a second time. Um, she - -

DEFENDANT: No.

SCON BUCKLE: Said that you then moved up on to one knee and she believed that that was you trying to have sex with her which is when she reacted and said no and pushed you away and you then went into the bathroom for a period of time. So, did any of that happen?

DEFENDANT: No.

SCON BUCKLE: Okay. Did you get out of the bed and go into the bathroom for a period of time?

DEFENDANT: I got out of bed to go toilet, yeah.

SCON BUCKLE: Um, she then said that she, you walked back out after that, she said not to tell anyone, um, her phone was flat and therefore you organised an Uber for her.

DEFENDANT: I thought she had no money [INDISTINCT]

SCON BUCKLE: So, when I first mentioned that to you you said you don’t believe it would have happened.

DEFENDANT: I don’t believe that would have happened, see I just don’t believe myself doing that, but also from my recollection none of that happened.

SCON BUCKLE: Yep. ‘Cause - -

DEFENDANT: None of that happened.

SCON BUCKLE: Were you still under the influence of anything at the time that would inhibit your memory?

DEFENDANT: No.

SCON BUCKLE: No?

DEFENDANT: I don’t think so. I hope not.

SCON BUCKLE: Do you have a clear memory of what - -

DEFENDANT: Well, I’ve got - -

SCON BUCKLE: Happened that morning?

DEFENDANT: A clear memory of what happened, yeah.

SCON BUCKLE: Okay. Do you know why she would be saying that any of this would be happening?

DEFENDANT: No, I don’t have a clue.

SCON BUCKLE: Mm. So other than having your arms against her back did you touch her on her body at any other place?

DEFENDANT: Nup.

SCON BUCKLE: No.

DEFENDANT: Oh, unless I kicked her or you know there, but - -

SCON BUCKLE: Yep, but with your hands did you touch her?

DEFENDANT: No, I don’t believe I did. I say that and I just can’t, I don’t believe I did, but I say that according to her statement I don’t believe I did [INDISTINCT] I know I didn’t from [INDISTINCT]

SCON BUCKLE: Okay. Alright. Did you touch her vagina at any point, and did you touch her breasts at any point?

DEFENDANT: No.

SCON BUCKLE: Okay. Was there any, was there any conduct between the two of you, any flirting or anything that would imply a sexual nature?

APPONI: I’m just trying to think. Um, no.

SCON BUCKLE: No?

DEFENDANT: No.”

62. [62]
    The defendant did not testify in the trial and was not obliged to give evidence, or call witnesses to testify or otherwise produce evidence in his trial.  His participation in a recorded interview with police on 20 April 2023 does not shift any evidentiary burden to him.  The prosecution retains the burden of proving each of the elements of the offence beyond reasonable doubt, having regard to the whole of the evidence.
63. [63]
    But this does not call for a choice of the competing evidence as between the complainant and the defendant.  Indeed, it is not a pre-requisite to an acquittal for the defendant to be believed.^[7]  If his evidence is found credible and reliable so that it provides a satisfying answer to the prosecution’s case, he ought be acquitted.  Similarly, he should be acquitted if his evidence is found unconvincing, yet I’m left with reasonable doubt.  Of course, if I’m unconvinced by the defence evidence, I’ll set it aside, and consider on the rest of the evidence I accept, whether I’m satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.
64. [64]
    The crown argue that the defendant was not candid when talking to police.  It was implausible, it is submitted, that the defendant was seeking to get warm by merely cuddling up and putting his hands on the complainant’s back.  The crown also points to the unusual responses by the defendant as to his expectant belief of his behaviour instead of a clear rejection of the conduct, although later denying any culpable conduct.
65. [65]
    The defence counsel points to the defendant’s non-verbal responses to the allegations as they are put him, his meek and mild demeanour, the implausibility of him brazenly acting in the presence of his parents in the hotel room, and his clear memory.

Out of court confessional statements

66. [66]
    The complainant testified about the defendant apologising to the complainant when they were on the balcony/veranda shortly after the offending conduct.  The evidence was not subject to challenge or contradiction.  The prosecution relies upon this evidence as statements against interest in support of the case against him.  In order to rely on that evidence, I must be satisfied that he did give the answers that are attributed to him, that they were true, and what they go to.
67. [67]
    In the recorded conversation with her sister on 2 June 2023, the complainant says: 

“And, after when we first went out on the veranda, all I remember him saying was I’m sorry, I’m sorry, I’m sorry. Like, I’m sorry this happened. I’m sorry and I said I didn’t consent and he says I know, I’m sorry, um, so he was fully aware in the situation that I did not consent and I was not awake during half of it.”

68. [68]
    Later in that same recording, she said: “and then when we were on the balcony, I repeated I did not consent and he’d like, yes, I know. I’m sorry.”
69. [69]
    In her later formal written statement also of 2 June 2023, she consistently says amidst ringing her parents to collect her:

“We then relocated to the balcony, … He then asked, “Why are you leaving? Is it because of what happened?” I then stated, “Yes. I didn’t consent.” He replies, “I’m sorry, I’m sorry, I’m sorry.”

70. [70]
    And, she again referred to the exchange in her later recorded interview with police on 26 February 2023, from the time that the defendant returned from the bathroom, as follows: “he’s like are you leaving because of what happened, I said yeah, yeah, that’s why I’m leaving”.
71. [71]
    I am satisfied that the defendant made the statements attributed to the defendant and that those parts are true and accurate.  They are attributable to the act relied upon for the offending, given their temporal proximity to the alleged offending and recent conversation in the hotel room, as distinct from other conduct.  Therefore, I am satisfied that those things indicate his contrition for the offending conduct, and I rely on them accordingly.

Other Witnesses in the Room

72. [72]
    This is not a case of “word against word”.  Two others apart from the complainant and defendant were in the same room, and the complainant’s account of physical and verbal conduct would have been noticeable to others but is apparently contradicted by their testimony.  In such a case where the outcome of the trial depends on the resolution of a conflict between Crown witnesses, the evidence of one pointing to innocence and the evidence of the other pointing to guilt, if I am in doubt as to which version is correct, I should acquit.^[8]
73. [73]
    MC testified that he had been drinking at the birthday party earlier in the evening, but that he was not “rolling drunk.  He recalled that the complainant was drinking and finishing other’s drinks.  That when he retired to bed in the hotel room, the complainant and defendant were in the other bed.  The beds were separated by the width of a bedside table.  MC recalled that his wife CC went to the bathroom “quite a few times during the night”.   He also said that he used the bathroom overnight.  He described the room lighting as “dim, but with the bathroom light on” and being able to see “what was going on” and make out figures.  Although a usual “light sleeper”, he seemingly slept for periods until being woken by the curtain and the bright sunlight, “probably around 6:30-ish”, but then dozing off again for 15-20 minutes before making coffee.  When he woke the following morning he saw the complainant and the defendant talking on the external balcony.  He testified that he did not hear or see any conversation or interaction between the complainant and defendant.
74. [74]
    Save for the few occasions that MC was disturbed by CC's movement to and from the same bed, it seems to me that MC was too tired and asleep to hear or see any conversation or interaction between the complainant and defendant at the time of the alleged offending at about 7:00 a.m. on 1 January 2023. After that time, he was first woken by the bright sunlight when the complainant went out to the hotel balcony, followed by the defendant.
75. [75]
    CC testified that he had been drinking at the birthday party earlier in the evening and admitted to drinking three or four Scotch and Coke drinks over 3 hours until 9:00 pm.  After watching the early fireworks en route to that venue, she had another “one drink” at the Casino.  She assessed her sobriety as “quite good”, “did not feel drunk” and “not drunk”.  Other witnesses also testified about CC’s sobriety at the New Years Eve birthday event.  MM described her as being erratic, excited and loud and obnoxious.  MO described Coral and MC’s demeanour during the function but accepted that she did not take much notice of them during the evening.  SM opined that MC did not seem intoxicated, but that CC was intoxicated, having regard to her loud, whistling demeanour and her drinking at the function and later continuing to drink at the Casino.  She testified about the arrangements for the complainant to travel home but stayed at the defendant and his family’s hotel room instead. She recalled that the complainant phoned to ask to be collected at about 7 am, but SM declined due to the drinking the night before.
76. [76]
    Upon returning to the hotel room with MC “around 10 o’clock, 10:30”, CC recalled that the defendant and complainant were already in the room, but she could not remember where or what they were doing.  She described herself as: “Feeling a little bit sick, so I went straight to the bathroom and I got changed into my pyjamas … And … went and laid down on the bed.”  At that time, she said she was “Not vomiting at the time.  I felt like I was going to be sick.  Yes.  But I was not vomiting at the time”.  She attributed her unwellness this way:

“I think – honestly, I think being a big day.  I didn’t have anything to eat.  I was drinking a drink that I wouldn’t normally drink.  As in just the – the Scotch and the Coke, because they didn’t have the premixed ones that I would normally drink, and just being in the tuktuk was jerking my stomach a lot and I – it made me – made me feel sick.”

77. [77]
    By reference to photographs, CC described the room and sleeping arrangements with MC and her on the bed nearest to the window and the defendant and the complainant hanging out on the other bed near the internal wall.  She recalled talking with the complainant in the room while MC and the defendant were on the veranda until the “midnight fireworks went off”.  Having not moved from the bed, CC told the others that she was going to sleep.
78. [78]
    In her evidence, CC recalled her restless and vomitous night and observations of the defendant and complainant from 2:00 am on 1 January 2024, as follows:

“I was awake throughout the night.  I woke up around 2 o’clock and I was very sick.  I was vomiting. 

I would go to the toilet, vomit, come back, and it happened a few times right through till early in the morning. 

Roughly I reckon – it was – I felt like it was every half an hour.  It was – I was in and out of the toilet.  I reckon I went about – I reckon I went at least five – five or six times. 

Did you see how they were laying when you got up at 2 am?‑‑‑I can’t say that I seen them exactly at that time, but I did see them in that bed.  I just can’t say which times I had seen them on which occasion I spewed. 

Okay.  Was there any times that you woke up when you spewed that you saw them and you remember how they were laying?‑‑‑Yes. 

How were they laying when you – that you remember?‑‑‑One part – [the defendant], I could see he was cold as the sheet was pulled down and [the complainant] had most of the sheet and he was laying like that cold. 

And you just ‑ ‑ ‑?‑‑‑I could see him.

And just for the recording, you’ve got your arm wrapped around your other arm?‑‑‑Yeah.  So if his back’s to me, his arms like that.  I could see his hands – hand – or hand. 

Like a hugging motion?‑‑‑Like that. 

And you said his back – was his back facing you at that time?‑‑‑Yeah. 

And was he facing the wall then?‑‑‑Yes. 

Did you see how [the complainant] was laying?‑‑‑She was faced curled up in the blanket facing the wall too. 

On her side?‑‑‑Yeah. 

You said that you don’t remember which time it was that you saw them in this position?‑‑‑No. 

Did you see them again in the bed together?‑‑‑Yes.  Because I was checking that I didn’t wake them up when I was sick. 

When did you see them in bed together again; what time?‑‑‑Throughout – well, like I said, I vomited a few times.  I know that definitely I woke [the defendant] when [the complainant] woke up.  I seen them and he was facing me at that time. 

When did [the complainant] wake up?‑‑‑I didn’t have a clock in front of me, but I was going by the light.  I roughly think it was about 7 because the sun was really bright. 

Had you been awake for long at 7?‑‑‑Yes.  I’d been up since 2 every half an hour vomiting.  I couldn’t sleep. 

Okay.  So you said you saw [the complainant] wake up at 7?‑‑‑Yeah. 

What was [the defendant] doing when [the complainant] woke up?‑‑‑He was asleep. 

And what did [the complainant] do when she woke up?‑‑‑She got out of bed, she went around the bed down passed our feet and she went out to the verandah. 

And I might have prematurely again taken this off the visualiser, but when you woke up at – or when [the complainant] woke up at 7 and you were awake, how was [the defendant] and [the complainant] laying?‑‑‑[the defendant] was facing me. 

On his side?‑‑‑Yeah. 

And how was [the complainant] laying before she woke up?‑‑‑She was laying on her – her – her side facing the wall.

You spoke about how [the complainant] had the blanket to herself ‑ ‑ ‑?‑‑‑Yeah. 

‑ ‑ ‑ during the night at about 2 am.  Did she have the blanket to herself at 7?‑‑‑I watched her take the blanket off and get out of bed. 

Did [the defendant] have any blanket?‑‑‑No.  He was curled up on – facing me. 

I’ll hand that exhibit back now, your Honour.  Thank you.  Thank you, Mr Bailiff. 

After [the complainant] woke up and went to the balcony, what happened?‑‑‑I woke [the defendant] up to tell him to get up to – to go out to [the complainant]. 

And did he do that?‑‑‑Yeah. 

What’s the next thing that happened?‑‑‑So I remember them coming in and out because of the bright light.  They opened – I can’t see who came in because they were at my foot of my bed, but the light opened.  So it happened three times and I was waiting for my husband to get up because it was really bright. 

What was your husband doing when [the complainant] woke up at 7?‑‑‑He was just laying there. 

Was he awake; was he asleep?‑‑‑Yeah, he’s awake. 

He was awake.  So he had his eyes open.  After they’d come in and out – well, somebody had come in and out of the verandah three times, what happened?‑‑‑My husband got up.  He made a coffee, and he went out to the verandah.  That’s when the kids came back in, and [the complainant] was sat on the bed next to me on the end.  [the defendant] came in while [MC] was having a cigarette and a coffee. 

Okay.  How was [the complainant] when you saw her in the morning?‑‑‑Normal.  Normal [the complainant]. 

Did [the complainant] stay at the hotel that day?‑‑‑No. 

When did she leave?‑‑‑She left roughly 7.30, 7.35. 

How long after her sitting on the bed did she leave?‑‑‑I can’t tell you how long it was. 

So you said earlier that there was a plan made late in the piece that [the complainant] would stay at your hotel for the night.  Was there a plan in place about how she would get home the next day?‑‑‑We would’ve dropped her home. 

Was that the agreement, was it?‑‑‑Yeah. 

Yeah.  Did you drop her home?‑‑‑No. 

How did – what happened?  What happened when she left?‑‑‑When she left?

Yes.  Well, her leaving.  How did she get home?  How did she leave?‑‑‑By Uber. 

By Uber.  Was that – did you organise that?‑‑‑No.  They – [the defendant] asked to borrow my phone because he knows I’ve got the Uber app on my phone, and he asked if he could borrow my phone to order [the complainant] an Uber home, and I said yes. 

And what did [the complainant] do once the Uber was ordered?‑‑‑She got her stuff together, what she – little that she had, like her phone, her glasses, shoes, and [the defendant] walked her – she said goodbye, that she was going and she says [indistinct] going home and [the defendant] was walking her down – just walked her down. 

You said that [the defendant] looked cold during the night; what clothes was he wearing?‑‑‑Honestly, I can’t ‑ ‑ ‑

Was he wearing clothes?‑‑‑Yes. 

Shirt and pants?”

79. [79]
    During cross-examination, CC provided further evidence including:

“You had some food to eat?‑‑‑We had brought chips, but we hadn’t had a meal or anything.  There was chips and I said to them that they could have chips and it was on a plate or – at – on the ta – there was a table at the end of that bed. 

And you ate that food?‑‑‑I didn’t. 

You didn’t have that food?‑‑‑No. 

Okay.  [the complainant] was having chats with you?‑‑‑Yes. 

Okay.  And did you observe the pants that she was wearing?‑‑‑Yes. 

Were they loose-fitting or tight-fitting pants?‑‑‑Tight. 

Okay?‑‑‑Not as in tight elastic, just tight.  Like ‑ ‑ ‑

Tight all over the lower – the trousers were tight or the waist was tight?---All the waist and this bit tight. 

Okay.  Now, you’ve seen the pictures of the hotel room.  I might just ask Mr Bailiff or his Honour if I can have that back, that is, exhibit 8 exhibit 10, please, Mr Bailiff. 

I’ll put exhibit 10 on the visualiser.  Can you see that photo?‑‑‑Yes. 

You recognise that to be the room that you were sleeping in that night at the Rydges?‑‑‑Looks like that room, yes. 

Okay.  Now, you were sleeping here where my pen is?‑‑‑Yes. 

And MC, your husband, was sleeping next to you?‑‑‑Yes. 

Next to the balcony.  And you’ve given evidence that [the defendant] was here ‑ ‑ ‑?‑‑‑Yeah. 

‑ ‑ ‑ and [the complainant] was on the other side?‑‑‑Correct. 

Now, can you see the sheets that are on the bed that [the defendant] and [the complainant] were sleeping on?‑‑‑Yeah. 

Now, did somebody – was there – when you got home, was there spilt wine on the sheets or the bedspread?---When I went – I got my clothes, I went into the bathroom to get changed and I noticed one of the sheets was on the ground.  And I was like, “Why is there a sheet on the ground,” and I opened it and someone had spilt, like, a red drink on it. 

Do you know where that sheet came from?‑‑‑It was their bed. 

On their bed?‑‑‑Yeah. 

So their bed where my pen is?‑‑‑Yeah. 

So it was a sheet or ‑ ‑ ‑?‑‑‑It’s the ‑ ‑ ‑

Was it a sheet or was it a blanket?‑‑‑Sheet. 

Was the sheet off their bed?‑‑‑Yeah. 

Okay.  Was it this white sheet or was it this – where this cover is at the end?‑‑‑It’s the white sheet on top.

Okay.  What did you do with that sheet?‑‑‑Well, it was in the bathroom.  I looked at it and I asked, “What happened with the sheet?”  Because I’m thinking I’ve got to pay for it.  And [the defendant] said that [the complainant] had spilt a drink on it.

Now, was it one of those beds, then, CC, that had two covers on it to – you know when you jump into a bed and there’s the bottom sheet.  Yes.  And there might be a top sheet and then a doona.  Was the bed one of those?‑‑‑No.  It’s like that.  There’s no doona. 

All right.  So when you saw [the complainant] with the cover, what cover was she using?‑‑‑Oh, we got another sheet because we knew they were going to need another sheet, so when we open the door there’s a laundry area. 

So was it tucked in or was it loose on her?‑‑‑She just had it over her, like, pulled it.

Okay.  So you’re describing it as it was covering her and was she cocooned in it then?‑‑‑Yeah.

Okay.  Thank you.  Thank you, your Honour.  Thank you, Mr Bailiff. 

You didn’t go back to sleep from when you woke up in the middle of the night; do you agree with that?‑‑‑From 2 onwards?

Yes?‑‑‑Yes.

Okay.  And you were awake when you saw [the complainant] stirring?‑‑‑Yes.

And [the defendant] was facing you?‑‑‑Yeah.

Okay.  And [the complainant] got out of bed?‑‑‑Yeah.

And [the defendant] stayed in bed?‑‑‑Correct.

And [the complainant] went to the balcony?‑‑‑Correct.

And [the defendant] was still asleep?‑‑‑Yes.

Did you have to wake up [the defendant]?‑‑‑I woke him – I tried three times to wake him up.

And did he then get up?‑‑‑Yes.

And he joined her on the balcony?‑‑‑Yeah.

Okay.  And did you see them on the balcony?  Or ‑ ‑ ‑?‑‑‑I didn’t visually see them on the balcony, but the light when they opened up the curtain and they weren’t inside – because you – they weren’t inside.  I couldn’t hear inside with the curtain opening and closing and they were outside.

Okay.  And then she came back inside?‑‑‑Correct.

All right.  And an Uber was called, something like that?‑‑‑Yeah.

All right.  Was [the complainant] in a hurry to go?‑‑‑No.  No.

Did she look upset?‑‑‑No.

She wasn’t tense?‑‑‑No.

She didn’t look stressed?‑‑‑No.

Okay.  What time did you check out that day?‑‑‑I think about 9 by the time we – I finally got up.

Is it correct when I say that you have a clear memory of New Years Eve?‑‑‑Yes.

And you had a clear memory of the 1st of January 2022?‑‑‑Yes.

Sorry, ’23?‑‑‑Yes.

Okay.  And you had some alcoholic drinks on New Year’s Eve; would you agree?‑‑‑Yes.

But you weren’t so intoxicated that you can’t recall things?‑‑‑No.

Do you agree?‑‑‑Yes, I agree.

Okay.  CC, you would agree that [the defendant] did not get out of bed first and go to the toilet while [the complainant] was in bed.  Do you agree with that?‑‑‑I’d agree.

Okay.  And you would agree that [the complainant] and [the defendant] did not have a conversation about telling parents after you came out of the toilet?‑‑‑There was no conversation of that.

And you would agree that you saw no physical contact between [the complainant] and [the defendant]?‑‑‑There was no physical contact.

And certainly, you’d never heard [the complainant] say, “No” to [the defendant]?‑‑‑No.

Okay.  And you didn’t see [the defendant] get on top of [the complainant] on one knee?‑‑‑No.

Okay.  Do you agree with me?‑‑‑Yes, I do agree with you.

And you’re awake from 2.30 in the morning, and your eyes were open when [the complainant] woke up?‑‑‑Yep.

Okay.  And you saw [the complainant] get out of bed first?‑‑‑I did”

80. [80]
    The defence urge that the evidence of CC ought to be accepted as reliable and honest despite her unwell state and her being sick throughout the night. CC recounted her recollection of being awake since 2:00 am, seeing the complainant and defendant at different times including the waking complainant going to the balcony, that she had to rouse the defendant to have him speak with her on the balcony, the complainant’s calm demeanour in the room, and the confined room and proximity of the beds.  In those circumstances, it is submitted that I must acquit where this conflicting testimony of CC pointing to innocence results in a reasonable doubt. 
81. [81]
    In my assessment, several aspects of CC's testimony fatally undermine her credibility: (1) She guessed the times without a clock, including 7:00 am “going by the light” when the curtains were open; (2) She recalls having to leave the room to vomit in the bathroom every half hour, which would equate to about 10 times in a 5-hour period from 2:00 am to 7:00 am, yet she only recalls getting up five or six times; (3) This leaves a time gap of 2 hours of unaccounted time, which could be explained by longer periods spent out of the bedroom while in the bathroom, or she was not awake or sufficiently alert for periods amounting to 2 hours; (4) She did not have the defendant and the complainant under constant observation; (5) The room was dark, being curtained from natural light, and, according to MC, the room was dim except with the bathroom light on; (6) She could not specify what times she saw the defendant and complainant; (7) She only recalled two occasions when she saw the defendant; once when he was embracing himself from the cold with his back to her and the complainant curled up on the blanket also facing the wall, and the second time when the defendant was curling up facing CC when the complainant went to the veranda; (8) She did not see the defendant ‘snuggle up’ in a foetal position with his hands on the complainant’s back, nor did she see or hear the defendant go to the toilet, as he accepted in his recorded interview with the police; (9) Her appeal to the defendant to go to the complainant on the veranda is inexplicable; (10) She recalls that MC was awake when the complainant went to the veranda, yet MC recalls only being woken by the bright sunlight upon the curtain opening “probably around – oh, I don’t know, 6:30-ish, I suppose” but he was “sure [the complainant] and [the defendant] were out on the balcony”, then he dozed off again for 15-20 minutes before making coffee; (11) That the defendant may have delayed joining the complainant on the veranda, after some prompting from CC, is not inconsistent with the complainant’s sequence of events, since she did not clearly say that they simultaneously moved to the veranda; (12) Her description of the complainant’s ‘normal’ disposition is incongruous with the complainant child’s sudden need to go home and her efforts to telephone her parents despite the pre-arranged plans, and (13) she was likely in a very unwell and sleep deprived stupor.
82. [82]
    It seems to me that CC was naturally disposed to favour her son.  Still, her deprived and disturbed sleep due to intoxication and vomiting throughout the night took her out of the room periodically and impaired her observations, perceptions, and memory.  It seems to me that these matters completely diminished the reliability and accuracy of her testimony, and I reject her evidence completely. 

Complainant’s Credit

83. [83]
    The crown submits that the complainant will be accepted as honest and reliable.  The prosecutor pointed to contextual indicia of her honesty and sincerity including having to talk about her use of marijuana and drinking despite her age and risk of divulging that to others, especially police; having to speak up about the conduct of her favourite cousin; that the offending occurred in the same room as the defendant’s parents (not at other times when she was alone with the defendant), even being surprised that no one heard it; and that the defendant had not made any earlier advances.  The prosecution also relies upon the specificity of the event as a ‘lived experience’, clothing and conduct, and her precision of time by reference to particular collateral events, for example, Uber receipts, time for exclusion of minors and otherwise looking at the time.  On the contrary, the prosecution also submits that the complainant has no motive to lie and retains the onus to satisfy me that the complainant is telling the truth to prove the case beyond reasonable doubt.
84. [84]
    The defence relied on the complainant’s inconsistencies across her statements and when compared with other crown witnesses, her demeanour changing across the recordings with her sister when compared to the police interview, and the implausibility of her account.  Counsel exemplified the initial version of her pants being removed as incoherent and implausible having regard to her tight clothing, and the variable detail and additional information given across the various statements, for example, the nature of the touching, the defendant masturbating, earlier saying the defendant grabbed her on the bottom, stating to police that she was touched in the breast, kissed, pushed onto her back and on one knee to put his penis inside her. In cross-examination, the complainant was asked questions concerning a motive for her to lie in her account of the defendant's conduct, particularly that she was prone to attention-seeking behaviour, including at school, and also reacting to her parents’ refusal to collect her from the hotel.  Counsel pointed to the complainant’s demeanour to infer an absence of care of others in answering those questions. 
85. [85]
    I reject the defence's asserted motive to lie.  It seems to me that the complainant’s immediate and spontaneous reaction to the events– leaving the defendant and the room, returning to her own home, complaining of rape to her sister and showing emotional distress, are disproportionate and incongruous to the motives attributed by the defence. I cannot discern any other reason why the complainant would make a false complaint, even if the defendant is unaware of it.
86. [86]
    It seems to me that the complainant’s account is both detailed and consistent, with various corroborating elements that enhance its plausibility and believability. The complainant admitted to being under the influence of alcohol and cannabis, which could potentially affect her memory and perception of earlier events but less so in relation to the morning event about seven hours later. The room was darkened by curtains, and she was not wearing her glasses, which could potentially affect her ability to perceive and describe the events accurately.   Her overall account is consistent across multiple statements and recordings, including formal conversations, a written statement, and police interviews.  The complainant provides detailed descriptions of the events, including specific actions, times, and environmental conditions (e.g., the lighting in the room, the position of the beds, the movement of the defendant).  That there are some additions and omissions in the successive statement is explicable by the timing and circumstances of giving the statements, which, in my view, enhance the reliability of the testimony, and I do not accept that they are indicia of deliberate dishonesty, embellishments or inaccuracy in her account.  It seems to me that the complainant’s timing and contents of her accounts are consistent with a genuine recall of her circumstances of initial reluctance to a formal investigation and recalling testimony.  The complainant’s behaviour during the alleged incident and afterwards (e.g., confronting the defendant and seeking to leave the location) was her way of dealing with the trauma, confusion, distress, and desire for safety.
87. [87]
    I wholly accept the complainant’s evidence and am left in no doubt that she is credible.  Her overall account of the alleged offending conduct is both truthful and reliable.
88. [88]
    I turn to elements of the alleged offending now.

Count 1 – Sexual Assault

89. [89]
    Section 352(1)(a) of the Criminal Code Act 1899 (Qld) provides that “Any person who - (a) unlawfully and indecently assaults another person; … is guilty of a crime.”
90. [90]
    Accordingly, the prosecution has the onus to prove beyond reasonable doubt that:

1. The defendant assaulted the complainant;
2. That assault was indecent; and
3. It was unlawful.

91. [91]
    The prosecution contend that the defendant touched the complainant’s breast/s with his hand/s whilst he pressed his penis against her without her consent.

Assault

92. [92]
    A person who strikes, touches or moves or otherwise applies force of any kind to the person of another either directly or indirectly without their consent is said to assault that other person and the act is called an assault.  “Consent” means consent freely and voluntarily given by a person with the ability to know and understand what s/he is doing in giving consent.
93. [93]
    I find that the complainant woke up around 7:00 am on 1 January 2023 in the twin-share hotel room, where the defendant and complainant slept on one bed with the defendant’s parents on the other bed.  She found her pants down, her bra pulled up, and her underwear moved to expose her bottom and vaginal area.  The defendant’s fingers penetrated her vagina; he removed and licked his fingers before reinserting them (subject of counts 2 and 3). The defendant touched the complainant’s breast and squeezed her left breast while ‘humping her’ by pushing or rubbing his penis against her back and side. The complainant tried to stop him by pulling up her pants and saying "no" quietly due to the presence of his parents. The defendant continued to “hump” her and masturbate but stopped when she resisted and moved away. He then went to the bathroom. 
94. [94]
    I am satisfied beyond reasonable doubt that the defendant assaulted the complainant by touching her breasts and squeezing her left breast while ‘humping’ her by pushing or rubbing his penis against her back and side, without her giving consent, while her bra was pulled up, and her underwear was moved to expose her bottom and vaginal area and continued to rub with his penis until she resisted and moved away.

Indecent

95. [95]
    The word “indecent” bears its ordinary everyday meaning.  It is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.  I consider the nature or quality of the act itself, and the motive or purpose of the actor.  Accidental touching would not be indecent.  You must be satisfied beyond reasonable doubt that the touching occurred and was intentional, not accidental, and was of a sexual nature.
96. [96]
    I am satisfied that the assault was deliberate, not accidental and motivated for a sexual purpose that offends against currently accepted standards of decency at this time, place and in these circumstances. 

Unlawful

97. [97]
    I am satisfied beyond reasonable doubt, and it is not otherwise contended, that the assault is unlawful since it was not authorised, justified or excused by law. 
98. [98]
    Therefore, I am bound to conclude that the defendant is guilty of count 1 for the offence of sexual assault.

Count 2 - Rape

99. [99]
    Section 349(1) and (2)(b) of the Criminal Code provide for the offence as follows:

“349  Rape

(1)  Any person who rapes another person is guilty of a crime.

…

(2) A person rapes another person if—

…

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent…”

100. [100]
     The prosecution contend that the defendant put his finger in his mouth and then penetrated the complainant’s vagina with his finger without her consent.
101. [101]
     Accordingly, the prosecution has the onus to prove beyond reasonable doubt that:

1. the defendant penetrated with his finger or fingers, to any extent, the vagina of the complainant, and

2. the complainant did not consent.

Penetration

102. [102]
     The act of physical penetration to any extent, even to the slightest degree, is sufficient.
103. [103]
     I find that the complainant woke up around 7:00 am on 1 January 2023 in the twin-share hotel room, with her bra pulled up, and her underwear moved to expose her bottom and vaginal area, and the defendant’s fingers penetrating her vagina. 
104. [104]
     I am satisfied beyond reasonable doubt that the defendant penetrated with his finger or fingers the vagina of the complainant.

Consent

105. [105]
     “Consent” relevant to this case, means consent freely and voluntarily given by a person with the cognitive capacity to give consent.  Consent does not need to be communicated verbally; it can be communicated nonverbally and inferred from all circumstances. If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.  A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.  Cognitive capacity in this context means that at the time of the alleged offence, the complainant had sufficient understanding to know what was occurring in order to be able to give consent to it.  A complainant who is asleep or otherwise unconscious does not have the cognitive capacity to give consent.  A complainant affected by alcohol and drugs may not have the cognitive capacity to give consent - this depends on the effect of intoxication on his/her cognitive capacity found on the evidence.
106. [106]
     I accept the complainant’s evidence that she was asleep but was awoken when the defendant committed this first act of penetration and that she did not have the cognitive capacity to give consent.  Therefore, I am satisfied beyond reasonable doubt that the complainant did not consent to the defendant penetrating her vagina with his finger or fingers. 
107. [107]
     It must follow and I am bound to conclude that the defendant is guilty of count 2 for the offence of rape.

Count 3 - Rape

108. [108]
     For this charge, also made pursuant to s 349(1) and (2)(b) of the Criminal Code Act 1899 (Qld), the prosecution contends that the defendant again put his finger/s in his mouth and then penetrated the complainant’s vagina with his finger/s without her consent.
109. [109]
     Accordingly, the prosecution must satisfy me beyond reasonable doubt that:

1. the defendant penetrated with his finger or fingers, to any extent, the vagina of the complainant, and

2. the complainant did not consent.

Penetration

110. [110]
     Again, the act of physical penetration to any extent, even to the slightest degree, is sufficient.
111. [111]
     I accept that the complainant felt the defendant withdraw his fingers from her vagina (subject of count 1), and then heard “suckle noises”, attributing the sound to the defendant licking his finger/s before she felt the defendant again insert his finger or fingers into the vagina.  It seems to me that the “suckle noises” can be reasonably, logically and rationally connected to oral sounds of licking fingers, to enable the inference to be drawn that the defendant did lick his fingers before re-inserting his finger or fingers into the complainant’s vagina as alleged.
112. [112]
     Therefore, I am satisfied beyond reasonable doubt that the defendant penetrated with his finger or fingers the vagina of the complainant.

Consent

113. [113]
     I have set out the relevant law for consent above for count 3.
114. [114]
     I find that the complainant never said or did anything to communicate that she does not consent to the act of penetration.  On the contrary, I accept the complainant’s evidence that at this point in time, upon the second penetration of the defendant’s finger or fingers into her vagina, she was experiencing “flight, fight or freeze” and that she tried to stop him by pulling up her pants and saying "no" quietly due to the presence of the defendant’s parents. 
115. [115]
     I am satisfied beyond reasonable doubt that the complainant did not consent to the defendant penetrating her vagina with his finger or fingers. 
116. [116]
     Accordingly, I am bound to conclude that the defendant is guilty of count 3 for the offence of rape.

Verdicts

117. [117]
     For these reasons, the verdicts are:

     1. For count 1, Sexual assault, I find the defendant Guilty.

     2. For count 2, Rape, I find the defendant Guilty.
     3. For Count 3, Rape, I find the defendant Guilty.

Judge D P Morzone KC