R v PRO[2024] QCHC 2

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant, PRO is charged as follows:-

“Count 1: that on or about the 12^th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently assaulted CDE;

Count 2: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO raped CDE;

Count 3: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently assaulted CDE;

Count 4: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently assaulted CDE;

Count 5: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO raped CDE;

Count 6: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO raped CDE;

Count 7: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently dealt with FGH, a child under 16 years;

Count 8: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently dealt with FGH, a child under 16 years; and

Count 9: that on or about the 12th day of October 2022 at Inala in the State of Queensland PRO unlawfully and indecently dealt with FGH, a child under 16 years.”

2. [2]
   The defendant is a juvenile and elected to proceed with a judge alone trial.
3. [3]
   The defendant pleaded not guilty to each of the counts on the indictment.
4. [4]
   On day three of the trial (14 March 2024) the prosecution, having been unable to locate and call the complainant in respect of counts 7-9, FGH, entered a nolle prosequi in respect of each of counts 7, 8 and 9 and the defendant was discharged.^[1] 

Particulars

5. [5]
   The particulars in respect of counts 1-6 are as follows:-

“Count 1: the defendant touched the breast/s of CDE with his hand on top of clothing;

Count 2:  the defendant penetrated the vulva or vagina of CDE to any extent with his finger/s;

Count 3: the defendant kissed CDE on or near her mouth;

Count 4: the defendant placed CDE’s hand on his penis;

Count 5: the defendant penetrated the vulva or vagina of CDE to any extent with his penis;

Count 6: the defendant penetrated the vulva or vagina of CDE to any extent with his penis.”

Elements

6. [6]
   In respect of each of counts 1, 3 and 4 (sexual assault), the prosecution must prove beyond reasonable doubt that the defendant:

1. Assaulted the complainant.

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 she is doing in giving consent.

A person’s consent to an act is not freely and voluntarily given if it is obtained –

1. by force; or
2. by threat or intimidation; or
3. by fear of bodily harm; or
4. by exercise of authority; or
5. by false and fraudulent representations about the nature or purpose of the act; or
6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

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.

2. The assault was unlawful.

An assault is unlawful unless it is authorised, justified or excused by law.

3. The assault was indecent.

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.

7. [7]
   In respect of count 2 (rape), the prosecution must prove beyond reasonable doubt that the defendant

   1. penetrated the vagina or vulva of the other person;
   2. to any extent;
   3. with a thing or part of the defendant’s body that is not a penis (in this case, his finger or fingers);
   4. without the consent of the other person.
8. [8]
   “Consent” means consent freely and voluntarily given by a person with the ability to know and understand what she is doing in giving consent.
9. [9]
   A person’s consent to an act is not freely and voluntarily given if it is obtained –

   1. by force; or

   2. by threat or intimidation; or
   3. by fear and bodily harm; or
   4. by exercise of authority; or
   5. by false and fraudulent representation about the nature or purpose of the act; or
   6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
10. [10]
    Consent may be defined as the agreement to, or the acquiescence in, the sexual act by the complainant.  The acquiescence may be reluctant, or regretted.  The defendant does not have to prove she consented, the prosecution must prove that she did not.
11. [11]
    “Cognitive capacity” in this context means that at the time the offence is alleged to have occurred the complainant had sufficient understanding to know what was occurring in order to be able to give consent to it.
12. [12]
    In respect of each of each counts 5 and 6 (rape), the prosecution must prove beyond reasonable doubt that the defendant:

    1. Had carnal knowledge of the complainant.
    2. To prove “carnal knowledge” the prosecution must prove that the defendant penetrated the genitalia, that is the vulva and/or vagina of the complainant, with his penis.  The offence is complete upon penetration.  Any degree of penetration is sufficient.  It is not necessary for the prosecution to prove that the defendant ejaculated.
    3. The carnal knowledge was without the complainant’s consent.  “Consent” means consent freely and voluntarily given by a person with the ability to know and understand what she is doing in giving consent.

A person’s consent to an act is not freely and voluntarily given if it is obtained –

1. by force; or

2. by threat or intimidation; or
3. by fear of bodily harm; or
4. by exercise of authority; or
5. by false and fraudulent representations about the nature or purpose of the act; or
6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

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.

Evidence

13. [13]
    The complainant, CDE took part in an Evidence Act 1977 (Qld) (‘EA’) s. 93A interview with Senior Constable Aaron Kerridge and Senior Constable Chris Shortis at the Inala Police Station on 17 October 2022.^[2]
14. [14]
    The complainant, CDE’s oral evidence was given before me, as a special witness pursuant to EA s. 21A, on 13 March 2024.
15. [15]
    Evidence was also given by:

    1. ZZ;
    2. CM (mother of the complainant, CDE);
    3. FM (mother of the complainant, FGH);
    4. Senior Constable Natasha Krause;
    5. Plain Clothes Senior Constable Aaron Kerridge; and finally
    6. AA.
16. [16]
    The following exhibits were also tendered:

Exhibit 1 – photograph of defendant’s house;

Exhibit 2 – photograph of McDonalds;

Exhibit 3 – photographs (x 3) of dog park;

Exhibit 4 – photographs (x 3) of basketball court;

Exhibit 5 – photographs (x 7) showing general surroundings of basketball court;

Exhibit 6 – photographs (x 6) of property located in the defendant’s house;

Exhibit 7 – screenshots (x 8) of the defendant’s Instagram account;

Exhibit 8 USB of EA s. 93A interview with complainant, CDE dated 17 October 2022; and

Exhibit 9 – map of the relevant area at Inala marked by complainant, CDE;

Exhibit A – Particulars;

Exhibit B – Admissions;

Exhibit C – Admissions - re relevant locations on a map;

Exhibit D – Admissions;

Exhibit E – Transcript of EA s. 93A statement of CDE dated 17 October 2022; and

Exhibit F – Closing submissions on behalf of defendant child.

Admissions

Exhibit B

1. The map below depicts the locations of certain places described by CDE and FGH in their s. 93A statements to the police:

1. The defendant’s home (A);
2. The dog park (B);
3. The park where basketball can be played (C);
4. The McDonalds restaurant (D).

2. The route from locations C and D in the map shown at paragraph 1 along [redacted] is approximately 1.7 kilometres.

3. On 12 October 2022 at 3.48 am, CDE and FGH walked to the McDonalds Restaurant depicted at location D in the map shown at paragraph 1.  According to CCTV footage:

1. CDE and FGH went to the bathroom immediately upon entering the restaurant;
2. After leaving the bathroom, CDE and FGH went to the counter area.
3. CDE approached the counter while FGH sat down in the seating area.
4. CDE had a conversation with a store attendant.  The store attendant then gave four cups (with lids on) and straws to CDE.
5. CDE and FGH walked out of the restaurant, each carrying two cups.  The time was 3.55 am.

4. On 12 October 2022 at 5.06 am, CDE, FGH, the defendant and a female individual walked into the Richlands Train Station.

5. The defendant was the sole user of the Instagram account ‘[redacted]’, between 11 October 2022 and 18 October 2022.

6. On 18 October 2022 at 00:16 am, a sexual assault nurse examiner conducted a sexual assault forensic examination upon CDE.  CDE declined to participate in a vaginal speculum examination.  During the examination that was conducted, the following observations were made:

1. There was no visible injury to the external genitalia, perineum and perianal areas of CDE.
2. CDE reported tenderness over the lower back near buttocks.
3. On the lower back of CDE, between the left and right hips, at hip-line level, there were three small oval shaped bruises, dark brown in colour.  The bruises measured 0.5 cm – 1.0 cm wide and 0.5 cm in length.
4. On a diagram the examiner depicted the location of the three bruises as follows:

[The agreed admissions contained a diagram with three bruises indicated on the complainant’s buttocks.]

Principles – judge alone trial

17. [17]
    In respect of the principles to be applied in the judge alone trial, I refer to and respectfully adopt the exposition of those principles set out by Smith DCJA in R v MMH [2020] QDC 70, [7]-[10], supported by the cases and legislations cited in those paragraphs of His Honour’s judgment.
18. [18]
    Although the defendant in that trial was an adult, the relevant principles are equally applicable to this judge alone trial of a juvenile.

Directions

19. [19]
    I set out the following further directions, with which I must conduct these proceedings in a judge alone trial:

1. I must reach my verdict only on the evidence, which I have detailed in these reasons.
2. In addition to facts proved by evidence, I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably opened, I must draw the inference that most favours the defendant.

3. The burden rests on the prosecution to prove the guilt of the defendant, beyond reasonable doubt, in respect of each count.  There is no burden on the defendant, who is presumed to be innocent.  I dismiss all feelings of sympathy or prejudice, regardless of who was involved, and regardless of the nature of the allegations or charges.
4. I am required to assess the credibility and reliability of witnesses, and I may accept or reject such parts of the evidence as I see fit in fulfilling that fact-finding function.

Defendant neither giving nor calling evidence

20. [20]
    The defendant has not given or called evidence which is his right.  He is not bound to give or call evidence and is entitled to insist that the prosecution prove the case against him if it can.  The fact that the defendant did not give evidence is not evidence against him.  The prosecution retains the responsibility to prove the guilt of the defendant beyond reasonable doubt in respect of each count.

Separate charges

21. [21]
    Separate charges have been preferred.  I must consider each charge separately evaluating the evidence relating to that particular charge, to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  I will return separate verdicts for each charge.  The evidence in relation to the separate offences is different and so my verdicts need not be the same.  The elements in respect to charges 1, 3 and 4; charge 2; and charges 5 and 6 are all different and again my verdicts need not be the same.

Markuleski direction

22. [22]
    If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to any count, whether by reference to her demeanour or for any other reason, that must be taken into account by me in assessing the truthfulness or reliability of her evidence generally, and in particular, in respect of any other count.

Evidence Act s. 93A Interview

23. [23]
    Part of the evidence of the complainant was a conversation with police officers on 17 October 2022.  The conversation was recorded and the recording was played to me.  The presenting of the evidence of the complainant in this way is a routine practice of the court adopted in every case involving children (as the complainant was at the time of the interview with police) in matters such as these and I should not draw any inference adverse to the defendant because this routine measure was used.

Evidence of special witness

1. The evidence of the complainant CDE was taken pursuant to an order that her evidence be given as a special witness.  That evidence was given before me on 13 March 2024.
2. At the time the complainant gave her evidence she was in a remote room that is separate from the courtroom.

3. The evidence was given by use of an audio-visual link between the room in which the complainant was seated and the courtroom.
4. At the time the complainant gave evidence there was a support person sitting in the room with the complainant, and no other person.
5. While the complainant gave evidence, all non-essential persons were excluded from the courtroom.
6. At the time that the complainant gave evidence, the defendant was present in the courtroom but was so positioned that the complainant could not see the defendant on the monitor, or at all.

24. [24]
    In respect of that evidence given before me pursuant to the order that the complainant was a special witness, I direct myself as follows:

    1. All of the measures I have just outlined used for the taking of evidence from the complainant as a special witness, is a routine practice of the court for taking evidence from a complainant in matters such as this and I must not draw any inference as to the defendant’s guilt because these measures were used.
    2. The probative value of the evidence is not increased or decreased because these measures were used.
    3. This means it is not better evidence, or worse evidence, than if the evidence had been given before me from the witness box in court.
    4. The evidence is not to be given any greater or lesser weight because these routine measures were used.

Transcripts

25. [25]
    A transcript was provided in respect of the EA s. 93A interview of the complainant.  I direct myself that the transcript provided was only an aid, and I have formed my own conclusions about what I saw and heard, making appropriate amendments where necessary to the supplied transcript.

Preliminary complaint evidence

26. [26]
    Preliminary complaint evidence was given by the witnesses ZZ, CM and Senior Constable Natasha Krause.
27. [27]
    In relation to that evidence of preliminary complaint contained within the evidence given by those witnesses I direct myself as follows:

    1. That evidence may only be used as it relates to the credibility of the complainant.  Consistency between the account of the complainant about the alleged offences and what the complainant said, as reported by the preliminary complaint witnesses, is something I may take into account as possibly enhancing the likelihood that the complainant’s testimony as true.
    2. In addition, I may also take into account any inconsistency between the accounts given by the complainant witnesses and the account as given by the complainant in assessing the complainant’s credibility. 
28. [28]
    I cannot, however, regard the things said in the out-of-court statements by the complainant as proof of what, if anything actually happened.  In other words, evidence of what was said on those occasions to the preliminary complaint witnesses may, depending on the view I take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything.

Written admissions

29. [29]
    Some of the evidence in this trial is by way of written admissions jointly agreed to by the prosecution and defendant pursuant to Criminal Code s. 644.  Those admissions are to facts only, and do not constitute an admission, in any way, to any of the indicted counts.

Failure by prosecution to call a material witness

30. [30]
    It is clear that a witness or witnesses other than those who have given evidence might have been able to give some relevant evidence on some aspect of the case.  I must not speculate about what others who were not called might have said if they had been called.  I should act on the basis of the evidence that has been called and only on that evidence.

Admissions against interest

31. [31]
    The prosecution relies on the contents of the screenshots of the defendant’s Instagram contact with the complainant, in particular, on page three.  The prosecution relies on those messages to indicate:-

    1. an implication that the defendant was sexually interested in the complainant; and
    2. an implied acknowledgment of prior sexual activity between the defendant and the complainant.
32. [32]
    In respect of that evidence, I need to be satisfied that the defendant was a participant in the exchange of messages on Instagram between him and the complainant (this is not disputed).  If I am satisfied that the exchange occurred, I then need to decide if the content of that exchange would tend to indicate that the defendant is guilty of one or more of the counts.  If I am not so satisfied, then the evidence cannot be used against him.

Motive to lie

33. [33]
    During the cross-examination of the complainant, it was put to her that she had “made these allegations up” [in respect of the alleged non-consensual sexual interactions with the defendant] because she did not want to get in trouble with her mum when she got home, which would have involved being grounded.  The complainant denied this. 
34. [34]
    I keep in mind that any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist.  If such a motive existed, the defendant may not know of it.  There can be many reasons why a person may make a false complaint.  Even if I am not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean that the complainant is truthful.  It remains necessary for me to satisfy myself that the complainant is truthful.

Robinson direction

35. [35]
    I direct myself that I will need to scrutinise the evidence of the complainant, CDE, with great care before concluding that it assists me in reaching a conclusion that the defendant is guilty of one or more of the counts.  That does not mean that I cannot act on her evidence but I may only do so if I am convinced of its truthfulness and accuracy, bearing in mind the following matters, which may have some effect upon her reliability:-

    • her consumption of alcohol at the time of the alleged offences;
    • her use of drugs leading up to and/or around the time of the alleged offending;
    • her mental health and hospital admission immediately prior to the alleged offending;
    • her admission of hearing voices at or around the time of the alleged offending;
    • her acceptance that her memory was not very good.

Overview

36. [36]
    The complainant was born on 18 January 2006^[3] and was aged 16 in respect of the offence the subject of counts 1-6.
37. [37]
    The defendant was born on 26 April 2005 and was aged 17 at the relevant time.^[4]
38. [38]
    On the evening of 11 October through to the morning of 12 October 2022, the complainant CDE met up with her cousin, FGH at Garden City after school on 11 October 2022, then went to the city where she met up with another cousin, BB, and they all caught a bus to Inala to sleep over at the house of another cousin, CC.  At the time CDE had run away from home.^[5] They were not able to sleep at CC’s house because she was not there.
39. [39]
    CDE and her cousins met up with the defendant, PRO at Inala. PRO obtained alcohol from his house, and they all drank the alcohol at a dog park near his house, where CDE alleges that the defendant touched her breasts (count 1).  The complainant, her two cousins and the defendant walked to another park [redacted] that had a basketball hoop on it, and at that park the complainant alleges that the defendant committed count 2 (digital rape), count 3 (sexual assault – kissing); count 4 (sexual assault – the defendant placing the complainant’s hand on his penis); and counts 5 and 6 (penile rape).
40. [40]
    The complainant and her cousin, FGH walked into the McDonalds restaurant (next to the dog park) at 3.48 am on 12 October 2022, went to the bathroom, went to the counter area and obtained four cups with lids on and straws and then walked out of the restaurant at 3.55 am.^[6]  At 5.06 am on 12 October 2022, the complainant, FGH, the defendant and a female walked into the Richlands Train Station.^[7]
41. [41]
    The complainant made a formal complaint to police on 17 October 2022.^[8]

The evidence

42. [42]
    In the complainant’s first recollection of the events in her EA s. 93A interview^[9] she described meeting the defendant, having a conversation about staying at her cousin CC’s house, the defendant calling up her cousin who was not at home, then going with the defendant to the park near his house where “he got us drunk and tried to get me and my cousin really drunk”.^[10]  The complainant describes that when the group was “drunk out of our heads”, they “ended up walking around” and “stopped at a park where [the defendant] tried to touch me.”^[11]  This appears to be a reference to the facts relevant to count 1 (sexual assault).
43. [43]
    The complainant then says that her cousins “left me with, um, the guy, which he ended up, forcing me to pull my pants down and he was trying to play with me.  Um in places I didn’t like.  And he tried to put his, um, penis in me and tried to push him off me but it didn’t work so he successfully went through with his plan.”^[12]
44. [44]
    Relevantly, the complainant’s first recollection made no mention of the defendant penetrating the complainant’s vagina with his fingers (count 2 – rape), making her touch his penis (count 4 – sexual assault) and/or penetrating her vagina with his penis a second time at the basketball court (count 6 – rape).  Additionally, that first recounting refers only to “the park near … his house”^[13] without any reference to there being more than one park. I note [redacted] and on the opposite side of the road to the defendant’s house, while the basketball court park is 1.7km away along [redacted].^[14]
45. [45]
    The complainant then gave a second versions of events.^[15]  In that account, she refers to meeting the defendant who she describes as “the one that raped us.  Raped me and my cousin.”^[16]  She then describes walking to the house of her older cousin, CC, seeing the defendant again, waiting for him to go to his house and come out with drinks, giving him her phone to charge, then drinking, playing music on his speaker, dancing and then walking to the “basketball weird like, old stair place”.^[17]This recounting of the version has no reference to any sexual contact at the first park.
46. [46]
    The complainant states that, “them two” left (apparently a reference to her cousins), then the defendant grabbed her and told her that he wanted to have sex with her, kept kissing her, dragged her down to the bottom [of the park], started pulling her pants down and her underwear and that’s when he “put his penis ah, tried to put his penis in me” and she tried to push him off.  She said that he was “stronger” and he put his penis in her.^[18]
47. [47]
    The complainant then describes going back and telling her cousins what happened. The complainant says that she and her cousin, BB were walking together while her younger cousin, FGH went to the defendant and they were all walking back to the park (apparently the dog park), although FGH and the defendant had fallen behind. The group (including the defendant) got water to drink, walked to the train station, fell asleep at the train station and then caught the train and fell asleep on the train. The second account describes a single act of penile penetration at the basketball court, does not mention digital penetration at all and does not mention the complainant being made to touch the defendant’s penis.^[19]
48. [48]
    The complainant was then taken at length through the various aspects of her two initial accounts.^[20]
49. [49]
    After initially describing a sexualised conversation taking place at the basketball court^[21] and the defendant touching her “on my boobs”, the complainant then subsequently recalls that “the first time he grabbed my boobs was at the, I just remembered that at the dog park”.^[22]
50. [50]
    The complainant then describes him touching “my vagina” (count 2)^[23] and then that “he kept making me touch his dick and I told him like I kept moving my hand away and he kept doing it”^[24] (count 4).
51. [51]
    The complainant was questioned by police about the defendant “playing with [her] vagina” and replied, “he was sticking fingers, he was sticking his fingers in my [indistinct] and then he was also playing with my clit”,^[25] and although when asked by the police officer “you said he put, he was playing with your clit and he put fingers inside you” she answered “yeah”, the complainant did not explicitly state that the defendant had inserted his fingers in her vagina or vulva.^[26]
52. [52]
    The complainant describes that the defendant “basically grabbed my hand and then forced it onto his dick” and stated further that he “wanted me to give him head and I told him I didn’t want to”.  She then went on to describe him grabbing her wrist, putting it into his pants before he pulled his dick out and forced her to touch it again (count 4).^[27]
53. [53]
    The complainant subsequently describes being drunk and says that the defendant “just basically pulled me on top of him and, yeah, and that’s when like, he started making out with me.  Kissing my mouth and all that” (count 3).^[28]
54. [54]
    The complainant then states that after being forced to touch the defendant’s penis, she wanted to walk off, but “he pulled my clothes off and then he got on top of me, and then he’s tried like, putting his dick in me.  In my vagina.  And then I tried pushing him, but he was, like, too strong” (count 5).^[29]
55. [55]
    The complainant then describes running off to her cousins telling them that she didn’t feel comfortable and says that “they told me to go back”, telling her that the defendant “was my soul mate” which she disagreed with.^[30]
56. [56]
    The complainant described that on the first time that they were at “the basketball area”, the defendant “started taking my shorts off” and “pulling them down” and further “that’s when he would open my legs and then he forced his dick into me”.^[31]
57. [57]
    The complainant identifies that the defendant “wasn’t able to take her shorts and underwear off because of her shoes”^[32] but says that the defendant was “in between my legs”.^[33]  She then says that she “just let it happen” even though she was “pushing him away” and he “would still try and put his dick in me” and “that’s when I gave up”.^[34]
58. [58]
    The complainant describes the defendant as getting “tired” and that was when she put her clothes on and went up to find her cousins.^[35]
59. [59]
    The complainant then describes that the defendant was standing and she was sitting and he was shoving his penis in her.^[36]  She says that this occurred twice at the basketball hoop (an apparent reference to both count 5 and count 6).^[37]  The complainant describes the second time as being basically the same as the first time but that she needed to pee, and “he also took my pants off again”; that he “got into between … my legs again” and “then he forced it into me but he wasn’t able to really succeed”.^[38]
60. [60]
    In respect of the second incident, after some uncertainty as to whether the complainant could remember whether she was wearing her shorts and underwear or was wearing no clothes, she says that the defendant “took them off” and that one (of the shorts and underwear) was on one ankle and was “off another ankle”.^[39]
61. [61]
    The complainant gave evidence before me as a special witness pursuant to EA s. 21A.  During cross-examination, the complainant stated that the defendant “did put [his fingers] in me without my consent”, and then in answer to the very next question, agreed that she had told the prosecutor she couldn’t remember if the defendant’s fingers actually went inside her vagina, then agreed that she was not sure whether his fingers actually went inside her vagina.^[40]  This was confirmed by the prosecutor in re-examination who asked “are you not sure now or you were never sure whether his fingers went inside your vagina?” to which the complainant replied “I was never sure”.^[41]
62. [62]
    In the light of that evidence, it is obvious that the complainant is unsure whether or not digital penetration occurred (count 2 – rape).

Exaggeration

63. [63]
    The complainant in cross-examination accepted that she had exaggerated when she told police that she and her cousins were “drunk out of their heads”;^[42] when she told police that PRO had contacted her on numerous Instagram accounts;^[43] and when she said that the defendant kept “asking her out” and that she said “no” but he kept asking until she said “yes”.^[44]  In cross-examination, the complainant accepted that the Instagram messages^[45] actually demonstrated that on 13 October 2022 (the day after the alleged sexual offending) the defendant asked her “do you think we can meet?” and she replied “if you want, but I don’t want to fuck and shit”.  In cross‑examination, the complainant accepted that it was not the case that the defendant had persisted and kept asking her out until she said “yes”.^[46]
64. [64]
    The obvious exaggeration in these three examples is clearly an issue in considering the reliability and credibility of the evidence of the complainant.

Reliability

65. [65]
    The complainant admitted that she could not remember if she hugged and kissed the defendant^[47] and when presented with the photographs of the dog park she could not say where anything had occurred.^[48]
66. [66]
    The complainant accepted in cross-examination that her memory of the night with the defendant “wasn’t very good” and accepted there were a number of things that she simply couldn’t remember.^[49]

Motive to lie

67. [67]
    The complainant accepted in cross-examination that she ran away from home twice during the week of these allegations and that her mother was asking her to come home and had threatened to ground her which she did not like.^[50]
68. [68]
    The complainant accepted that she was struggling with her mental health at the time of the alleged sexual offences and that when her mother threatened to ground her, it caused her a level of stress.^[51]
69. [69]
    The complainant accepted that she had run away from home before and had got into trouble with her mother.^[52]
70. [70]
    The complainant accepted that when she saw her mother, the first thing she said to her mother was that she had been raped and she couldn’t remember if her mother did ground her.^[53] However, the complainant’s mother CM gave evidence that the complainant was not grounded.^[54]
71. [71]
    The complainant rejected the suggestion that she had made up the complaint of rape to avoid getting into trouble and being grounded by her mother.^[55]

Preliminary complaint evidence

72. [72]
    The preliminary complaint evidence in this trial comes from three witnesses.  The first of those was ZZ.  He said that the complainant “did tell me about being sexually assaulted” and he “told her the right thing to do was go tell police”, although she didn’t tell him any details.^[56]
73. [73]
    The complainant’s mother, CM, spoke to the complainant “on the Saturday” (i.e., 15 October 2022) and was told by the complainant both on the phone and in person “that she’d been raped”.^[57]  The complainant told CM that the person involved was (she believed) 16.^[58]
74. [74]
    Senior Constable Natasha Krause was working the front counter at the Inala Police Station on 17 October 2022 at about 12.30pm.  Relevantly, she was told by the complainant that a person called:

“PRO … started making out with me, touching and kissing me. I didn’t really say anything because I was drunk and felt very uncomfortable. That’s when he started pulling my pants down and trying to put his dick in me. He was strong and pushed me back and has got on top of me. We both were away together.”^[59]

Sexual assault forensic examination

75. [75]
    The admissions relevantly identify that a sexual assault forensic examination occurred on 18 October 2022 at 00:16am, and the complainant declined to participate in a vaginal speculum examination.  During the examination by a sexual assault nurse examiner, there was no visible injury identified to the external genitalia, perineum and perianal areas of the complainant but three small oval shaped bruises, dark brown in colour, were identified on the lower back near the buttocks.  The bruises measured 0.5cm-1.0cm wide and 0.5cm in length.^[60]This evidence is intractably neutral.

Discussion

76. [76]
    The prosecution were unable to call either of the two other persons (the complainant’s cousins BB and FGH) who were present with or in the vicinity of the complainant and defendant throughout the events of the evening of 11-12 October 2022 and, in particular, during the events which commenced firstly at the dog park [redacted], the drinking and other conduct that occurred around that time, through to events which occurred at the basketball court park, before finally returning to McDonalds, walking then to the train station, and catching a train from Inala in the morning of 12 October 2022.  The absence of those witnesses and the intractably neutral effect of the report from the sexual assault examination^[61] has the result that this court, exercising its function as a tribunal of fact, has to be persuaded beyond reasonable doubt as to the complainant’s reliability and credibility, in respect of the counts of sexual assault (counts 1, 3 and 4), digital rape (count 2) and penile rape (counts 5 and 6) in the absence of any objective evidence either from a witness or otherwise, which supports the complainant’s evidence.
77. [77]
    The defendant’s counsel submits that this court would have a reasonable doubt about the complainant’s reliability. As identified in the evidence extracted above, the complainant gave at least three substantially varied accounts to police during the course of her EA s. 93A interview. The first account made no reference to digital penetration of her vagina (count 2), no mention of the defendant making the complainant touch his penis (count 4) and the second incident of penile vaginal penetration (count 6), nor did it mention attending more than one park that evening.
78. [78]
    The second account made no reference to anything sexual occurring in the first park.
79. [79]
    It was only upon detailed questioning by police that, in a piecemeal fashion, the complainant disclosed the factual matrix in respect of each of the indicted and particularised charges.
80. [80]
    The defendant’s counsel also identifies various inconsistencies in the complainant’s evidence.  In particular, in respect of count 2 (digital rape), the complainant accepted in cross-examination (and confirmed in re-examination) that she could not remember if the defendant actually put his fingers in her vagina, and said that she was never sure whether his fingers went inside her vagina.  Clearly, penetration of the vagina or vulva is an element of digital rape, and in those circumstances, it is submitted, the court could not be satisfied beyond reasonable doubt that digital penetration had occurred.
81. [81]
    Further, the defendant’s counsel identifies specific aspects of the complainant exaggerating her evidence, including telling the police that she and her cousins were “quite drunk out of their heads”; claiming that she had been contacted by the defendant on numerous Instagram accounts; and stating that the defendant had persisted in asking her out, when the messages simply demonstrated that the defendant had on one occasion, 13 October 2022, said “do you think we can meet” and she replied “if you want, but I don’t want to fuck and shit”.^[62]
82. [82]
    It is also relevant to observe that the Instagram message exchange on 13 October 2022 is entirely consistent with any previous sexual contact being consensual, while communicating a lack of interest in any further sexual contact.
83. [83]
    The defendant’s counsel also identifies issues with the complainant’s memory, perhaps explicable, of course, by lack of sleep and the consumption of alcohol, including whether the complainant hugged and kissed the defendant; an inability when shown photographs of the dog park to identify where anything occurred; an acceptance that her memory of the relevant night wasn’t very good; and further that there were a number of things the complainant couldn’t remember.
84. [84]
    There is also, I accept, a clear motivation for the complainant to lie. It is incontrovertible that the complainant’s mother CM was threatening to ground the complainant if she didn’t come home, having run away from home twice during the week of the allegations. In addition there was evidence that the complainant had been using drugs; had been taken to hospital a week prior to the events the subject of these charges; and had attended school on Monday and Tuesday (10 and 11 October 2022) but had then run away from home.  The complainant accepted that she was struggling with her mental health at the relevant time, was stressed by her mother’s threats to ground her, had previously run away from home and gotten into trouble for doing so, and (as her mother CM’s evidence indicates) was not grounded on this occasion when she told her mother that she had been raped.
85. [85]
    Further, the defendant’s counsel submits that there is an inherent unlikelihood in the offending subject of each of the counts (and particularly counts 2-6) having taken place without anyone having seen the acts occurring.  In cross-examination, the complainant accepted that the first act of vaginal intercourse took place in close proximity to her cousins BB and FGH, and the second act of vaginal intercourse (count 6) is said to have occurred when, according to the complainant, her cousins were about five metres away behind some trees. 
86. [86]
    Of course, the absence of each of the potential witnesses FGH and BB means that it is only the complainant’s evidence as to their presence (rather than any evidence from them) which is available to be tested. 
87. [87]
    The defendant’s counsel identifies various aspects of the evidence which are inconsistent with the complainant’s account that she had been raped on three occasions and sexually assaulted on three other occasions. The complainant alleges that she was first sexually assaulted by the defendant at the dog park but continued spending time with him subsequently.^[63]  The complainant gave evidence that she went to McDonalds after the first act of penile penetration and made no attempt to call her mother, to seek help from McDonalds employees or to otherwise report the alleged rape.^[64]
88. [88]
    The complainant gave evidence that despite being raped twice by the defendant, she let her 13-year-old cousin FGH spend time alone with the defendant while she walked ahead with her cousin BB on the road back to McDonalds.  She accepted that her cousin FGH looked up to her.^[65]
89. [89]
    The complainant accepted that despite being raped twice, she walked to the train station with her cousins BB and FGH and the defendant, fell asleep at the train station with the defendant, and then fell asleep on the train near the defendant and FGH.^[66]
90. [90]
    The complainant accepted that about three hours after last seeing the defendant on the train, he messaged her saying “Hi. Are you ok” and she replied “yeah I’m good”.^[67]
91. [91]
    On 13 October 2022, (the day after the alleged offending), the complainant agreed to meet up with the defendant again.^[68]
92. [92]
    The complainant accepted that the day before her mother picked her up from the Altandi railway station, she was in Brisbane city with her cousin FGH, and saw FGH’s mother but did not tell her that she or FGH had been assaulted or raped by the defendant nor did she ask FGH’s mother to call the complainant’s mother.^[69]
93. [93]
    I accept that the preliminary complaint witnesses provide very little detail of the alleged sexual offending by the defendant against the complainant, and consequently provide little support to bolster the complainant’s credibility.
94. [94]
    Although the evidence of the witness AA was not preliminary complaint evidence (she was unable to identify when she had a conversation with the complainant relative to the complainant making her formal police statement), AA’s recollection was that the complainant told her that “some guy named PRO raped her, and it happened, like at someone’s house” in Inala.^[70]That version of events is clearly a prior inconsistent statement by the complainant about key circumstances of the alleged offending.
95. [95]
    It is trite to state that for the defendant to be convicted of any of the counts on the indictment, this court must be satisfied of the complainant’s evidence, beyond reasonable doubt, in respect of each of the offences.
96. [96]
    In accordance with the Markuleski direction, if I have a doubt as to the complainant’s evidence in respect of one or more counts, that not only goes to her evidence generally, but must be considered in respect of each of the other counts on the indictment.
97. [97]
    In my view, there are clear doubts that arise as to the circumstances of the defendant touching the complainant’s breasts (count 1 – sexual assault), in particular, at which of the two parks and at what point in the sequence of the alleged offending that occurred. Those doubts arise from the differing and confused accounts given by the complainant in the three differing versions provided in her EA s. 93A statement.
98. [98]
    The complainant is clearly unsure whether or not the defendant penetrated her vulva or vagina with his fingers (count 2).  That raises an obvious doubt in respect of the elements of count 2 (rape).
99. [99]
    The complainant’s initial version of events given to police at the commencement of her EA s. 93A interview make no reference to the defendant penetrating her vagina with his fingers (count 2); the defendant making the complainant touch his penis with her hand (count 4); and the second alleged event of penetration of the complainant’s vagina with his penis (count 6).
100. [100]
     Further, the description by the complainant of the first incident of penile vaginal penetration (count 5) describes that as occurring on one of the steps at the basketball court, while she had her shorts and underwear at her ankles, but not taken off her legs because of her shoes.  With respect, that appears, in the circumstances, as a matter of common sense, to be anatomically impossible.  This observation must necessarily lead to a doubt by the court as to the reliability of the complainant’s evidence in respect of count 5 (rape).
101. [101]
     In my view, there is nothing in the complainant’s actions immediately subsequent to the alleged offences occurring, whether at McDonalds, the train station, on the train subsequently with the defendant, in her subsequent communications with the defendant by Instagram, nor in her communications with any other person, other than her discussion with the witness ZZ (the timing of which is impossible to identify other than it occurred before the first formal complaint to police), before a complaint of rape is made to the complainant’s mother on or about 15 October 2022, and then subsequently to the police officer at the front desk of the Inala Police Station on 17 October 2022, which is consistent with or supports her evidence that she was sexually assaulted and/or raped on 12 October 2022. 
102. [102]
     I accept that there is no rule book as to how the alleged victim of sexual offending should behave subsequent to the alleged events occurring, but for a defendant to be convicted, the tribunal of fact must be persuaded, beyond reasonable doubt, as to both the credibility and reliability of the complainant’s account, considered separately in respect of each of the counts.
103. [103]
     Factually, in the absence of any objective evidence to support the complainant’s version of events, I am unable to be satisfied beyond reasonable doubt as to what, if any sexual interactions occurred between the complainant and the defendant; and, even if all or some of those sexual interactions occurred as the complainant has described them, whether they were done without the complainant’s consent. 
104. [104]
     I have identified in these reasons the various specific issues in respect of a number of the counts, and I consider that those identified concerns not only affect my assessment of the complainant’s credibility and reliability in respect of those particular counts, but clearly lead to the court having a reasonable doubt in respect of the complainant’s evidence generally in relation to all counts.  It follows that I am unable to accept the complainant’s evidence as being credible and reliable, to the required standard of beyond reasonable doubt, in respect of each of counts 1-6.  Accordingly, I conclude that the defendant should be found not guilty of each of those counts.

Verdict

105. [105]
     I find the defendant not guilty in respect of each of counts 1, 3 and 4 (sexual assault) and counts 2, 5 and 6 (rape).