R v KRL[2009] QDC 346

DISTRICT COURT OF QUEENSLAND

[1] HIS HONOUR:  These are my reasons for judgment in respect of the matter of KRL.  The defendant, KRL, is a juvenile and pursuant to Juvenile Justices Act s. 103(5),  has elected to be tried before a Children's Court Judge sitting without a jury. 

[2] The defendant has entered pleas of not guilty to the following counts:

1. Count 1.  That on the 23rd day of September 2008 at Murgon or elsewhere in the State of Queensland, KRL unlawfully and indecently dealt with CA, a child under 16 years and CA was under 12 years.
2. Count 2.  That on the 23rd day of September 2008 at Murgon or elsewhere in the State of Queensland, KRL unlawfully exposed CA, a child under the age of 16 years to an indecent act by KRL and CA was under 12 years.

[3] In respect of Count 1, the onus of proof is on the prosecution, beyond reasonable doubt, to prove the following:

1. The defendant dealt with the complainant.  The term "deals with" includes a touching of the child.  It does not have to be a touching of the child by the defendant's hand - it can be a touching of the child by any part of the defendant's body.
2. The dealing was indecent.  The word, "indecent" bears its ordinary every day meaning, that 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.
3. The dealing was unlawful.  Unlawful means not justified, authorised or excused by law.
4. The complainant was under 16 years.
5. The complainant was under 12 years.

[4] In respect of Count 2, the onus of proof, similarly, is on the prosecution, beyond reasonable doubt, to prove:

1. The defendant wilfully and unlawfully exposed a child.

The word, "wilfully" means that the defendant deliberately or intentionally exposed the child to the indecent act.

"Unlawfully" means not justified, authorised or excused by law.

"Exposed" will usually mean showed.

2. To an indecent act by the defendant. 

"Indecent" bears its ordinary every day meaning, that 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. 

3. The complainant was under 16 years.
4. The complainant was under 12 years.

The Evidence

[5] Evidence was given by the complainant child, CA, born 2 April 2002, by way of a s 93A Evidence Act video interview with PCSC Pascoe on 1 October 2008 (Exhibit 1 and amended transcript, Exhibit 6) and pre-recorded evidence taken before me in the Kingaroy District Court on 8 October 2009 (Exhibit "D"). 

[6] Evidence was given by the complainant child's brother, CR, born 16 March 2001, by way of an s 93A video interview with PCSC Pascoe on 2 October 2008 (Exhibit 2 and amended transcript, Exhibit 7) and pre-recorded evidence taken before me in the Kingaroy District Court on 8 October 2009 (Exhibit "D").

[7] Oral evidence was given by PCSC Adam Pascoe (the investigating officer), and Ms CL, the complainant's mother. 

[8] Pursuant to Criminal Code s 644, the evidence of two Blue Care workers, Karien Bowden and Anita Lazzaroni, was placed before the Court by way of an agreed statement of facts (Exhibit 5).  A diagram of where the children were sitting during the bus trips to and from the farm (during which trips the offences were allegedly committed), prepared by one of the Blue Care workers (unspecified) is Exhibit 4.  Four photographs of the bus, which appears to have eight seats in the rear plus a driver's seat and front passenger seat, constitute Exhibits 3A-D. 

[9] The defendant child elected neither to give nor call evidence.  That is, of course, his right and he assumes no onus as a result. 

Directions

[10] The only direct evidence of the offences comes from the complainant child.  I must therefore assess her reliability and credibility carefully. 

[11] The complainant child's evidence and CR's evidence came before the court by way of s. 93A statements, and pre-recorded video evidence. 

[12] I direct myself in accordance with Evidence Act s. 21AW(2), namely, that I draw no inference as to the defendant's guilt because that evidence was received in that way; and the probative value of the evidence is not increased or decreased, i.e. the evidence is not to be given any greater or lesser weight because of the measure (see, for example, R v. Ferguson [2009] QDC 49, para 47).

[13] The transcripts, in particular in respect of the s. 93A tapes, were particularly unreliable.  I relied on what I saw and heard on the tapes as evidence, and I acknowledge the enormous assistance of both Ms Brisick for the prosecution and Mr Fong for the defence in assisting me to interpret (and appropriately amend) the transcripts of the s. 93A tapes.

[14] The evidence of preliminary complaint from Ms CL may only be used as it relates to the complainant's credibility.  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 offence, and what the complainant said as reported by the preliminary complaint witness, is something I may take into account as possibly enhancing the likelihood that the complainant's testimony is true.  Of course, I may also take into account any inconsistencies between the account given by the complaint witness and the account as given by the complainant in assessing the complainant's credibility.  In this case, it is of particular relevance that there was no account at all from the complainant as to what she told her mother (if anything), only her mother, Ms CL's, evidence of those several occasions.

[15] I cannot, however, regard the things said in the out of court statements by the complaint witness (I note there were no out of court statements by the complainant) as proof of what (if anything) actually happened.  In other words, evidence of what was said on that occasion to the preliminary complaint witness, Ms CL, may, depending on the view I take of it, bolster the complainant's credit because of consistency, but it does not independently prove anything (see, for example, R v. Ferguson [2009] QCA 49, paras 29 and 30).

[16] In the circumstances of this matter, I should also direct myself in accordance with the "Markuleski direction" which is as follows:  If I have a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, whether by reference to her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.

[17] My general assessment of the complainant as a witness will be relevant to all counts, but I will have to consider her evidence in respect of each count when considering that count.  Now, it may occur that, in respect of one or more of the counts, that for some reason I am not sufficiently confident of her evidence to convict in respect of that count or counts, a situation may arise where in relation to a particular count I get to the point where I have some reasonable doubt about an element or elements of that particular offence.  Now, if that occurs, of course, I find the defendant not guilty in relation to that count, that does not necessarily mean I cannot convict of any other count.  I have to consider why I have some reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence, that is, whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to any other count.

[18] I note that there are two counts on the indictment and, of course, I must consider the evidence in respect of each count separately, taking into account the Markuleski direction, which I've just outlined.

Particulars: 

[19] Both counts are alleged to have occurred while the complainant and the defendant were on a Blue Care bus driving to and from a farm on an outing.

[20] Count 1 is alleged to have occurred when the defendant reached under the complainant's skirt and touched her on the vagina on the outside of her underwear.

[21] Count 2 is alleged to have occurred when the defendant pulled down his pants and showed the complainant his underwear through which she could see an erect penis.

[22] In respect of each of the counts, I consider that if the prosecution satisfies me beyond reasonable doubt that the relevant events occurred, as stated by the complainant, then each of the elements of each of the counts would be satisfied.

[23] In respect of count 1, I consider that the touching of the complainant's vagina, when she was aged six, if it occurred as described, to the requisite standard of proof, amounts to an indecent deal with a child under 16, under 12.

[24] In respect of count 2, I consider that exposing a child, then aged six, to an obviously erect penis, albeit beneath underpants, deliberately, would, if proved to the requisite standard beyond reasonable doubt, be an indecent act, and to a child in these circumstances who was under 16 and under 12.

[25] The issue clearly, as I've outlined, is whether the complainant can be accepted beyond reasonable doubt as a credible and reliable witness in respect of the events to which she has given evidence and which ground the allegations particularised in counts 1 and 2.

Assessment of the Evidence:

[26] It is convenient to deal firstly with count 2. 

[27] The only evidence in respect of this count came at Exhibit 6, page 16, line 48 and following.  However, that evidence was preceded by the following questions and answers (I note that Exhibit 6 is the corrected transcript of the s. 93A interview between police officer Pascoe and the complainant child on 1 October 2008):

"CONSTABLE PASCOE:  Mm, and anything else?

CA:  No.

CONSTABLE PASCOE:  No, is there anything that you've forgotten?

CA:  No.

CONSTABLE PASCOE:  No, did he do any other rude things to you?

CA:  No."

PCSC Pascoe then asked the following question:  "No, okay, did KRL show you his private parts at all?

CA:  He did."

[28] I can only infer that PCSC Pascoe had some information from Ms CL (the complainant's mother and complaint witness in these proceedings), however, the evidence which then follows (Exhibit 6 pp.17-18) clearly results from an impermissible leading question by PCSC Pascoe in the light of a specific disavowal by the complainant child, CA, that "no … other rude things" had been done to her by the defendant.

[29] CA did give evidence at the pre-record (Exhibit D, T2‑9) which was, in any event, significantly inconsistent with her s. 93A evidence (Exhibit D, T2-9, ll.19-23). That evidence, for the record, was as follows:

"MR FONG:  What were you doing?

CA:  It was - well, he actually pulled down his shorts and said, 'Look at my penis.'

MR FONG:  Oh, okay.

CA:  Then he said, 'It looks like a stick sticking up.'"

[30] I note further that the complainant gave evidence that the defendant was wearing long pants when questioned in her s. 93A statement about this (Exhibit 6 p.11), but said in the pre-record that he had short pants (Exhibit D, T2-10).  The complainant said the defendant was wearing "army colours" undies in the s. 93A statement (Exhibit 6 p.17), but in the pre-record she gave evidence that he was wearing "light blue undies" (Exhibit D, T2-10).

[31] Although Ms CL gave evidence of a complaint made to her by the complainant in broadly similar terms to the allegations in count 2, there is no evidence as to what the complainant child said, if anything, that she told her mother Ms CL.  The complaint evidence, in my view, is of little assistance to me in terms either of consistency or credibility in relation to the complainant's evidence.

[32] I do not consider that the prosecution has proved count 2 beyond reasonable doubt, and I find the defendant not guilty of count 2.

[33] In considering count 1, it is clear that, in accordance with the Markuleski Direction that I have given myself, the doubts I have just outlined which led to me finding the defendant not guilty in respect of count 2, are also clearly referable to the complainant's evidence in respect of count 1 which must of course be considered separately but in line with the Markuleski Direction.

[34] The child CR gave evidence that he was present either next to or near the complainant on the bus trips to and from the farm.  His evidence is that he saw and heard nothing, and this is directly referable to the allegations in respect of count 1.

[35] The two Blue Care workers, Ms Karien Bowden and Ms Anita Lazzaroni, also saw nothing referable to the allegations in count 1 (see Exhibit 5) or for that matter in respect of count 2.

[36] The key portion of the allegation in respect of count 1 came in response to another inadmissible leading question from PCSC Pascoe in the s. 93A video statement (Exhibit 6 p.13 l.43).  That exchange went as follows: -

"PCSC PASCOE:  Okay.  Did his hand go under your skirt?

CA:  Yes."

[37] The complainant states that the allegations in respect of count 2 were "before Mount Wooroolin", but it's unclear (and I have reviewed the evidence as best as possible) whether CA is stating that the Mount Wooroolin part of the trip was before or after the visit to the farm.  I note that her response to PCSC Pascoe at Exhibit 6 p.18 l.59, when he asked "Had you left the farm long?" was "No", which would lead me to infer that the offence as alleged occurred on the trip back from the farm.  However, in contradiction, in the pre-record (Exhibit D, T2-13) CA explicitly states that the allegations constituting the offence occurred "on the way to the farm".

[38] The attempts by PCSC Pascoe to clarify and summarise the complainant's evidence at Exhibit 6 pp.19-21 (the concluding period of the s. 93A statement) were most unsatisfactory.  The complainant's attention span had, by this time, clearly expired completely and the interview, in my view, should have been suspended at that stage and either recommenced later on that day or perhaps continued on a subsequent day.  I note that the pre-record in this Court suffered the same problems.  We were unavoidably delayed in seeking to take evidence from the complainant child, and by the time she came to give evidence, it was clear that her attention span had expired and it was necessary to reschedule the date on which her pre-recorded evidence was to be taken.

[39] The complainant child was six years old at the time of the alleged events, in Grade 1, and (see the evidence of Ms CL) suffers from Asperger's Syndrome, with deficits in social and cognitive functioning, despite having a very high IQ.

[40] Applying carefully all of the directions that I am obliged to give myself and which I have outlined above, in particular the Markuleski Direction, and my finding of not guilty in relation to count 2; taking account of the various inconsistencies in the complainant's evidence which I have identified; taking account of the complete lack of supporting evidence (particularly from CR, and Karien Bowden and Anita Lazzaroni, all of whom were in very close physical proximity in a small bus when the events were alleged to have occurred), I am not persuaded beyond reasonable doubt that the defendant touched the complainant on the complainant's vagina on the outside of her underpants as alleged.

[41] Accordingly, I find the defendant not guilty in respect of count 1.

[42] The defendant is discharged in respect of both counts on the indictment.