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- Unreported Judgment
R v PAS QDC 213
DISTRICT COURT OF QUEENSLAND
R v PAS  QDC 213
Indictment No. 135 of 2019
District Court of Queensland
29 October 2019
28 & 29 October 2019
Morzone QC DCJ
CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – rape – elected a trial to a judge sitting without a jury – verdict not guilty.
Criminal Code 1899 (Qld), ss 349
Papakosmas v The Queen (1999) 196 CLR 297
R v E (1995) 89 A Crim R 325 at 330
R v AW  QCA 152; R v Foster  QCA 226
R v NM  1 Qd R 374; R v PAS  QCA 289
R v Van Der Zyden  2 Qd R 568
R v LSS  1 Qd R 546
R v RH  1 Qd R 180
J Crane for the Crown
J Trevino for the Defendant
Office of the Director of Child Protection for the Crown
Legal Aid Queensland for the Defendant
- The defendant is charged with, and pleaded not guilty, to the offence of rape.
- The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury.
- The burden rests on the Crown 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 Crown to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt every element that goes to make up the offence charged and similarly exclude any possible defence.
- Section 349 of the Criminal Code provides for the offence of Rape, relevantly here, as follows:
- Any person who rapes another person is guilty of a crime.
Penalty: Maximum penalty—life imprisonment.
- A person rapes another person if—
- the person has carnal knowledge with or of the other person without the other person’s consent; or
- For this section, a child under the age of 12 years is incapable of giving consent. …”
- There is no dispute that the complaint was born on 28 February 2010 and 6 years old between 9 February 2016 and 17 September 2016. Therefore, consent is not in issue.
- The determinative issue is whether the Crown has satisfied me beyond reasonable doubt that the defendant had carnal knowledge of the complainant. Carnal knowledge means the insertion of the defendant’s penis into the genitalia of the complainant. Penetration to the slightest degree is sufficient and ejaculation is not necessary.
- Since there is a single charge, I will evaluate the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the Crown has proved its essential elements. Any doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to the count, will be taken into account in assessing the truthfulness or reliability of her evidence generally. Further, if there is an inference reasonably open which 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 will only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in my mind.
- The Crown has led evidence of other alleged incidents of sexual conduct to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it.
- The Crown points to several incidents which occurred on 29 August 2016 when the defendant was at home with the three children for whom his partner and he were responsible as foster parents. By way of summary, on that day the defendant used his mobile phone took photos of the complainant’s vagina, he took a video and a photo of the complaint urinating on the toilet, he took a separate video of him penetrating the complainant’s vagina with a purple sex toy and a video of him licking her vagina.
- The evidence comprises of the defendant’s own confessions during the police search and interview, images and videos recorded by the defendant, undisputed facts founding the defendant’s plea to the offending conduct and sentence on 8 September 2017, formal admissions in this case, and relationship evidence. This uncontested evidence was adduced during the course of the trial, including the recordings of the police interviews. I was also aided by transcripts at the time the recordings were played, appreciating that the evidence is comprised in the recordings not in the words attributed by the author of the transcript.
- During an audio recording of the police search of 23 September 2016, the defendant was asked about one occasion with the defendant recorded a 20 second video using his mobile phone of the 6 year old complaint child’s genitals at a time when the child was “mucking around”, wearing a school uniform, laying on a bed and exposed “herself”, and showing affection towards the defendant. The defendant explained that he knelt beside her and moved her legs to help her expose herself by moving her pants aside or “something like that”, and touched around the child’s vagina. He conceded in the interview with police that there was no medical or other legitimate reason for the conduct. He attributes his conduct to being “stupid” that day. He also conceded that her conduct was to “some degree” misunderstood her conduct as being “not so much sexual advances, but just loving advances …”, and should have stopped the conduct. The defendant estimated that he was with the child in the bedroom for about “10 minutes” although he could not account for much other conduct in that time.
- He also accepted that on the same day he used his mobile phone to record an image of the child sitting on the toilet to have a “pee”, with particular focus on her genital area. During an audio recorded police interview of 23 September 2016, the defendant agreed that there was no medical or other legitimate reason for the conduct. He again attributed his conduct to being “very stupid” that day.
- And further, he accepted that on the same day he used his mobile phone to record other “snap shots” whilst sitting on his lap in a green armchair in the lounge room. Further during an audio recorded police interview of 23 September 2016, the defendant recalled asking the child to see her vagina, and either she or the defendant pulled her underwear aside to show him her vagina when he took two “snap shots”. The defendant accepted that the images depicted the child sitting on the lounge facing towards the defendant with her legs open and her vagina exposed.
- He also asserted during the interview that he was not sexually aroused by the conduct, but did so by reference to his impaired capacity to achieve an erection. At one point saying: “I don’t think I got, no, I wouldn’t say sexually aroused. I didn’t get a hard on from doing it, no”. Later, when he “thinks” he later looked at the 20 second video, he still denied any arousal or sexual interest.
- In a second police interview video recorded on 26 September 2016, the defendant was questioned about an image on his phone depicting a purple “dildo” sex toy inserted into the child’s vagina. The defendant had no recollection of such an occasion, but did relay occasions when the child had found the toy, and he recalled one occasion when he took a 25 second clip of the child masturbating herself with the toy while lying on the bed. He described the toy and how the child was looking at him at the time. He could not recall taking hold of the toy himself, but said he touched her thighs with his hands and kissed her thighs. He had no recollection of touching the child on the vagina, but “might have … would have been around the vagina”. The defendant did not recall performing oral sex on the child as depicted in a video, but did recall kissing in the area, and “maybe kissed” her vagina, or “tickling it down there or something”. He described and motioned that he “might have” touched the child’s vagina with his chin area. Further, in the second police interview on 26 September 2016, the defendant spoke about using his mobile phone to record a 10 second video of the child urinating in the toilet after following her there from the lounge room. He later deleted the clip from the phone.
- In relation to taking the photos, tickling the child’s vagina and kissing her thighs, the defendant was asked in the second interview whether he got any “sexual gratification” from the conduct, he again answered in the context of a physical arousal. saying: “not really, no not – not like I didn’t get a hard on or anything like that, no. I was very curious you know …”.
- It seems to me that the evidence of earlier sexual conduct relied upon by the prosecution plainly proves that the defendant had a sexual interest in the complainant and was prepared to act upon it. In that way, the evidence makes it more likely that the defendant committed the charged offences as against that particular complainant.
- I only use this other evidence of sexual interest because I am so satisfied beyond reasonable doubt that the defendant did act as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant that he was willing to pursue. Of course, even though I accept that those other acts occurred, and also that conduct demonstrates a sexual interest of the defendant in the complainant, it does not automatically follow that the defendant is guilty of the offence of rape in this case. I must still decide whether, having regard to the whole of the evidence, the offence has been proved to my satisfaction beyond reasonable doubt.
- The Crown also relies on relationship evidence of the defendant’s partner, PC, as it relates to sexual interest. She testified that she and the defendant were foster parents of the complainant and her five and six year old siblings. She briefly described her relationship with the defendant as including sexual intercourse, but explained that at an earlier time the defendant’s weight management medication impacted his capacity to maintain an erection. She also described how the complainant tended to latch onto the defendant, as did her siblings. She recalled the complainant remarking that she was “going to marry” the defendant. Otherwise, it was a “normal family environment” and she saw no behaviour that set off “alarm bells”. PC described that their induction with the complainant included sexual behaviour, and she had seen the child “flashing” by throwing her skirt up. She also recalled two specific incidents in 2016. On one occasion the child played with herself by inserting her fingers into vagina and went to wipe it onto her sister, and on another occasion at a church christening when the child lifted her skirt and played with herself. In the defendants recorded police interviews, the defendant also described the complainant child often “exposing herself” and “flashing” and “peeing in the bath”. PC reported these matters to the relevant person in the Department of Child Safety.
- Having been satisfied that these other acts occurred, they also assist in my understanding of the background to the incident subject of the alleged offence perhaps tantalising the defendant in the nature of sexual interest. However, I do not infer merely from their occurrence that the defendant did the things with which he is charged now. I must still decide whether, having regard to the whole of the evidence, the charged offence of rape has been proved to my satisfaction beyond reasonable doubt.
Defendant not give or call evidence
- The defendant was not obliged to give evidence, or call witnesses to testify or otherwise produce evidence. That does not shift any evidentiary burden to him. The Crown retains the burden of proving each of the elements of the offence beyond reasonable doubt, having regard to the whole of the evidence.
- This is a case often described as one of “word against word”. 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. If his evidence is found credible and reliable so that it provides a satisfying answer to the Crown’s case, he ought be acquitted. Similarly, he should be acquitted if his evidence is found unconvincing yet I’m left with reasonable doubt.
- The defendant participated in a further video recorded police interview held at the police station on 17 June 2018 when the current allegations were put to him. He denied exposing his penis to the child at a time she had pulled her underpants aside, while the other children were asleep. And he denied inserting his penis into the child’s vagina at that time or any time. He added that he was impotent at the relevant time due to a medical problem.
- I have considered evidence of the preliminary complaint for the limited purpose of assessing consistency or inconsistency of the complainant’s statement or conduct to buttress, or otherwise, the complainant’s credibility about the commission of the offence, but it has no probative value or capacity to independently prove anything.
- For this limited purpose I compare the evidence of PC of when she spoke with the complainant in the afternoon of 12 February 2018. She recalled that the child had brought home a book on human anatomy. She asked the complainant why she chose that book and asked about possible aspirations of being a doctor, to which she replied “no”; but she went on to talk about discussions with her school friend. PC recalled that the complainant “pretty much said that Shane had put his privates in her down there”, and then the complainant clarified saying that “he put his penis in her vagina”. The complainant had learned the correct anatomical terms from counselling.
- Although devoid of detail or temporal context, the complaint is comparatively generally consistent with the complainant’s evidence summarised below, and it is also commensurate with her age and maturity. Even so, mere absence of detail does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency in detail is to be expected, because it is natural enough for a child who is asked on different occasions to repeat what happened at an earlier time, to tell a slightly different version each time, and likewise for recipients of a complaint to relay slightly different versions drawing on recollection.
- After conducting a search on 21 September 2016 and seizing inculpatory evidence of the defendant’s other offending conduct, police first spoke to the complainant on 22 September 2016, but she made no disclosures of any sexual offences being committed against her. After conducting a further search on 23 September 2016 and seizing more evidence of the defendant’s other offending conduct, the complainant still made no disclosures when police spoke with her on 25 September 2016.
- Police were notified of a further complaint on 15 February 2018, and the complainant participated in a third interview with police on 18 February 2018. Her recorded conversation with the police of 18 February 2018 was played during the course of the trial. I also received a copy of the transcript as an aide only.
- At that time the complainant gave 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 was unable to see the defendant who was present in the court room at the time. The court was closed during the recorded evidence in the trial. All of these measures, used for taking and showing of the complainant’s evidence were in accordance with the standard and routine procedures of the court, and I assess this evidence in the same way as the other evidence in the case.
- During the recorded police interview of 18 February 2018, the complainant child seemed relaxed, and gave answers to the questions in an understandable way, but was initially coy and unresponsive to questions about the reasons for her attending at the interview. She was very hesitant with long pauses, which prompted the female officer inviting the male officer to leave the room. She was then eight, nearly nine years old at the time. Shortly after the male officer left the interview room, child with further prompting recalled telling PC about the defendant - “That he did bad stuff to me” and that “he put his private in my private part”. Placing the event as happening when she was “five”.
- Later, she described that the defendant’s private part went inside the “middle” of her private part. With further prompting, the complainant identified the location as being in the lounge room at night when others were in bed. The complainant equated her use of her “private part” to “pee” in the toilet from the middle of her legs, and also called it a “vagina”.
- I accept that the child was referring to her genitalia.
- She also identified the defendant’s private part as being “between his legs”, and called it a “penis”. She said she saw the defendant’s private part. After being unable to describe the defendant’s penis at an earlier point, she later described it as - “two circles on the top and a part that’s sticking out” and “a rectangle that curved … on the end”. The police officer offered a description of a “hole or a dot”, and the child affirmed it was a “dot” … “like on the end”.
- It seems to me that that the child was, in a childlike way, describing the defendant’s penis and scrotum. Her observations may have been hindered by poor light, or earlier, recollection since at one stage of the interview she said the lounge room lights were “off”, but when asked whether other were lights on, she answered: “one” … “in the lounge room”.
- The complainant also described the offending conduct this way. She said that she was sitting on the couch as the defendant was standing in front of her. She had her pyjama shirt on but her shorts and underwear were off and next to her. She recalled that the defendant asked: “Just take your shorts off” and “I just took them off normal”. She also described that the defendant had taken his shorts off, which were on the couch next to her, but he left his shirt on. She described that she felt the defendant’s private part in her private part. At one stage she answered (I think as an accidental innocent slip) to the effect that the defendant put his penis “over my cloths” and then corrected to “under my clothes”. When asked “which part of his private part went inside your private part?”, she said “the middle”, which I interpret to being a reference to the defendant’s penis shaft in the middle part of his genital area above the scrotum. She described that that part felt “soft”, and later said it was “weird”. She said later she described the defendant “just um shaking it”, “making it shake” and he “put it up and down”, and going “in the place up the middle”. She could not remember how far the defendant penetrated, or how long it took, or how it finished.
- It seems to me that the child was describing a flaccid penis, which is consistent with the defendant’s testimony of impotence, and that the defendant manually handled his penis in a shaking manner. Further, his conduct was likely untoward in his flaccid state. However, I am left with considerable doubt about the mechanism of the offending conduct and penetration to any extent.
- During cross-examination, the complainant elaborated that she was so positioned by sitting on the cushioned seat of the couch with her back against the back of the couch and with her legs stretched over the edge of the coach. In re-examination she described that her knees were bent over the front of the couch.
- Having regard to the dimensions of the couch as I glean for the photograph Exhibit 11, the child’s legs could not have been bent from the knees over the front edge of the seat. While I accept that her legs could have been bent and her legs extended beyond the seat, it seems to me that her description of penetration was implausible. The seat of the couch was at a convention height, equating to about standing knee height not at genital region. In my opinion the child’s description of how she sat on the couch, and the defendant’s standing size, stature and position, render the mechanism of the alleged penetrative conduct physically impossible. The defendant would not have been physically able to contort his body or otherwise position himself to effect penile penetration of the child’s vagina in the way contended.
- I am left with a reasonable doubt the alleged conduct and penetration to any extent.
- For these reasons, since I am left in a reasonable doubt as to penile penetration and the mechanism of the alleged offending, I am bound to find the defendant not guilty.
- The defendant is therefore discharged in respect of count 1, rape, in the indictment.
Judge D P Morzone DCJ
 Exhibits 1 & 2.
 Exhibits 3, 4, 5 & 6.
 Exhibit 7.
 Exhibit 8.
 Cf. R v E (1995) 89 A Crim R 325 at 330 per Hunt CJ.
 R v AW  QCA 152; R v Foster  QCA 226.
 R v NM  1 Qd R 374; R v PAS  QCA 289.
 Criminal Law (Sexual Offences) Act 1978, s 4A; R v Van Der Zyden  2 Qd R 568; R v LSS  1 Qd R 546; Papakosmas v The Queen (1999) 196 CLR 297; R v RH  1 Qd R 180.
 Evidence Act 1977 (Qld), ss 93A & 102.
 Evidence Act 1977 (Qld), s 21A.
 Evidence Act 1977 (Qld), s 21A.
- Published Case Name:
R v PAS
- Shortened Case Name:
R v PAS
 QDC 213
29 Oct 2019