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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v Kelly  QDC 116
JAMES WILLIAM KELLY
12 June 2020
2 and 3 June 2020
Barlow QC DCJ
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – GENERALLY – defendant charged with one count of rape – whether the Crown has proved beyond reasonable doubt that the defendant raped the complainant
CRIMINAL LAW – PROCEDURE – VERDICT – ALTERNATIVE VERDICTS – defendant charged with one count of rape – no alternative count charged – consideration of whether the defendant guilty of an alternative charge
Criminal Code Act 1899 s 210, s 349, s 578, s 615B, s 615C
E Kelso for the Crown
J Goldie for the Defendant
Office of the Director of Public Prosecutions for the Crown
Phillip Crook Lawyers for the Defendant
Elements of the alleged offence
The complainant’s evidence
The police interview
Evidence in court
Other Crown evidence
Defendant not giving evidence
Factors relevant to the complainant’s credit
Delay in making complaint
Consideration of the issues
Circumstances of the incident
The defendant’s comment
When the incident occurred
The argument and the timing
No grooming or secrecy
Conclusion and verdict
- The defendant is charged that, on an unknown date between 1 January 2013 and 1 January 2016, he raped the complainant. Between those dates, the complainant was between six and nine years old.
- On 1 May 2020, an order was made, pursuant to s 615 of the Criminal Code Act 1899 (the Code), that the defendant be tried by a judge sitting without a jury.
- The defendant has pleaded not guilty. I have conducted the trial. It is my role to determine on the evidence whether the defendant is guilty or not guilty.
- In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial by jury. If statute or the common law requires that information, a warning or an instruction be given to a jury, the judge in a trial by a judge sitting without a jury must take that requirement into account if it is relevant to the trial.
- In reaching a verdict, the judge may make any finding or give any verdict that a jury could have made or given, if the trial had been before a jury. Any finding made or verdict given by the judge has the same effect as a finding or verdict of a jury. The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact relied upon.
- A defendant in a criminal trial is presumed to be innocent. The Crown has the burden of proving, beyond reasonable doubt, the defendant’s guilt of the offence charged. Before I may find the defendant guilty, the Crown must satisfy me, beyond reasonable doubt, of all the essential elements of the offence.
- In conducting the trial and in considering the verdict, I also adopt, with respect, the principles set out by Smith DCJA in R v MMH  QDC 70 at .
- I must reach my verdict only on the evidence presented in court. The evidence comprises what the witnesses said from the witness box or by video link or in a video tape admitted into evidence and any other exhibits. Nothing else is evidence.
Elements of the alleged offence
- In order to convict the defendant of the rape alleged in this case, the Crown must prove, beyond reasonable doubt, all the following facts.
- (a)The defendant penetrated the vulva or vagina of the complainant to any extent.
Any degree of penetration of her genitalia is sufficient and it need not be penetration of her actual vagina.
- (b)With a part of the defendant’s body that is not a penis.
The Crown alleges that the defendant did so with his finger.
- (c)Without the consent of the other person.
A child under the age of 12 years is incapable of giving consent.
- In order to convict the defendant of an alternative count of indecent treatment of a child under 16, the Crown must have proved, beyond reasonable doubt, all the following facts.
- (a)The defendant dealt with the complainant.
“Deals with” means any act which, if done without consent, would constitute an assault as defined by the Code. “Assault” constitutes, among other things, striking, touching, moving or otherwise applying any force of any kind to the body of another person, either directly or indirectly, without the other person’s consent. It includes a touching of the child by any part of the defendant’s body.
- (b)The dealing was indecent.
- (c)The dealing was unlawful: that is, not justified, authorised or excused by law.
- (d)The complainant was under 16 years.
- Circumstances of aggravation exist if the child was under 12 years old and if she was under the defendant’s care at the time.
The complainant’s evidence
- The complainant was born on 4 December 2006. She is an “affected child”. Her evidence constituted a video recording of an interview that she had with a police officer on 14 September 2017 and a video recording of her evidence in court on 21 November 2019. While the complainant gave the latter evidence, the courtroom was closed. The courtroom was also closed when the video recordings of both her interview and her evidence were played before me.
- I do not draw any inference as to the defendant’s guilt because of the measures used to take and present the complainant’s evidence. The taking and playing of her evidence in this manner are routine practices of the court. The probative value of the evidence is not increased or decreased because these measures were used and I do not give this evidence any greater or lesser weight because of them.
- In considering my verdict, I have reviewed the transcripts of the complainant’s evidence, but I have done so only for ready reference. The actual evidence is contained in the recordings and the transcripts are simply an aid to my understanding and recollection of those recordings. I have also replayed the videos of the interview and the complainant’s evidence in court for the purpose of refreshing my memory, but I do not, as a consequence, give that evidence any greater weight than the other evidence presented in court, nor than I otherwise would have given it.
The police interview
- In her interview with the police, the complainant said she had told the school chaplain a few days earlier that the defendant was touching her body.
- The complainant said that her mother and the defendant had a fight and she had not seen the defendant for some time. The defendant lived with his wife, Mrs Kelly, and they were previously her mother’s friends. When her mother was working, the defendant and Mrs Kelly would pick up her and her younger brother, B1, from school and they would stay at their house for the afternoon. Her evidence was that she thought she was in year two or three during the period when the defendant and Mrs Kelly would pick her up. Another younger brother, B2, was also being looked after by the defendant and Mrs Kelly on those afternoons.
- The complainant initially said that she was sitting next to the defendant and he started touching her inside her clothes, so she jumped up and went into another room. Later, she said that the defendant was watching television and sitting in a single recliner chair in the lounge room. The complainant went to give him a cuddle. She sat on his lap, not actually on top of him, but with her legs over his. He put his hand inside her clothes. The defendant had his arm wrapped around her and slid his hand inside her pants and underwear and touched her vagina, rubbing the inside of her private part with his “pointing finger”. He told her that he used to do this when she was little. The complainant said that she “bounced” off the chair and went into the spare bedroom. At the time, she thought her brothers were asleep and Mrs Kelly was in the kitchen.
- The complainant initially thought she had told her paternal grandmother a few weeks after the incident, but she later said that she only told her grandmother that she was scared of the defendant, because she did not feel confident to say anything more. She said she did not tell her mother, but she thought her grandmother did.
- She said she returned to the defendant and Mrs Kelly’s house on other occasions, but nothing else happened on any later occasion. When she returned to the house after the incident, she did not talk to the defendant but tried to stay away from him. The defendant asked why she was not saying “hi” to him, so she would say “hi” because she did not want to explain why.
- She gave evidence about a fight between her mother and the defendant. Her initial evidence about this fight was that it occurred “not long ago” and she indicated that the fight was why she had not seen the defendant and his wife “for so long”. Later in her interview, the complainant said the fight occurred in the previous year (or perhaps the year before that), “so not long [after] when he touched me.”
Evidence in court
- In her evidence in court on 21 November 2019, the complainant said that she had watched the recording of her police interview the previous day and confirmed that everything she had said was the truth. She said that she was in grade two when the incident happened.
- In answer to questions put to her in cross-examination, the complainant agreed that she went into her father’s full-time care in about June 2015, before which she had spent equal time with her mother and father. Once she went into her father’s full-time care, she no longer went to the defendant’s home.
- She agreed that her mother and the defendant had had an argument before she went into her father’s full-time care and that was the last time she went to the defendant’s home. She thought that the argument occurred near the end of the year.
- She agreed that, after B2 was born, she spent the year living with her mother and did not go to the defendant’s home. She also agreed that her mother had started working in about October or November 2014, in order to get money to fix her car, after which the complainant again started spending time with the defendant and his wife. At that stage her mother was looking after her for most of the time and her father some of the time.
- She also agreed that she had been seeing the school chaplain once a week at school for about 18 months before an occasion on which she told the school chaplain about the incident. She had also told the school chaplain, on that occasion, that she was feeling uncomfortable about meeting her mother’s new boyfriend because her past boyfriends had been violent and she felt unsafe. She then went on to relate the incident.
- The complainant agreed that the defendant was a big person and there was not much room for other people in the chair he sat in – a recliner – when he was in it. She said the recliner faced a television at an angle and, to its right, was the door to the kitchen. The defendant sometimes sat on a chair at the kitchen table, from where he could also see the television. If you sat at the table or stood at the sink or the stove, you could see the recliner. When she was sitting on the defendant’s lap, her legs were over his legs and she was sitting off to his left. His arm was around her and he put that hand down the side of her underpants and between her legs.
- She also agreed that this was the only time it happened, that the defendant never told her to keep it a secret, nor threatened her or offered her any money or lollies afterwards.
- Finally, defence counsel suggested to the complainant that the defendant, at no stage, ever touched her in a sexual way. Her answer was, “No, that is not true.”
Other Crown evidence
- CM gave evidence by a video link. The probative value of her evidence is not increased or decreased because she gave it by a video link. Therefore, I do not give her evidence any greater or lesser weight than if it had been given in the witness box.
- CM is the complainant’s mother. She said that she and the complainant’s father separated a short time after the complainant was born, following which they agreed on a number of arrangements to share the complainant’s custody.
- CM later had two sons: B1, born on 18 June 2011 and B2, born on 13 February 2014. After B1 was born, the defendant and his wife frequently looked after the complainant and B1, either when she wanted to go out with someone or when she was working. When she worked, she would drop them at the defendant’s house early in the morning and collect them in the late afternoon or evening, on Mondays to Fridays. Sometimes they would also stay with the defendant and his wife on weekends and sometimes they would sleep there overnight, particularly when CM had to work late and then again early the next morning.
- She said that, when the complainant was very young, she would sometimes visit the defendant’s wife, but the defendant and his wife did not often babysit her then. The complainant did not spend more than a couple of days with them then. It was not until about when the complainant was in grade one that the defendant and his wife would look after her in CM’s absence. That would have occurred before B2 was born.
- When B2 was born, the complainant was attending school and was either in prep or grade one. CM breastfed B2 for about 13 months, during which time she did not need her children looked after very often, although sometimes she would arrange for the defendant’s wife to collect the complainant and B1 from school and day care and to look after them for a couple of hours. Sometimes they might have a sleepover if CM needed to duck away for other purposes.
- Some time after B2 turned one year old, CM travelled by car to Coffs Harbour for a funeral. On the way back, she hit a kangaroo and damaged her car. In order to pay for the repairs, she got a job on a farm. At that stage, she and the complainant’s father shared custody of the complainant, week on week off, so CM arranged with the defendant’s wife to look after the three children while she was at work, including taking the complainant and B1 to and from school. CM would collect them when she finished work, which could be quite late. Sometimes the children would stay with the defendant and his wife on weekends.
- In her cross-examination, CM said that she had the car accident in about September 2015, after which she started working and the defendant and his wife looked after the children most days. However, she also said that she thought that by then the complainant’s father had full-time custody of her.
- CM said that, when she would pick up her children, she would often see the defendant sitting at the kitchen table or in a recliner in the lounge room. His wife would often also be sitting at the kitchen table or she might be in the garden or on the front patio.
- CM said that she stopped taking the children to the defendant’s house after having an argument with the defendant, when he suggested that she was a neglectful mother and that she had no right to have the children in her care. She had not spoken to the defendant and his wife since then. The complainant was there to see the argument. CM believed that this happened after the complainant’s father took over full-time custody of the complainant, but she was not sure. Later she said she thought it was in late 2015 or early 2016.
- In April 2016, CM moved to Central Queensland.
- SC was the chaplain at the school that the complainant attended in 2017, having started there in July 2016. She had met weekly with the complainant for about 12 months by 12 September 2017.
- On that day, during their weekly meeting, the complainant stated that she was a bit worried about going to visit her mother in Central Queensland because her mother had a new boyfriend. She was worried because her mother’s previous boyfriends had been abusive and violent. SC said to her that it is really important, if you are around somebody who makes you uncomfortable, to use the ‘No, Go, Tell’ model. She went on to explain the model. The complainant said to her, “I felt like that once.” SC invited her to tell her about that and the complainant said that she was at the defendant’s house, where she used to stay sometimes after school; she thought it was a Saturday. She said, “About 12 months ago, [the defendant] touched me on my private parts,” gesturing downwards towards her vaginal area. She did not go into any detail, but she was visibly very distressed, crying and shaking. She then said that when the defendant stopped touching her, she ran to a spare bedroom and shut herself in there until her grandmother came and picked her up. The complainant said that she had told her grandmother about what had happened and she thought that her grandmother had told her mother, but not her father. The complainant said that, since her mother was told, she had not returned to the defendant’s house.
- SC arranged for the complainant to tell the school principal, which she did (in SC’s presence) a few days later.
- SP is principal of the school that the complainant attended in 2016 and 2017. He spoke with the complainant, at SC’s instigation, in September 2017.
- SP said that the complainant had told him that, when she was babysat by the defendant and his wife, the defendant had touched her private parts. She said that she had then left the room, gone to another room, and stayed in there until her grandmother picked her up. She said that she had told her grandmother, who in turn had told her mother. He asked when it happened and she said she wasn’t sure, however it was a year or a few years ago. She said that she had not seen the defendant or his wife since.
- SP did not seek any more details from the complainant, but he contacted her father.
- CF gave evidence by a video link. As with CM, the probative value of his evidence is not increased or decreased because he gave it by video link. Therefore, I do not give his evidence any greater or lesser weight than if it had been given in the witness box.
- CF is the complainant’s father. He and the complainant’s mother separated in about late 2007, after which they shared custody, with CF mostly having her on the weekends and during school holidays.
- CF said that the complainant started school in 2012, but changed to another school in 2013, repeating prep that year. By then, he and the complainant’s mother shared custody equally, a week at a time.
- CF would sometimes pick up the complainant from the defendant’s house at changeover, while CM was working. He said the defendant’s wife was usually on the veranda and the defendant was usually in the kitchen or in a recliner in the lounge room.
- CF said that sometimes his mother would pick up the complainant from the defendant’s house, but that would not have happened after he took over her full-time custody in 2015. He was not aware of the complainant ever returning to the defendant’s house after this time.
- CF said that, one day in September 2017, the principal of the complainant’s school telephoned him. He collected the complainant, who seemed upset. She told him that the defendant had touched her in the groin area in the past. She did not want to give him details at the time.
- Two days later, CF took the complainant to the police station.
Defendant not giving evidence
- The defendant has not given or called evidence. That is his right. He is not bound to give or to call evidence. He is entitled to insist that the Crown prove the case against him, if it can. The Crown bears the burden of proving the defendant’s guilt beyond reasonable doubt and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the Crown. It proves nothing at all and I must not assume that, because he did not give evidence, that adds in some way to the case against him. It cannot be considered at all when deciding whether the Crown has proved its case beyond a reasonable doubt and most certainly it does not make the task confronting the prosecution any easier. It cannot change the fact that the Crown retains the responsibility to prove the defendant’s guilt beyond reasonable doubt.
Factors relevant to the complainant’s credit
- The complainant told a number of people about the incident she alleges: SC, SP and CF.
- This evidence is only relevant to the complainant’s credibility. Consistency between the respective accounts, by each of those people, of the substance of her complaint and between those accounts and the complainant’s own evidence may be taken into account as enhancing the likelihood that her evidence is true. However, I cannot regard the things said in those out-of-court statements as proof of what actually happened; their evidence does not independently prove anything.
- Likewise, any inconsistencies between the witnesses’ accounts and between those accounts and the complainant’s evidence may raise doubts about her credibility or reliability. But the mere existence of inconsistencies does not mean that I must reject her evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time. This is particularly the case with young children.
Delay in making complaint
- The complainant’s delay in reporting the incident she says happened at least a year or so before has an important consequence: her evidence cannot be adequately tested or met after the passage of so many months, the defendant having lost, by reason of that delay, some means of testing and meeting her allegations that would otherwise have been available.
- By the delay, the defendant has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint been made known to the defendant soon after the alleged event, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather, and to call at a trial, evidence casting doubt on the complainant’s story or confirming the defendant’s denial.
- The fairness of the trial has necessarily been impaired by that delay. It would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to the effects of the delay, I am satisfied beyond reasonable doubt of its truth and accuracy.
- The Crown submitted that the only matter in contest (at least in terms of proving the elements of the alleged offence) is whether the act alleged occurred. Consequently, the Crown’s case largely rests on my assessment of the complainant’s credibility and reliability. Her evidence and her presentation are such that I am entitled to find the defendant guilty.
- The complainant was cogent and clear in her evidence, making appropriate concessions but remaining clear about what had happened. For example, when it was put to her in cross-examination that the defendant’s preferred chair in the lounge room was visible from effectively any location in the kitchen, she agreed. She had also said that the defendant’s wife was in the kitchen at the time. That, says the Crown, demonstrates her truthfulness, as she could have said the defendant’s wife was in another part of the house. The facts that the offence was committed in a brazen manner and that this was the only occasion on which it occurred do not detract from the strength of the complainant’s evidence.
- The complainant presented as a careful witness, conscious of being accurate. In both her police statement and during cross-examination, she was consistent in being clear as to what she could remember and what she only thought.
- The complainant’s preliminary complaints were consistent with her evidence and bolster her credibility.
- The incident most likely occurred in 2014 or the first half of 2015: that is, when the complainant was in grade one or two. The complainant said that she continued to go to the defendant’s house for a while after the incident. It was uncontentious that, once she lived with her father full-time, she no longer saw the defendant. In cross-examination, she agreed that her mother’s argument with the defendant occurred before this occurred.
- CM was clearly confused about dates and years. She admitted herself that she had difficulty identifying particular years or months. Most relevantly, she said in cross-examination that her car accident occurred in September 2015, but that was inconsistent with her earlier evidence that it happened before CF took over full-time custody of the complainant and that, for a while after she started working, they continued to share custody 50:50 and, during her weeks of custody, she left her children with the defendant and his wife every working day (including, sometimes, Saturdays). Therefore, the car accident must have occurred the previous year. That is consistent with her evidence of other events and the complainant’s evidence that the event she remembered happened when she was in grade two (that is, 2015).
- The Crown concluded that I should accept the complainant as an honest witness with a good memory of this event, who did her best to tell the truth and, in doing so, was reliable. She had no reason to make up a story and she did not exaggerate her account. The defendant had the opportunity to commit the offence as she described it and there is no reasonable doubt that he did.
- Counsel for the defendant, Ms Goldie, submitted that I should not accept the complainant’s evidence as reliable, as it was not corroborated by any scientific or medical evidence, any admission or any conduct that might amount to the defendant displaying a consciousness of guilt. Also, the preliminary complaint evidence is relatively vague and lacks detail, meaning that it is difficult for the court to make any meaningful assessment or comparison with the complainant’s testimony.
- A number of aspects of the evidence raise doubts about the complainant’s credibility or reliability. While there may be satisfactory answers to some of the submissions in isolation, I should have regard to the cumulative nature of the matters she raised, bearing in mind that the onus is always on the Crown to prove its case beyond reasonable doubt.
- First, there must be doubts about when the incident allegedly occurred. It clearly occurred after B2 was born, as the complainant said he and B1 were asleep at the time. The complainant also said her mother was working at the time and her paternal grandmother picked her up that day. CM’s evidence was that she breastfed B2 until about March 2015, during which period the defendant and his wife rarely looked after the children. She also said she started work in about September 2015, so it must have happened after then, but by then the complainant was in her father’s full-time custody and he was not aware of her going to the defendant’s house after that time (June or July 2015). Also, the complainant told SC that the incident happened about 12 months earlier (that is, September 2016), which is inconsistent with CM’s evidence that she had the argument with the defendant in late 2015 or early 2016 and the children did not return to his house after that. Thus, Ms Goldie submitted, the complainant’s evidence is inconsistent with other evidence concerning the chronology.
- Secondly, Ms Goldie submitted that, as the recliner was visible from the kitchen, where the defendant’s wife was doing things at the time of the alleged incident, it does not make sense that the defendant would assault the complainant in the manner alleged while they were on the recliner in full view of the kitchen and, presumably, his wife.
- Thirdly, the defendant’s alleged comment to the complainant that he used to do it to her when she was younger is contrary to CM’s evidence that the complainant rarely went to the defendant’s house when she was little, particularly before B1 was born, and it was not until the complainant was seven years old that CM left her with the defendant and his wife. The comment may also be contrasted with the complainant’s evidence that she could not remember anything similar happening at any earlier time. Therefore the comment does not fit with the other evidence at trial.
- Fourthly, the complainant gave conflicting accounts of whether she had returned to the defendant’s house after the incident. She told SC that since her mother found out she had not been back to the defendant’s house, but she told SP that she had not seen the defendant since the event occurred. Yet she also said that she had been at the defendant’s house after the incident, but kept out of his way and that her mother’s fight with the defendant occurred some time after the incident. Thus her evidence is inconsistent as to timing, which affects her reliability.
- Fifthly, Ms Goldie submits that the evidence about penetration of the complainant’s vagina is insufficient to accept beyond reasonable doubt. She told SC only that “[the defendant] touched me on my private parts.” She said the same to SP and made a similar statement to CF. None of them sought more details. In her police interview, at first she said the defendant started touching her inside her clothes. Later, she was asked whether the defendant’s finger went inside or outside her vagina, saying it was inside, and she said “no” when asked if it hurt. She was not asked to describe how it felt or any further clarifying questions. Therefore, there is no subjective evidence that may bolster the truthfulness of her account, such as by describing how it felt or that the penetration hurt.
- Finally, Ms Goldie submitted that, although the complainant visited the defendant’s house on many occasions over a long period of time and even stayed with them overnight on occasions, the defendant never touched her inappropriately on any other occasion. There must have been many opportune occasions if he was so inclined. There was no evidence of grooming, nor normalisation of behaviour, nor a slow escalation of offending over time. There was no evidence that the defendant told or sought to induce the complainant not to tell anyone. Therefore, many features commonly associated with child sexual abuse are not present in this case. The offending is out of the blue and committed with another adult in close proximity, which is inconsistent with self-preservation.
- In all these circumstances, Ms Goldie submitted that there are reasonable doubts and I should acquit the defendant.
- Ms Goldie submitted in the alternative that, if I am satisfied that the defendant put his hand inside the complainant’s underpants and touched her vagina, nevertheless I should not accept that the defendant penetrated her vagina or vulva to any extent. In that case, I should at most consider “the alternative verdict.” While she did not spell out what she meant by this, it is clear that she was referring indirectly to the alternative verdict to rape under s 578(1) of the Code, to which I have referred earlier.
Consideration of the issues
Circumstances of the incident
- The evidence was that the recliner was on an angle facing the television, to the right of the recliner was the doorway to the kitchen and the recliner and the television were visible from the kitchen. There was not a lot of room for both the complainant and the defendant on the recliner, so she sat over his legs, with her legs to his left. That means her back was mostly toward the kitchen. If the defendant put his arm around her and put his hand down the side of her trousers and into her underpants, as she described, then from the kitchen it would look, at most, like he was simply cuddling her. It was not unusual for him to cuddle the children.
- Therefore the defendant had the opportunity and could have done what the complainant described without it being obvious. I do not consider the layout of the recliner and the kitchen to cast doubt on her evidence of the event.
- In the complainant’s interview with police about the incident, having said several times that the defendant touched her inside her clothes, she volunteered that “he put his hand through the side [of my pants] and then down my undies”; when asked what his hand was touching, she said her vagina; when asked what his hand was doing when it was touching her vagina, she said, “Like, just rubbing inside” and when asked inside what, she said, “My private part.” Later, when she was asked what he was using to rub inside her private part, she said, “His pointing finger”. She was then asked if his pointing finger was inside her vagina or outside. She said, “Inside”. She was then asked if it hurt and she said, “No.”
- The complainant was not asked and did not say expressly what it felt like when the defendant’s finger touched her vagina, but she denied that it hurt. The increasing details of her evidence about what occurred seemed to me to be told in a natural progression as, for the first time, she was asked for more details of her general allegation that the defendant touched her private parts or her vagina. There is a clear difference, that would no doubt be discernible by a girl of her age, between a hand rubbing the outside of her vagina and a finger rubbing inside it. That it did not hurt is not contrary to her statement that it was inside. She volunteered that his hand was rubbing her vagina inside and, when asked what he was using, she volunteered that it was his “pointing finger” (presumably his index finger). It does not matter that she was not asked what it felt like: it must have felt like a finger rubbing the inside of her vagina, not the outside.
- I consider the complainant’s evidence that the defendant’s index finger went inside her vagina to be cogent and credible.
The defendant’s comment
- CM said that, even when she was not working, she would sometimes leave the complainant with the defendant and his wife, including when she was younger than school age. That is consistent with the defendant having had the opportunity to “do it to [the complainant] when [she] was younger,” as the complainant said he told her.
- This is a very unusual comment for a young complainant to invent, or to believe was said if it was not. I find that the defendant did make that statement. The comment may be seen as indicating that in fact this was not the only time that the defendant had done this sort of thing, although equally it is consistent with the defendant simply meaning that he used to cuddle the complainant on his lap when she was younger. As the latter meaning is clearly open, I do not infer the former, but I do not consider it to be inconsistent with the complainant’s evidence of what occurred on this occasion, nor with the other evidence of when the complainant was looked after by the defendant and his wife.
When the incident occurred
- I do not consider the complainant’s evidence about when the incident happened to be inconsistent with other evidence that I accept, nor with her preliminary complaints.
- A lot of CM’s evidence about when various things happened was inconsistent with both other parts of her own evidence and that of other witnesses as to timing. Her evidence as to timing was therefore not generally reliable. She said that her car accident, which led to her taking on full-time employment and having her children looked after by the defendant and his wife, happened after B2’s first birthday (which was on 2 February 2015). She did say she thought that, by the time she started work, the complainant was in CF’s full-time custody. But she went on to say that she and CF tried week on, week off custody but due to her work it became disruptive for the complainant (inferentially, leading to CF taking full custody). She also said that she had the car accident in September 2015 and started working shortly after, so that the children were looked after by the defendant and his wife more often after that. But, in saying the accident was in September 2015, she was clearly mistaken.
- Clearly the accident happened in late 2014 (as was put to the complainant in cross-examination) or in the first half of 2015 (after B2’s first birthday, as CM said it was), because in June or July 2015 CF took on full custody of the complainant. After he took on full-time custody there was little or no need for the complainant to be looked after by the defendant and his wife. Therefore CM was clearly wrong in saying that the accident happened in September 2015. She had no reference event by which to give that date. In contrast, she had both B2’s first birthday and the fact that she stopped breastfeeding him at about 13 months of age as points of reference for the accident and for the start of the period when she worked full-time and the children were regularly looked after by the defendant and his wife. She may well have left the children (including the complainant) at the defendant’s house on occasions after CF had full custody, but it was infrequent, if at all.
- CM’s evidence that she left her children at the defendant’s house when she was working is only consistent with her having 50:50 custody of the complainant while she worked. That is inconsistent with the accident and her work occurring only after CF had full custody of the complainant. It is most consistent with the accident and the commencement of full-time work occurring in the first half of 2015 after B2’s birthday. That is also consistent with both the complainant’s and CM’s evidence that CM’s argument with the defendant occurred before CF took over full custody of the complainant.
- In her preliminary complaint to SC, the complainant said the incident occurred about 12 months earlier. That was clearly wrong, as by September 2016 she had not been going to the defendant’s house for quite some time. But she told SP that it happened a year or a few years earlier and in her police interview she said that it happened in grade two or three, meaning in 2015 or 2016. It is not unusual for a child of her age to confuse dates and how much time has passed. I do not consider that her statements to SC and SP have a substantial effect on her credit as to timing, given the consistency of it happening in grade two with the other evidence as to timing.
- I am satisfied that the incident described by the complainant, if it occurred, is most likely to have occurred some time between B2’s first birthday and July 2015, when CF took full custody of the complainant.
The argument and the timing
- I accept that there is inconsistency between each of the complainant’s preliminary statements, and between those statements and her evidence, about whether she had returned to the defendant’s house after the incident. That may arise from inconsistent statements by the complainant or inconsistent recollections, by the witnesses, of exactly what she said.
- I consider her statement to the police and her evidence that she had returned after the incident, but did not go there again after her mother’s fight with the defendant, to be credible. The only prior statement with which that is inconsistent is what SP said she told him. SP talked to her only briefly and may have misunderstood (or had an incorrect recollection of) when she said she stopped seeing the defendant.
- Both the complainant and CM said that CM’s argument with the defendant happened before CF assumed full-time custody. That seems likely. It may have been a reason why CF took full custody, while CM continued to work. Both the complainant and CM thought that the argument occurred toward the end of a year, which is difficult to reconcile with this view, but that does not affect the fact that, while she was in the defendant’s frequent care, he had the opportunity to offend as alleged.
- I do not consider that the complainant’s evidence that she told her grandmother and believed her grandmother had told her mother, or that she thought her mother argued with the defendant because of the incident, is inconsistent with her other evidence or demonstrates unreliability. She said she told her grandmother that she was scared of the defendant, but could not tell her any specifics of the event, nor why she was scared. She thought her grandmother had told her mother because she appears, at least at one stage, to have associated the argument with the event, although clearly she was wrong about that. That may have been simply a childish logic and connection between two important events in her life.
No grooming or secrecy
- There is certainly no evidence that this alleged incident was anything other than a one-off event. That and the absence of any suggestion by the defendant to the complainant that she keep the event a secret are factors that I must weigh seriously in the balance in assessing the credibility of the complainant’s evidence, as they tend to make the incident less likely than if there had been evidence of other behaviour of a grooming or sexual nature between them, or that the defendant had specifically persuaded her to keep the event secret.
- On her account, the complainant did not give the defendant much of an opportunity to suggest that she keep the event a secret. She said that she jumped off his lap very soon after he started rubbing her vagina and immediately after he said he used to do that when she was younger. Thereafter, she kept away from him as much as possible, both that afternoon and on later occasions when she visited the house. In the circumstances, I do not place much weight on the absence of any such suggestion.
- The Crown submits that I should consider his comment to her to be an attempt to make her feel that this was normal behaviour. It may be so but, as I have already said, even if I accept that he made that statement to her, an inference from the comment is open that is consistent with the defendant’s innocence, so I do not conclude that it was such an attempt.
- While the absence of any evidence of grooming or other sexual conduct by the defendant toward the complainant weighs against the event having occurred, as being apparently out of character, it is not unusual for such conduct to occur on only one occasion. The lower likelihood of it having happened in this circumstance is outweighed by the cogency of the complainant’s evidence about the event. Her credit and reliability in this respect are supported by her preliminary statements, which were overall consistent with her evidence, as well as the cogency of her statement to police about what had occurred.
- Notwithstanding the delay in the complainant first making the allegation and the effect that has had on the defendant’s ability to test her evidence, having considered her evidence with particular care, as well as all the other evidence, and taking account of the defendant’s submissions, both individually and cumulatively, I have formed the view that she was being truthful and was reliable in her evidence of what the defendant did to her. She presented as remembering and accurately relating the details of what had happened. Her evidence (in particular, her police statement) included details that would be unlikely to come from a young girl unless the incident had happened to her (such as that the defendant was rubbing the inside of her vagina with his “pointing finger” and which way her legs were facing). It was consistent with the less detailed accounts that she gave to the preliminary complaint witnesses.
- I do not find that the inconsistencies in the complainant’s evidence about when the incident occurred affect her credit or the reliability of her evidence about the incident. It is not unusual for even adult witnesses (such as, for example, CM) to have difficulty remembering when events occurred, when they try to recount them some time later. In the end, the complainant was accurate in concluding that it happened when she was in grade two.
- I find that the complainant was a truthful and reliable witness.
- I am satisfied, beyond any reasonable doubt, that, on an occasion between February and July 2015, when the defendant and his wife were looking after the complainant and her brothers, the complainant climbed onto the defendant’s lap for a cuddle. She sat across him with her legs to his left. He put his arm around her, as if to cuddle her, but slid his hand into her pants and underpants. He used his index finger to rub the inside of her vagina, thus penetrating it to some extent.
- Had I not been satisfied that the defendant’s finger penetrated the complainant’s vagina, I would have found that his conduct in putting his hand under her pants and underpants was indecent and would constitute an assault in the absence of consent. At the time, he was responsible for her care, as he and his wife were looking after her at her mother’s request. She was then 8 years old.
Conclusion and verdict
- Therefore, I find the defendant guilty of rape.
- Had I not been satisfied that the defendant’s finger penetrated the complainant’s vagina, I would have found him guilty of indecent treatment of a child under 16 and that, at the time, the child was under 12 and under his care.
 Code, s 615B(1).
 Code, s 615B(3).
 Code, s 615C(1).
 Code, s 615C(3).
 Code, s 349(2).
 Code, s 349(3).
 Code, s 578(1).
 Code, s 210(1).
 Code, s 210(1)(a).
 Code, s 210(6).
 Code, s 245.
R v Schneiders  QCA 210, -.
R v Dunn  2 NZLR 481.
 Code, ss 210(3), (4).
Evidence Act 1977, s 21AC.
 Admissible under Evidence Act, s 93A. The recording of the interview is exhibit 1 and the transcript of the interview was marked A for identification.
 Pursuant to and in accordance with Evidence Act, s 21AK. The recording of her evidence is exhibit 2 and the transcript was marked B for identification.
Evidence Act, s 21AW.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 188.
 That is, 2015 or 2016.
 She demonstrated the movement using her left hand.
 She could not remember any other occasion when the defendant had done such a thing.
 Her mother later gave evidence that B2 was born on 13 February 2014.
 It was put to her that this event occurred in 2014, with which she agreed, but she then said that it was after B2 had turned one, in which case it would have been in 2015.
 At that time, the complainant was in grade four.
Azzopardi v The Queen (2001) 205 CLR 50 at ,  and .
R v LSS  1 Qd R 546, .
R v Ashley  QCA 293, -.
Longman v The Queen (1989) 168 CLR 79.
 Exhibit 2; MFI-B at T1-5.
 Exhibit 1, MFI-A, T6:227-228; T7:250; T8:294-295.
 Exhibit 2, MFI-B, T1-9:16-24; trial T1-16:10-11; T1-27:44-45.
 Exhibit 2, MFI-B, T1-10:4.
 Exhibit 1, MFI-A, T10:369-387.
 Exhibit 1, MFI-A, T13:530-543.
 T1-19:47 to T1-20:2.
- Published Case Name:
The Queen v Kelly
- Shortened Case Name:
The Queen v Kelly
 QDC 116
12 Jun 2020