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The Queen v Cunningham

[2020] QDC 118

The Queen v Cunningham[2020] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Cunningham [2020] QDC 118

PARTIES:

The Queen

v

CUNNINGHAM, Douglas Colin

(Defendant)

FILE NO/S:

953/2020

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11 and 12 June 2020

JUDGES:

Smith DCJA

ORDER:

I find the defendant guilty.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – GROOMING A CHILD UNDER THE AGE OF 12 WITH INTENT –  GENERALLY – whether the defendant is guilty or not guilty – whether defendant had the relevant intention

CRIMINAL LAW – EVIDENCE – PROOF – CIRCUMSTANTIAL CASE – whether crown has excluded reasonable hypothesis consistent with innocence – whether the only rational inference was a sexual intention

Criminal Code 1899 (Qld) ss 218B, 615B, 615C

Evidence Act 1977 (Qld) ss 21AK, 21AW, 93A

Explanatory note to Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Bill 2012 (Qld)

Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50, cited

Bauer v R [2018] HCA 40; (2018) 92 ALJR 846, cited

Burns v R [1975] HCA 21; (1975) 132 CLR 258, cited

Butera v DPP [1987] HCA 58; (1987) 164 CLR 180, cited

Chamberlain v R (No 2) [1983] HCA 7; (1983) 153 CLR 521, cited

DPP v FM [2013] VSCA 129; 45 VR 64; 233 A Crim R 83, cited

Edwards v R [1993] HCA 63; (1993) 178 CLR 193, cited

Fleming v R [1998] HCA 68; (1998) 197 CLR 250, applied

HML v R [2008] HCA 16; (2008) 235 CLR 502, cited

Hughes v R [2017] HCA 20; (2017) 263 CLR 338, cited

Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334, cited

Pell v R [2020] HCA 12; (2020) 94 ALJR 394, cited

R v Armstrong [2006] QCA 158, applied

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, cited

R v E (1995) 89 A Crim R 325, applied

R v McBride [2008] QCA 412, cited

R v Mulcahy [2010] ACTSC 98, cited

R v Newcombe [1995] QCA 161; [1996] 1 Qd R 323, cited

Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, applied

Tector v R [2008] NSWCCA 151; 186 A Crim R 133, cited

Zaburoni v R [2016] HCA 12; (2016) 256 CLR 482, applied

Zoneff v R [2000] HCA 28; (2000) 200 CLR 234, applied

COUNSEL:

Ms K Milbourne for the crown

Mr F Walsh for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Sterling Law for the defence

Introduction

  1. [1]
    This is a judge only trial.
  2. [2]
    The defendant is charged with the following count:

“That on or about 29th September 2019 at Rocklea in the state of Queensland, the defendant being an adult engaged in conduct in relation to a person under the age of 16 years [the complainant] with intent to facilitate the procurement of the complainant to engage in a sexual act in Queensland and the complainant was under 12 years.”

  1. [3]
    The crown particulars were tendered as Exhibit C for identification. It is alleged that the defendant engaged in conduct with the complainant by:
  • Playing games with her
  • Encouraging her to enter his van
  • Giving her money
  • Paying for her face painting
  • Getting changed or removing his clothing in her presence

And he did so with the intent to facilitate the procurement of the complainant to engage in a sexual act.  

  1. [4]
    The defendant has pleaded not guilty to the charge and it is my role to determine on the evidence whether the defendant is guilty or not guilty.
  2. [5]
    The offence of grooming a child is set out in section 218B of the Criminal Code 1899 (Q) (“the Code”). The elements of the offence are:
  1. The defendant was an adult.
  2. The defendant engaged in conduct in relation to the complainant.
  3. The complainant was under 16 (or was believed by him to be under 16).
  4. The defendant had the intent to facilitate the procurement of the complainant to engage in a sexual act in Queensland.
  5. The complainant was under 12.
  1. [6]
    The elements of age are not in dispute. Nor is the issue of identity.
  2. [7]
    “Intent” and “intention” are familiar words. They carry their ordinary meaning. In essence, it means having a purpose or design.[1]
  3. [8]
    In ascertaining the defendant’s intention, one is drawing an inference from facts which one finds established by the evidence concerning his state of mind.
  4. [9]
    Intention may be inferred or deduced from the circumstances and from the conduct of the defendant before, at the time of, or after he did the acts relied on by the crown.
  5. [10]
    And, of course, whatever a person has said about his/her intention may be looked at for the purpose of deciding what that intention was at the relevant time.
  6. [11]
    As to the intention for such an offence, as was noted by the Victorian Court of Appeal in DPP v FM,[2] concerning the equivalent commonwealth provision, the intention to be proved by the crown is a subjective one. 
  7. [12]
    I note that section 218B(5) of the Code provides that it is not necessary for the crown to prove the defendant intended to facilitate the procurement of the complainant to engage in any particular sexual act. Also, it does not matter that by reason of circumstances not known to the defendant it was impossible for the complainant to engage in the sexual act. Also, it does not matter the defendant intended the person would be procured to engage in a sexual act.
  8. [13]
    “Sexual act” is defined in section 218B(3) of the Code as allowing a sexual act to be done to the person’s own body; doing a sexual act to the person’s own body or to the body of another person or otherwise engaging in an act of an indecent nature. Also, section 218B(3) of the Code provides it is not limited to acts involving physical contact.[3] The term “act” is not specifically defined. In the Concise Australian Oxford Dictionary is means something done, a deed or an action.
  9. [14]
    I note in R v Newcombe,[4] it was said the term “sexual act” is capable of a very wide meaning.
  10. [15]
    In the explanatory notes to the Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Bill 2012 (Qld) it was noted that the prosecution must prove the offender intended facilitating the procurement of some type of sexual activity.
  11. [16]
    It was also said at page 5  “the term ‘grooming’ refers to wide-ranging behaviour that is designed to facilitate, or make easier, the later procurement of a child for sexual  activity (for example, an offender might build a relationship of trust with the child, and then seek to sexualise that relationship…  Introducing an offence of grooming allows police to potentially intervene before a sexual act or sex-related activity takes place. The introduction of this offence can be justified on the basis that the community expects that the police will be provided with appropriate powers to protect children from predators before any actual physical harm could occur.”
  12. [17]
    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.
  13. [18]
    As to the term “procure’, section 218B of the Code defines the term as “knowingly entice or recruit for the purposes of sexual exploitation.” The term “facilitate” is defined as make easy or less difficult or more easily achieved.[5] 

Principles to be applied

  1. [19]
    In a judge only trial, the judge must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury.[6] Further, if an act or the common law requires a warning or instruction to be given to the jury or prohibits a warning being given to the jury, the judge must take into account the requirement or prohibition if the circumstances arise in the course of the trial.[7]
  2. [20]
    The judgment of the judge in a trial by a judge sitting without a jury, must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.[8]
  3. [21]
    This section is in accordance with Fleming v R,[9] where the High Court noted that a judge is required to explain the reasoning process linking those matters so as to justify the verdict in which the judge comes. Also, it was noted at [33] that any warnings which must be given must be recorded, heeded and taken into account.
  4. [22]
    In R v Mulcahy,[10] Nield AJ set out the directions and considerations which should be given at a judge alone trial. I note the following from the judgment:
  • A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules that govern a criminal trial are these.
  • The [prosecution] bears the onus to prove the guilt of the accused. The [prosecution] has asserted that the accused has committed a criminal offence, therefore the [prosecution] must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence. 
  • The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his/her guilt. 
  • The accused is presumed by law to be innocent of the offence with which he or she stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his/her guilt.
  • If the evidence which I accept satisfies me beyond reasonable doubt of his/her guilt, then he/she loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his/her guilt, then he/she remains presumed to be innocent and the appropriate verdict is not guilty. 
  • In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
  • As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the [prosecution] and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
  • I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
  • I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
  • I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what the witness has said if I consider it unworthy of acceptance.
  • In a criminal trial, the [prosecution] must prove the essential elements of the charge beyond reasonable doubt. The [prosecution] does not have to prove everything about which evidence has been given beyond reasonable doubt.[11]
  1. [23]
    I also note with respect to the drawing of inferences, I may only draw reasonable inferences; and any inference must be based on facts I find proved by the evidence. There must be a logical and rational connection between the facts I find and my deductions or conclusions. I am not to indulge in intuition or in guessing.

Evidence

  1. [24]
    The complainant and the witness TH gave evidence by way of section 93A Evidence Act interviews and by way of section 21AK Evidence Act pre-recordings. I also note that the court was closed during the taking of the 21AK evidence and during the playing of the section 93A statements and the 21AK recordings, and there was a support person present during the pre-recordings.
  2. [25]
    I specifically record that the measures for the taking of their evidence are a routine practice of the court and the court should not draw any inference as to the defendant’s guilt from those measures. The probative value of the evidence is not increased or decreased because these measures were used and the evidence is not to be given any greater or lesser weight because of these measures.[12]
  3. [26]
    My reference to the transcripts is for ready reference. I am aware of course that the actual evidence is contained in the recordings and the transcripts are an aid to my understanding of the recordings.[13]

Complainant’s evidence

93A statement[14]

  1. [27]
    The complainant provided a section 93A statement on 29 September 2019. She was and is six years old.
  2. [28]
    The complainant said that that day she was at the markets. She alleged that “this nice guy” let her into his van, bought her some water and some cotton candy and she was in the van and made a bed for herself.[15] Her father was worried and looked all over the markets and found her in the van and took her back. She said that her father went up to the man and said it was wrong to put a little child in the van.[16] After this, they drove to the police station.[17] She agreed that she met a nice guy at the markets[18] and he complimented her about her face and her arms.[19] She described him as having blonde curly hair with black sunglasses and lots of tattoos.[20] She said there was a black truck and she and her friend TH were in the back playing with toys and the man cleaned it up.[21] She, prior to getting in the truck, was on a jumping castle and the man told her to come to his truck.[22] He set her up with a little bed and brought her water and cotton candy.[23] She chased him to the truck.[24] He told her it was OK to go into his van.[25] When she chased him she hit him and bit him.[26] The man helped her make up the bed.[27] TH was also in the van. She was already in the back of the van.[28] TH was eight and the complainant was six. TH then went home.[29] The man changed from pants into his shorts while she was making the bed.[30] She knew he was getting changed because he told her.[31] She said she didn’t see anything as she was looking outside.[32] She didn’t turn around and look.[33] It took him about 10 or 5 minutes to get changed into shorts.[34] He then went outside and sold things.[35] Then her dad came and got her.[36] TH was gone when he was getting changed.[37] The man complimented her about her face and arms for a long time.[38] He also gave her money to buy the water and cotton candy.[39] He helped her find fairy floss.[40] There was nothing else that happened in the van.[41] She was in the van for 20 minutes or so or an hour and TH was in the van for two minutes.[42] TH was playing with a stuffed unicorn in the van.[43]

Pre-recording of the complainant - 10 June 2020

  1. [29]
    In evidence-in-chief, the complainant said that when she spoke to the police she told them the truth.[44] A number of photographs were tendered through her (Exhibits 2, 3 and 4) which showed some of her interactions with the defendant at the markets. She said the defendant complimented her saying she was beautiful and pretty and he said this a lot.[45] She said it was her idea to make the bed in the van.[46] He just agreed. He didn’t say anything when she made the bed. She said the man got changed in the van near the back doors.[47] She was in the back looking away at that time. She was sitting at the side of the van.[48] She was playing before this in the back of the van.[49]
  2. [30]
    In cross-examination, the complainant said that she spent time at the face painting stall, time at the defendant’s stall and also at the jumping castle.[50] She said that the defendant told her she could go to his stall. He told her she could pick out a toy and she could have a toy for free. This is because she gave lipstick to the face painting lady.[51] This is the reason she went to his stall. When she got there, she picked out a toy, namely a board game and took it.[52] She could not recall if he said it was OK to go in the van.[53] She said thank you and thinks she took it to her father’s stall.[54] At her father’s stall, her father was selling stuff with Ms JB and she helped them.[55] She said that she got bored with selling and went to look at the other stalls.[56] She liked the face painting stall and the jumping castle.[57] She can’t recall what the defendant was selling.
  3. [31]
    She told her father that she got a board game but did not think she told him or Ms JB where it came from.[58] She admitted being in the defendant’s van at one point and said she was there when he got changed. He told her he was going to get changed and that she should look away.[59] She was looking outside when he got changed and didn’t see what he was doing.[60] She said she could have got out.[61] After the defendant got changed, he continued selling stuff. She agreed that day she roamed a fair bit. She did not recall another man (an Asian man being at the defendant’s stall).[62] She recalled TH was there. She admitted playing with TH when they were both in the defendant’s van. She admitted that they threw toys around the back of the van playing a game called “make a mess”.[63] At one stage, the back door of the van was open and TH or she threw toys out of the back door of the van. The defendant told them to stop.[64] She didn’t recall a woman telling them to stop. She never saw TH’s uncle or grandmother. She agreed that TH had fairy floss and she wanted to get some.[65] She asked the defendant for some money to get some and the defendant gave her some money.[66] He came with her to get this and some water. Before this, she couldn’t find where the fairy floss was and told the defendant she couldn’t find it so he went with her and the fairy floss was obtained. She didn’t have water and fairy floss when her father collected her.[67]
  4. [32]
    She said that her father saw her sitting in the van. He told her to come with him. He took her back to his stall and then went and spoke to the defendant.[68] She said her father was friendly to the defendant. When her father asked her what she was doing in the van she said that she was waiting for TH.[69] When her father came to get her, she thinks that the defendant was picking up toys but she was not too sure.[70] She said that she and TH made the bed together and the defendant didn’t help them with this.[71] She didn’t recall playing catch with TH but recalled TH having a stuffed unicorn.  She said that the defendant didn’t tell her to get into the van or put her into the van.[72] She said this was the first day she met him and he was friendly and kind. She had a good time with TH in the van. She said that she got her face painted twice at the face painting stall and her arms were painted as well. She was also interested in what the face painter was painting on the other children. At one stage, Ms JB went there as well. When the defendant was talking about her looking beautiful and pretty, he was talking about how her face looked.[73]

TH - Section 93A statement[74]

  1. [33]
    TH had provided a section 93A statement on 1 October 2019. She was eight.
  2. [34]
    She said the complainant was getting her face painted and they started playing and the complainant started biting the defendant on his tummy.[75] She said that the defendant is a bit old and goes to the markets every Sunday.[76] She said that the defendant had a black van. The black van had heaps of stuff around it with a blue cover on it.[77] There were no seats in the back of the van. He tried to sell knives and there were toys in there.[78] She said that she played with the little girl and her unicorn.[79] They were playing “make a mess”.[80] They were in the van playing with toys.[81] The complainant was biting the defendant on the tummy for fun.[82] The defendant pretended to call for help. This was outside the van.[83] She said that the defendant usually wears black pants and sometimes a black shirt. She thought it was a blue shirt on the Sunday.[84] They were playing a game called making a mess and the complainant was chucking stuff at the defendant.[85] She has had stuff for free from the defendant.[86]

TH - Pre-recording- 10 June 2020

  1. [35]
    In evidence-in-chief, TH said that she told the police the truth.[87] Exhibits 6 and 7 were photographs tendered through her of the markets.
  2. [36]
    In cross-examination, she agreed that in Exhibit 7 she was carrying a stuffed unicorn.[88] She admitted she played with another girl in the defendant’s van.[89] She knew the defendant and had been to the defendant’s stall previously. The defendant was a friend of her uncle and grandmother. She had been at the stall before. Sometimes she would leave the defendant’s stall and visit other stalls and would shop with her uncle and grandmother.[90] She did not agree that they would normally say goodbye to the defendant. When she was with the defendant by herself, the defendant was nice to her and gave her free stuff.[91] She and her uncle walked past the defendant’s stall and her uncle left her at the stall and went off.[92] When she was at the stall, there were a lot of customers, there were a lot of people walking past and it was a busy place.[93] She said that his stall was across from the face painting stall but she did not go there. She said that the little girl came over and started playing with her and they played catch with the unicorn.[94] This was outside the defendant’s van. They then played inside the defendant’s van.[95] The side door of the van was open and they both got in through the side door into the van. They continued playing in the van. She denied making up a bed with the other girl in the van and did not see her make one.[96] She agreed that in the van they played a game called “make a mess” which involved throwing toys around the back of the van which made a mess. She said the back door was open all the time.[97] She didn’t agree that toys were thrown out and did not recall the grandmother coming to the back door.[98] She didn’t recall another man helping at the defendant’s stall. She admitted having fairy floss but did not recall the other girl wanting fairy floss as well.[99] When in the van, the side door was open and one could see people going past. It was a busy day at the markets.[100] She is not sure if they closed the door when they were in the van.[101] She had been in the van a couple of times before.[102] Exhibit 8 was a photograph of her uncle and grandmother. In re-examination, she said there was a sheet in the van on the floor.

Officer Smith

  1. [37]
    CCTV footage of the day was tendered through this witness and marked as Exhibit 9.[103] The following may be determined from the footage:

Item

Time

Occurrence

Comment

1

7:33:15

The complainant walked towards the face painting stall and then the defendant’s stall and then went behind the defendant’s counter.

 

2

7:37:35

The defendant walked from his stall to the face painting stall.

From my observations, the defendant saw the complainant there and then walked to the face painting stall.

3

7:40:08

The defendant returned to his stall.

 

4

7:45:26

The complainant returned to the defendant’s stall and went around the back of the counter.

On the evidence, the defendant gave her a toy, namely a board game for free.

5

7:56:10

The complainant left carrying items.

This was the board game.

6

8:35:34

The complainant returned to the face painting stall.

 

7

8:35:42

The complainant left the face painting stall.

 

8

8:41:38

The complainant returned to the face painting stall.

 

9

8:48:50

The defendant walked from his stall to the face painting stall.

From my observations, the defendant saw the complainant and I infer this is the reason he went to the face painting stall.[104] 

10

8:49:18

The defendant interacted with the complainant.

 

11

8:52:36

The defendant interacted with the complainant.

This involved the defendant and the complainant appearing to play a game whereby the complainant was chasing the defendant and touching him. He touched her hand at one point.  

12

8:55:57

The defendant returned to his stall.

 

13

8:56:31

The defendant walked from his stall to the face painting stall.

I infer this was because the complainant was there. He then sat down there.

14

8:57:37

The defendant returned to his stall.

 

15

9:00:08

The defendant walked from his stall to the face painting stall.

I infer this was because the complainant was there.

16

9:00:13

The defendant interacted with the complainant.

This involved the chasing game as described previously.

17

9:01:12

The defendant returned to his stall.

From my observations, he was looking in the complainant’s direction. 

18

9:01:57

The defendant walked from his stall to the face painting stall and interacted with the complainant.

I infer this was because the complainant was there. This interaction involved the chasing game.

19

9:03:34

The defendant returned to his stall.

 

20

9:05:01

The defendant walked from his stall to the face painting stall.

Again, I infer this was because he saw the complainant.

21

9:06:11

The complainant followed the defendant back to his stall.

From my observations, the defendant kept looking in the complainant’s direction.

22

9:06:18

The complainant returned to the face painting stall.

 

23

9:06:40

The defendant walked from his stall to the face painting stall and interacted with the complainant.

I infer this was because the complainant was there. This interaction involved the chasing game.

24

9:08:04

The defendant chased the complainant to his stall.

 

25

9:08:14

The complainant left the defendant’s stall and returned to the face painting stall.

 

26

9:09:03

The defendant walked from his stall to the face painting stall and interacted with the complainant.

 

27

9:09:47

TH arrived at the markets with her uncle and talked to the defendant.

TH was carrying a stuffed toy.

28

9:11:53

The defendant interacted with the complainant at the face painting stall.

The defendant was looking at the complainant. This interaction involved the chasing game.

29

9:13:10

The defendant returned to his stall.

 

30

9:14:57

The complainant ran to the van and slapped the defendant.

 

31

9:15:34

The complainant returned to the face painting stall.

 

32

9:18:53

The defendant walked from his stall to the face painting stall.

I infer because the defendant saw the complainant.

33

9:20:14

The defendant returned to his stall.

 

34

9:26:11

The complainant walked to the defendant’s stall.

 

35

9:27:16

The complainant left the defendant’s stall and left the area.

 

36

9:35:50

The complainant returned to the face painting stall with an adult female (Ms JB).

 

37

9:37:23

The defendant walked from his stall to the face painting stall and then returned to his stall.

Again, I infer this was because he saw the complainant.

38

9:39:56

The complainant and Ms JB got their face painted.

 

39

9:44:36

The complainant left Ms JB at the face painting stall.

 

40

9:48:09

Ms JB left the face painting stall without the complainant.

 

41

9:51:13

TH arrived at the defendant’s stall.

 

42

9:53:08

The complainant returned to the face painting stall.

 

43

9:53:18

The complainant left the face painting stall and left the area.

 

44

9:54:10

The complainant returned to the face painting stall.

 

45

9:54:37

The complainant walked to the defendant’s stall and started playing with TH. At times, the complainant chased the defendant.

 

46

9:56:11

The complainant entered the van through the side door.

 

47

9:58:44

The complainant interacted with the defendant, and the complainant and TH then played in the van going in and out.

 

48

10:02:06

Both girls play hit the defendant. The defendant opened the rear door of the van. The side door of the van was closed.

 

49

10:03:00

The defendant looked in the van from the rear door. The girls were inside.

 

50

10:03:29

The defendant looked in the van from the rear door. The girls were inside.

 

51

10:04:00

The girls were still inside the van.

 

52

10:04:05

The complainant came up behind the defendant at the rear door of the van.

 

53

10:04:54

The complainant exited the rear of the van and play hit the defendant.

 

54

10:05:10

The complainant again entered the van via the rear door.

 

55

10:05:50

The defendant looked in the van from the rear door. The girls were inside.

 

56

10:06:33

The girls exited the van from the rear door.

 

57

10:07:52

The defendant put some items in the van via the rear door. 

 

58

10:08:36

The girls entered the van via the rear door.

 

59

10:09:40

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

60

10:11:35

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

61

10:12:43

TH’s grandmother returned to the defendant’s stall.

 

62

10:13:43

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

63

10:14:46

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

64

10:16:44

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

65

10:19:00

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

66

10:20:08

The defendant appeared to be reminded by someone to serve a customer.

I infer he was overly interested in the complainant in particular bearing in mind his earlier observations of her and his interactions with her.  

67

10:21:16

TH’s uncle returned to the defendant’s stall.

 

68

10:24:11

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

69

10:26:15

The defendant looked inside the van from the rear door and appeared to talk to the girls.

 

70

10:26:51

TH exited the van via the rear door.

 

71

10:27:10

The complainant closed the rear door but the defendant opened it again.

 

72

10:28:06

The defendant entered the van with the complainant inside.

This is the first of five times the defendant entered the rear of the van with the complainant.

73

10:28:35

TH and her uncle left the defendant’s stall and left the area.

The defendant was in the rear of the van by himself with the complainant by herself.

74

10:29:13

The complainant stood at the rear door of the van and then entered the van.

 

75

10:29:00

TH’s grandmother and the Asian man working at the stall appeared to look in the rear of the van to see what was happening. 

 

76

10:30:05

The complainant exited the van and walked to the face painting stall.

 

77

10:30:19

The defendant exited the van.

 

78

10:32:19

The complainant was at the face painting stall and the defendant walked from his stall to the face painting stall.

Again, I infer that the defendant went there as he saw the complainant.

79

10:37:25

TH’s grandmother left the defendant’s stall and left the area.

 

80

10:37:43

The defendant walked from his stall to the face painting stall.

 

81

10:38:22

The defendant interacted with the complainant, and they both walked to his stall.

This involved some sort of game where she chased him. Also, I saw them talking together and she then followed him. I infer this was because he invited her over to the van.

82

10:39:53

While the complainant was inside the van, the defendant entered the van via the rear door.

This is the second time the defendant was with the complainant in the van. He was alone with her in the van for almost six minutes.

83

10:45:15

The defendant exited the van and walked behind the van. The complainant followed him.

From my observations, the two talk to each other and the defendant gets something from his pocket. On the evidence, I infer this was the money he gave her. 

84

10:46:05

The complainant left the defendant’s stall and left the area.

I infer this was to buy the water/fairy floss.

85

10:48:13

The complainant returned to the defendant’s stall. The complainant entered the van via the rear door. She then exited the van, went to the defendant and followed him behind his van.

I infer this was because she could not find the stall from which to purchase the items. I infer he gave her directions to find the store. It certainly looks like that.

86

10:50:23

The complainant left the defendant’s stall and left the area.

I infer this was to purchase the items.

87

10:56:37

The complainant returned to the defendant’s stall.

At the stall, the complainant talked to the defendant. 

88

10:56:49

The complainant went on a walk with the defendant and left the area.

I infer this was to find the store to purchase the items.

89

10:59:00

The complainant and the defendant returned to the defendant’s stall with food items.

 

90

10:59:22

The complainant entered the rear of the van.

 

91

10:59:33

The defendant walked behind the van and was looking around. He was also carrying what appears to be a clothing item which he put into the van.

I infer these are the shorts he later changed into. They are consistent with Exhibit 10G. This contradicts the defendant’s claim he was wearing shorts underneath the track suit pants.

92

11:00:24

The defendant looked inside the van from the side door and appeared to talk to the complainant.

 

93

11:01:02

The complainant exited the van via the side door and walked to the face painting stall.

The defendant could have changed into his shorts at that point.

94

11:01:34

The complainant entered the van via the side door.

 

95

11:01:39

The defendant looked inside the van from the rear door and appeared to talk to the complainant.

 

96

11:02:13

The defendant entered the van via the side door with the complainant inside the van.

This is the third time the defendant entered the van with the complainant.

97

11:02:44

The defendant exited the van.

 

98

11:03:23

The defendant looked inside the van from the rear door and appeared to talk to the complainant.

 

99

11:03:30

The defendant entered the van wearing tracksuit pants.

This is the fourth time the defendant entered the van with the complainant.

100

11:03:45

The defendant then closed the rear door of the van with the complainant inside.

 

101

11:04:55

The defendant exited the van wearing shorts and carrying tracksuit pants.

The complainant was at the rear of the van talking to the defendant.

102

11:05:14

The defendant looked inside the van from the rear door and appeared to talk to the complainant.

 

103

11:05:42

The defendant entered the van again with the complainant inside. 

This is the fifth time the defendant entered the van with the complainant.

104

11:06:32

The Asian man working with the defendant at the store walked to the rear of the van.

 

105

11:06:44

The complainant’s father walked to the defendant’s stall and approached the complainant at the side door of the van.

 

106

11:07:10

Both the defendant and complainant exited the van via the side door.

 

107

11:07:54

The complainant left the defendant’s stall with her father carrying food items.

 

  1. [38]
    Officer Smith admitted that the Chinese man at the markets appeared to be a friend of the defendant. On 3 October 2019, a search warrant was executed on the defendant’s residence and also on his transit van. Clothing were seized and blankets were seized. Exhibit 10A - 10J are photographs of the van and clothing seized.
  2. [39]
    On 3 October 2019, the officer conducted a record of interview with the defendant.[105] During the interview it was put to the defendant that he had hugged one or both children. The officer conceded that after watching the footage there was no such hugging.
  3. [40]
    In cross-examination, Officer Smith accepted that the defendant was unable to explain the warning given to him not to answer questions.[106] She also accepted he was not clear about his marital status but understood that after discussion.[107] She agreed that he did not know the name of the street where the Rocklea Markets are located.[108] She agreed he reached year seven at school and took time to read a newspaper.[109] She agreed that he told her he couldn’t recall the names of TH’s parents or their relationship. He knew them by sight but couldn’t say what the relationship was.[110] She agreed that he said that he had difficulty recalling the exact time of the opening of gates at the Rocklea Markets.[111] She agreed that he couldn’t tell her the year or make of his vehicle. He said that he was unsure of the flooring of the van but with questions he could recall.[112] He said he did not know the name of the face painting lady.[113] He said he didn’t recall the details of the complainant’s hair.[114] He said he could not describe the complainant’s father.[115] He could not say what the age of his brother is although it was not his actual blood brother.[116] He said that he thought he was born in Dalby and claimed he didn’t have a good memory.[117] The officer agreed that she initially told him that she was investigating a child stealing matter.[118] She agreed, having seen the CCTV footage that the Chinese man was in the vicinity of the defendant’s stall most of the time.[119] Also, TH’s grandmother was there as well.[120] She agreed the footage showed it was very busy at the markets.[121] At times, the defendant would walk away from the stall in disregard of customers to go to the face painting stall.[122] She agreed that as to the screenshots, it was someone else’s interpretation and some of them were blurry.[123] With regards to the allegation about getting changed, she agreed it was a warm day.[124] She did not recall the complainant mentioning being hugged.[125]

Defendant’s interview

  1. [41]
    The defendant was interviewed on 3 October 2019.[126]
  2. [42]
    He said that the complainant came over to him from the face painting stall. The complainant was in the back of the van with TH with two big boxes of toys.[127] They were playing with them and were throwing the toys outside of the van because the door was open.[128] The toys were nearly hitting customers. TH then left and the complainant was still there. She was under a blanket and the defendant was in the back picking up the toys.[129] A guy then came to the door and grabbed the girl and threatened him.[130] After the markets, he went straight home. He said that the van was a Ford and was painted black for him. There were no seats in the back and all of his stuff is in there.[131] He said that he got to the markets and set up at about 4:30am.[132] Trading began at about 6:00am. He could not say what time TH came to the van.[133] He said that the complainant looked about seven, eight or nine, he didn’t know.[134] He said that TH had visited him probably three times in the last five or six years at the markets.[135] He said that TH and the complainant were playing in the back of his van tipping boxes up.[136] He denied playing any games with TH.[137] The complainant then came over from the face painting stall.[138] He thought that TH and the complainant must have been friends.[139] The police officer said that she was not clear as to how the complainant came to be in his van and the defendant said “I can’t I’m trying to remember it”.[140] After she had face painted, the complainant came over and it was the first time he had seen her.[141] The two girls were playing with each other throwing something to each other and then tipping up the box of toys.[142] The back door was open and he opened it right up and he could see in there and there was toys and crap everywhere and they were hiding under a white wrap.[143] A lady went and roused on them and they stopped.[144] The next thing he knew TH had left the other girl there and the defendant kept picking up the rest of the stuff and threw it in the back door.[145] The back door of the van might have been three quarters closed.[146] Later on, the man got there and grabbed her.[147] The man might have threatened him, he didn’t know.[148] He guessed the complainant was seven, eight, nine or 10.[149] He did not have much interaction with the complainant and did not play games with her.[150] He said that he had never seen the girl before.[151] He reiterated that the complainant and TH were hiding under a white doona when he went to the back.[152] He denied either of the girls ate anything whilst in the van.[153] He then said “hang on yes they did, the little one ate some fairy floss that TH had”.[154] He denied providing them with food but did get a bottle of water.[155] He admitted giving the complainant $5 to go and get a bottle of water and did not know if she gave him back any change.[156] He said that he was wearing shorts and a shirt at the market.[157] He said that he got changed out of long tracksuit pants early in the morning probably around 10.[158] He said he took his tracksuit pants off in the toilet block.[159] He said he didn’t actually change because he had his shorts on underneath.[160] He was sure that he took off his tracksuit pants in the toilet.[161] He denied playing games with the complainant and denied touching her in any way.[162]
  3. [43]
    He denied touching TH in any way.[163] He denied exposing any part of his body to the girls.[164] He denied that the complainant ever touched any part of his body or that TH touched him.[165] He denied brushing up against the girls or hugging them.[166] At that stage, the police informed the defendant that footage from the Rocklea Markets had been obtained. The interview was paused at 11:45am. The interview resumed at 11:55am. He looked at some screenshots. He denied being able to see the complainant.[167] He confirmed that the complainant was at the door.[168] He did not accept distinctly that he was playing games with the girls.[169] He did not accept distinctly he was handing something to TH.[170] He accepted he handed a toy to the complainant.[171] He denied hugging the complainant.[172] He did not distinctly admit that he called the complainant around the back of the vehicle.[173] He did not recall a time when he called the complainant away from TH.[174] He did not distinctly admit he spent most of his time with the girls.[175] He accepted he could have been talking.[176] He did not accept he hugged the complainant.[177] He denied play fighting with the complainant.[178] The defendant said he did not believe he told the complainant that she could go inside his van.[179] The defendant said the only reason the complainant hopped in the van was because of TH.[180] He denied play fighting with the girls.[181] He admitted that she was trying to fight him and trying to bite him and he was trying to hold her.[182] He said at no point was he in the van with her with the door shut. It was always open.[183] He did not remember changing his pants inside the van whilst she was there.[184] He would have had his shorts on anyway.[185] He would have said for her to face the other way or something like that.[186] He wouldn’t have just like got changed in front of her.[187] If he did get changed in the van, he would have told her to turn the other way.[188] He recalled giving her money for water but not for the fairy floss. He thought the fairy floss was from TH.[189] He accepted he paid for half of the complainant to get her arm painted.[190] He also seems to accept that at one point the complainant jumped inside the van, then got out, went to the face painter, came back to the van, went inside the van and he got inside the back of the van, closed the door completely wearing long pants and he then came out of the van in shorts.[191] He said that the shorts were under his tracksuit pants.[192] The complainant would not have seen anything because he made her face the other way.[193]

Other crown witnesses

Mr JK

  1. [44]
    In evidence-in-chief, Mr JK said the complainant was his daughter.[194] He attended the Rocklea Markets on 29 September 2019.[195] He and his partner did charity work and sold items on Sundays at the stall.[196] They arrived at the market at about 6:00am to 6:30am.[197] Stock was unloaded and they started sales.[198] It was busy that day.[199] The complainant was with them for most of the time but also went to the face painting tent.[200] At one stage, he became aware she’d gone to the face painting stall and he went looking for her and then went to the jumping castle but she was not there.[201] He started scanning and saw her in the back of the defendant’s black van.[202] The sliding door was open.[203] The complainant was sitting on a blanket in the van.[204] Mr JK went straight there.[205] She had a bottle of water and fairy floss with her.[206] He did not see anybody else but then saw a movement in the back of the van and an older man was there.[207] Mr JK asked the complainant “what are you doing here?” She told him she was waiting for somebody. The old man said something as well. He then took the complainant back to their stall and asked her what she was doing.[208] She seemed shell-shocked, hot and flustered and he asked his partner to ask her what had happened.[209]
  2. [45]
    In cross-examination, Mr JK said that after he took his daughter back to the stall they made a complaint to the police.[210] He also provided a statement to the police dated 4 October 2019. He accepted he asked his daughter whether the man had touched her and she said “we were just waiting for TH”.[211] He said he did see her inside the van but if he was about five metres either side of his position she would not have been visible.[212] He agreed that he tried to keep the situation calm.[213] He did not recall what he said to the old man and tried to be civil.[214] He denied that he said to the man “has she been spruiking for you” and he denied the man said “no, she’s not sold much”.[215] He did not see the man picking up toys in the van.[216] He agreed he got Ms JB to speak to the complainant to find out if she’d been touched.[217] He agreed he went back to the van and confronted the defendant angrily.[218] He denied threatening the defendant but asked him why the complainant had been in the van but there was no response.[219] He then went back to the complainant and had a further conversation with her and she told him the man had come over and commented on her face paint and took her to the van.[220] She told him he did not touch her.[221] She sat in the van because she was tired and then made a bed.[222] The man got changed in front of the van but she didn’t look.[223] Mr JK agreed it was a hot day.[224]

Ms JB

  1. [46]
    Ms JB is the girlfriend of Mr JK.[225] The complainant is Mr JK’s daughter.[226] In September/October 2019, they ran a stall at the Rocklea Markets on a Sunday selling brick-a-brac for a charity.[227] On 29 September 2019, Mr JK helped at the store and the complainant was there.[228] The complainant was at the stall but also at the face painting stall and the jumping castle.[229] The complainant was given $20 to $30 to get her face painted.[230] At one point, Mr JK went looking for her at about 11:00am.[231] They hadn’t seen her for about 30 minutes.[232] He came back with her.[233] Ms JB spoke to the complainant and she seemed confused, hot and flustered.[234]
  2. [47]
    In cross-examination, the witness said she made a statement to the police on 10 November 2019.[235] The complainant told her the man had given her a drink and fairy floss.[236] The complainant told her that the defendant did not cuddle or touch her.[237] She said she’d been playing with TH who the defendant said was his daughter.[238] She said the defendant got changed outside of the van.[239] At one stage, Ms JB went to the face painting stall with the complainant and got her face painted.[240] She said the complainant stayed with her the whole time and didn’t recall her wandering off.[241] She agreed it was pretty hot that day.[242]

Sharon Smithers

  1. [48]
    Sharon Smithers gave evidence that she ran the face painting stall at the Rocklea Markets.[243] She did this on a Sunday and had started in March 2018.[244] On 29 September 2019 she ran the stall.[245] She was placed near the entrance and the toilets and the jumping castle.[246] Exhibit 4 showed the stall. As to the van, she knows that the defendant operates that stall.[247] He sold bits and pieces there.[248] Ms Smithers said she arrived by about 5:30am and had set up the face painting stall by about 6:00am.[249] The defendant was there that day.[250] She saw the complainant a number of times during the day.[251] She couldn’t say if it was the girl in Exhibit 2.[252] The complainant came in early and had her face painted and paid $5 for this.[253] After this, she went back to her stall with her mother and father.[254] After this, Ms Smithers went to the defendant’s stall and the complainant came over because she wanted lipstick but Ms Smithers didn’t have any.[255] The complainant went and bought some lipstick and Ms Smithers gave her $1 for it.[256] The defendant also gave the complainant toys.[257] He told her she could come over to his stall and get some toys.[258] This was early on. The complainant then went to the jumping castle and became sweaty.[259] She came back to the face painting stall and Ms Smithers washed off the face paint and did another face paint for free.[260] Ms Smithers said it was a very busy day.[261] Later, the complainant came back with her father’s girlfriend who had her arm painted.[262] After this, the defendant gave the complainant $5 and Ms Smithers painted the complainant’s arm.[263] The defendant came in and commented on how the complainant’s face was nice but Ms Smithers said she was not sure if he commented on the complainant’s face or faces of other girls.[264] Ms Smithers didn’t observe any interactions between the defendant and the complainant.[265] At one point she looked up and saw two girls attacking the defendant and he had his hand out.[266]
  2. [49]
    In cross-examination, she agreed that the defendant gave the complainant some toys.[267] She agreed she didn’t hear any conversation about this.[268] She said that this particular day was her busiest day.[269] She didn’t know the defendant very well.[270] He’d been running his stall for about a month.[271] She agreed she provided a statement to the police dated 7 November 2019.[272] In the statement she said that the complainant came to the stall quite a lot and also watched her paint other children.[273] In the statement, she said the complainant was hanging around.[274] She denied the complainant had become a nuisance.[275] She agreed that the defendant was being very nice and generous towards the complainant and she didn’t think anything about it.[276] Later, a security guard spoke to her and she didn’t agree that the defendant lured her out of the face painting tent.[277] She couldn’t say, however, what he did in his area.[278] She agreed it was a busy thoroughfare.[279] She could see the defendant’s van and the side door open from where she sat but she couldn’t see the back part of the van.[280] She disagreed that she took the complainant back to her parent’s stall.[281] She thought it was a hot day.[282] She thought the kid was a “free range” kid.[283]

Defence case

Defence - no evidence

  1. [50]
    The defendant has not given or called evidence.  That is his right.  He is not bound to give or to call evidence.  The defendant is entitled to insist that the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a 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 prosecution. 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 prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier.  It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.[284]

Record of interview

  1. [51]
    That the defendant has done a record of interview does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him.  His interview is added to the evidence called for the prosecution.  As I have said, the prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
  2. [52]
    Often enough cases are described as ones of “word against word” but in a criminal trial it is not a question of my making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant.  The proper approach is to understand that the prosecution case depends upon me accepting that the evidence of the prosecution’s principal witness was true and accurate beyond reasonable doubt, despite the interview by the defendant; so I do not have to believe that the defendant is telling the truth in the interview before he is entitled to be found not guilty.[285]  
  3. [53]
    Where, as here, there is a defence interview, usually one of three possible results will follow:
  1. (a)
    I may think the defence interview is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, my verdict would be not guilty;

or

  1. (b)
    I may think that, although the defence interview was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, my verdict would be not guilty;

or

  1. (c)
    I may think that the defence interview should not be accepted.  However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt.  If I find the defence interview unconvincing, I should set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.[286]
  1. [54]
    Also during the course of the interview, a number of questions were asked by the police officers.  If the defendant did not agree to or in some way accept the contents of a question asked of him, the question cannot become any evidence against him. 
  2. [55]
    In the course of the interview, it is said, the defendant made statements which the prosecution relies on as pointing to his guilt. If I accept them as having been made by the defendant and as true, it is up to me to decide what weight I give them, and what I think they prove.[287] He also gave answers which I might view as indicating his innocence. I am entitled to have regard to those answers if I accept them, and to give them whatever weight I think appropriate, bearing in mind that they have not been tested by cross-examination. 
  3. [56]
    In relation to both the answers which the prosecution relies on as indicating guilt, and those which point to innocence, it is entirely up to me what use I make of them and what weight I give them.

Crown submissions[288]

  1. [57]
    The prosecutor submitted that the case is one of grooming and not actual procuring or indecent treatment. The offence is targeted at conduct in the relationship building phase with the intention of the child engaging in a sexual act in the future.
  2. [58]
    In this case, it is submitted having regard to the entirety of the defendant’s actions towards the complainant this shows that his actions were done with the intention of gaining the complainant’s trust and building a rapport with her so that he could procure her to engage in a sexual act that day or at a future date at the markets. It is submitted this is the only rational inference available.
  3. [59]
    The crown heavily relies on Exhibit 9, the CCTV footage as showing the multiple interactions with the complainant. During one particular interaction, he played with the complainant for about three minutes. It is submitted it also appears the defendant touched the complainant at about 9:00am. It is submitted that the footage shows that the defendant went to the face painting stall to specifically interact with the complainant. He also encouraged her to go back to his stall after TH had left.
  4. [60]
    It is relevant that the defendant called the complainant pretty and beautiful multiple times. It is also relevant that he gave her gifts and money.
  5. [61]
    The CCTV footage shows the van had blacked out windows and one could not see into the back part of the van. It is submitted that the defendant either encouraged or allowed a six year old child to stay in the van when he was not the father. He was not concerned about her welfare otherwise he would have taken her to find her parents. Allowing her to stay in the van after TH left was part of the grooming process.
  6. [62]
    The crown also submits that allowing the complainant to make a bed in the van is another link in the chain.
  7. [63]
    It is submitted that the events culminated with the defendant getting changed in the van while the complainant was there. This allows the court to be satisfied of the offence beyond reasonable doubt.
  8. [64]
    It is submitted that the defendant did not have the shorts under the tracksuit pants - this inference can be drawn from the footage. There was absolutely no need for him to get changed in the van while she was there. He said he always got changed in the toilets which were a short distance away. It is also relevant he did not get changed before 11:03am when the complainant was at the face painting stall.
  9. [65]
    It does not matter he told her to look away. The charge is not one of actual exposure. What is relevant was he took his pants off with her there in a confined area which was part of building her comfort in his presence. It was fortunate that the father turned up a short time later.
  10. [66]
    As to the defendant’s account, the crown submits the defendant told a number of lies in his record of interview as follows:
    1. He claimed that the complainant came over from the face painting stall after TH was dropped off. To the contrary, the CCTV footage shows multiple interactions with the complainant prior to TH arriving. The same applies to his claim that he did not speak to any children before TH arrived.
    2. He denied playing games with the complainant. To the contrary, the CCTV footage shows the defendant play fighting with the complainant and TH.
    3. He denied the complainant touched him. To the contrary, the footage showed that she did touch him a number of times.
    4. The defendant claimed he took his tracksuit pants off in the toilet block. This is a lie. The footage clearly showed that he took off the pants in the van. The crown submits this is on the threshold of being an Edwards lie.
  11. [67]
    It is submitted all of the lies go against the defendant’s credit and any potential memory issues do not explain the change of account in the interview.
  12. [68]
    Ultimately, the crown submits this is not just a case of suspicious or creepy behaviour. It was predatory behaviour with no innocent explanation.

Defence submissions[289]

  1. [69]
    The defence submits that in the present case there are none of the usual indicia of grooming such as sexual discussions, invitations to engage in sexual conduct, the sending of explicit images etc.
  2. [70]
    It is submitted that it has not been proved that the defendant had a sexual interest in this child.
  3. [71]
    There is no doubt that he did take an interest in the child and the child took an interest in him. But there is no evidence this interest was sinister. The child was not shown indecent material. He did not make indecent or sexual suggestions to the child. He did not touch her in any sexual way. This can be contrasted with the usual grooming case. Even if his conduct was suspicious or even inappropriate, this falls well short of proof of sexual interest.
  4. [72]
    There was no legal requirement for him to take the child back to the parents.
  5. [73]
    It is submitted that the crown cannot exclude beyond reasonable doubt the hypothesis that the defendant liked the company of children, such as the complainant, in a non-sexual way. There is no evidence to support the crown’s contention this was a sinister relationship.
  6. [74]
    There is no evidence the defendant wanted to engage the child in a sexual act. There was no conduct by the defendant which could even be described as remotely sexual.
  7. [75]
    It is relevant that at all times one door of the van was kept open and he never closed all doors of the van. This would be expected if he had sexual desires.
  8. [76]
    Also, the child got into the van voluntarily and the defendant did not tell her to get in the van nor did he put her in there.
  9. [77]
    As to him changing his pants, the defence submits:
    1. Even if it is mildly inappropriate, there was no evidence he exposed his genitals to her. In any event, it was a hot day which explains why he changed.
    2. The defendant told the child to look the other way which she did.
    3. The side door was open.
    4. The child was free to leave the van at any stage.
  10. [78]
    There was no reasonable opportunity for him to commit a sexual act in the back of the van. This is because it was very busy at the markets that day. It was in broad daylight and everything was visible. Passers-by would be able to see into the van. Also the Asian man seemed to be constantly present. If he committed a sexual act on the child, there was a high risk of him being caught. This makes it inherently unlikely he had the requisite intention.
  11. [79]
    The defence submits it is also relevant that TH was also alone with the defendant at some point and spent time in the van. She had been with him previously. There has never been any police complaint concerning TH.   
  12. [80]
    The way he interacted with TH is illustrative of the way the defendant enjoys the company of children.
  13. [81]
    Further, there was no evidence he was going to see the child again or have a continuing relationship with her. He was going to leave the markets by 12:15pm. The father got the child just after 11:00am so the defendant had little time left to act on any alleged sexual intention. Also, he had already been with her on a number of occasions since 7:30am and nothing had yet happened.
  14. [82]
    Any suspicious behaviour is explained as an elderly man entertaining a bored girl hanging around the face painting stall and his stall, unsupervised.
  15. [83]
    It is submitted that Ms Smithers confirmed that the defendant gave the complainant some toys because she had bought some lipstick for Ms Smithers. Also, Ms Smithers said at one point the defendant had his arm outstretched to stop the complainant from play fighting. She also did not think the defendant lured the complainant to his stall. She also confirmed it was a hot day and a lot of people walked past the defendant’s stall. 
  16. [84]
    Mr JK also gave evidence that the complainant told him they were just waiting for TH. Also the defendant got changed but she did not look. He confirmed it was a hot day.
  17. [85]
    Ms JB gave evidence that the complainant told her she had not been cuddled or touched by the defendant.
  18. [86]
    The defence also points out that the defendant voluntarily underwent the record of interview. Also, Officer Smith confirmed it was a hot day. She also confirmed that the Asian man was present at the stall most of the time. Also TH’s grandmother was there for some of the time.
  19. [87]
    The defence also submits that what the defendant did was inconsistent with the alleged intention e.g. he opened the doors to the van when they were closed by the girls. Also witnesses were always present and his stall was not neglected.
  20. [88]
    As to the record of interview, the defence submits the so-called lies are readily explained by the defendant having a poor memory, being confused and having a hearing problem. Specific examples of this are given at paragraphs 40-44 of the defence submissions. It is submitted that the allegations were put to him in a piecemeal fashion. The court should bear in mind he had only completed year seven at school and is a simple and unsophisticated man which explains his poor performance in the interview.
  21. [89]
    As to the alleged lie about his changing clothes in the toilets, he was most likely confused or mistaken about this. But even if it was a deliberate lie, it cannot be an Edwards lie as he was told this was a child stealing investigation and further he may well have lied because he was embarrassed or he may have thought that admitting getting changed in the van would increase the likelihood of being charged.
  22. [90]
    The defence submits that the answers given in the interview are so unreliable no weight should be attached to them.
  23. [91]
    It is also submitted the CCTV footage shows that the complainant was free to go as and when she pleased from the van and stall and shows that the stall was not left unattended.
  24. [92]
    In conclusion, the defence submits that to conclude the defendant had the requisite intention is a mere matter of speculation or conjecture.[290] It is submitted that the worst that can be said about the defendant’s conduct is that it was suspicious. It is possible he held the requisite intention but a mere possibility is not enough in a criminal trial. There is an entirely innocent explanation for his conduct which cannot be excluded i.e. he is a friendly person who likes the company of children in a non-sexual way.
  25. [93]
    There was a lack of opportunity to engage in a sexual act. The defence submits this is a case of “compounding improbabilities”.[291]    
  26. [94]
    As a result, the defendant should be found not guilty.                      

Findings

  1. [95]
    In reaching my decision, I have had regard to all of the evidence, the submissions of counsel and the relevant law. 
  2. [96]
    I reject the defendant’s account and do not find him to be a witness of credit.
  3. [97]
    I formed the view that he was evasive during the police interview. In particular, I found him to be evasive on the following:
  1. He was evasive about why the complainant came to his van.[292]
  2. He was evasive about what she looked like.[293]
  3. He was evasive about whether the complainant got a toy.[294]
  4. He was evasive as to his interactions with her.[295]
  5. He was evasive about the chasing game.[296]
  6. He was evasive about changing in the van.[297]
  1. [98]
    I have had regard to the submissions made by the defence as to him being confused and forgetful. I do not accept those submissions. I formed the view that the defendant well knew why the police were asking him questions. He did claim to be forgetful at the start but his memory became much better over time. I also bear in mind the interview was only four days after the alleged offence. He would have had good reason to remember the events of the day as he had been confronted by Mr JK.     
  2. [99]
    I also consider he lied to the police in the following respects:
  1. He claimed that the complainant came to his stall after TH was there.[298] This is clearly incorrect. The CCTV footage shows he had dealings with the complainant for almost two hours before TH arrived.
  2. He denied speaking to any children before TH arrived.[299] This is not correct in light of the CCTV footage. He was clearly interacting with the complainant prior to the arrival of TH.
  3. He claimed he did not know how she came to his stall.[300] This is not correct as he later accepted he offered the complainant a free toy and gave it to her.[301]
  4. He claimed the back door of the van was not fully closed,[302] and denied closing the door himself.[303] This is contradicted by the CCTV footage.
  5. He claimed he did not play games (tiggy/chasey or play flighting) with the complainant.[304] This is contradicted by the CCTV footage.
  6. He claimed that the complainant had the fairy floss that TH had and denied providing food to the complainant.[305] This is wrong when one considers the complainant’s evidence, TH’s evidence and the defendant’s later admission.[306]
  7. He claimed he got changed out of his tracksuit pants at around 10:00am (early in the morning)[307] and that he took the tracksuit pants off in the toilet block as he was dying to go to the toilet.[308] This is incorrect as the CCTV footage shows he changed in the van.[309]
  8. He claimed he had his shorts on underneath the tracksuit pants.[310] This is not true. I find he carried his shorts into the van before he got changed.[311]
  1. [100]
    I am satisfied all of the above were lies. All of these lies adversely affect his credibility and reliability. With the exception of one of them, I do not use these as evidence of guilt.[312]
  2. [101]
    However, that is not the end of the matter. Merely because I reject the defendant’s evidence does not mean there is an automatic conclusion of guilt. I need to go back to the crown case to see whether the elements of the charge have been proved beyond reasonable doubt.
  3. [102]
    I watched carefully the section 93A statements and the pre-recorded evidence of the complainant and TH. In my view, both were honest and reliable and endeavoured to tell the truth. I accept their accounts of what happened.
  4. [103]
    If there is any conflict in the evidence, I reject the defendant’s account and accept the accounts given by the crown witnesses. They were broadly consistent. 
  5. [104]
    Also I note that much of what they said was supported by admissions made by the defendant:[313]
  1. He admitted seeing the complainant at the face painting stall.[314]
  2. He admitted the complainant was told she could go to his van.[315]
  3. He admitted they were chasing each other.[316]
  4. He admitted he said she looked pretty.[317]
  5. He admitted he got her fairy floss.[318]
  6. He admitted he gave her games.[319]
  7. He admitted she tried to bite him.[320]
  8. He admitted he paid for half the face painting.[321]
  9. He admitted changing his pants in the van.[322]
  1. [105]
    Having said this, the crown case is substantially a circumstantial case, certainly on the question of intent.
  2. [106]
    Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw or heard. Both direct and circumstantial evidence are to be considered.
  3. [107]
    To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.[323]
  4. [108]
    If there is any reasonable possibility consistent with innocence, it is my duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.[324]
  5. [109]
    In this case, I make the following factual findings:
  1. The defendant saw the complainant early on in the day at the face painting stall;
  2. I find the defendant was attracted to her. He kept going back to the face painting stall when she was there. He called her beautiful and pretty. He often looked over in the direction of the face painting stall.
  3. The defendant offered her a free toy. He invited her to his stall.
  4. I also find the defendant invited the complainant to go into his van.
  5. He paid for half the painting on one occasion. He gave her money to buy water and fairy floss. He played “tiggy” games with her.
  6. This conduct was designed to get her into the van.
  7. The complainant got into the van a number of times. The defendant got into the van when she was there on five occasions. He also shut the door towards the end.
  8. It ultimately got to the point that he actually took his tracksuit pants off when the two of them were alone together in the van. I find he did not have his shorts on underneath as he claimed. He told her he was going to change and did tell her to look away, but of course she may not have. Of course by saying he was getting changed drew her attention to that fact.
  1. [110]
    Having made these factual findings, the next question is- what was the defendant’s intention in carrying out this conduct?
  2. [111]
    In this case, I consider that the crown has excluded any reasonable explanation consistent with innocence. The possible explanation is that the defendant merely engaged in the conduct with the complainant as he had a friendly interest in her and there was no sexual intent.
  3. [112]
    I did not consider this explanation reasonable.
  4. [113]
    I rely on the following circumstances:
  1. The defendant was not previously known to the complainant.
  2. The defendant was 68 years old and the complainant was only six years old.
  3. He spent a considerable amount of time interacting with her. This included, I conclude, inviting her to his stall and complimenting her calling her pretty and beautiful a number of times - more than would be needed to compliment her on the face painting. I consider in context these compliments show a sexual interest in her. Of course I do not use this as propensity evidence but only as evidence it is more likely he committed the offence charged.[325]
  4. I also consider on the totality of the evidence he was overly interested in her. He watched her intently many times and went over to the face painting stall many times that day to specifically interact with her. This is very unusual when one considers the age difference and the fact he did not know her.        
  5. He had no legitimate reason for this child (a stranger) to be in the back of his van on a number of occasions. He certainly did not have the permission of the child’s parents. The excuse of picking up the toys had long past. He went into the van five times when she was there.
  6. He closed the rear door with her in the van.[326]
  7. The defendant was in the van with her by himself for a reasonably long period at one point.[327]
  8. He took off his pants in the van when the girl was there by herself and told her he was going to.[328] There was no reason for him to do this there. He could have gone elsewhere. The toilets were close by. I consider this was part of intentional grooming behaviour to win the trust of the girl. It was at the end of some hours’ deliberate contact with her. Taking off pants can be said to be an intimate act. This was in the context of the complainant having made a bed in the van.    
  9. He gave her money - money to a stranger.[329]
  10. He lied to the police when he said he did not take his pants off in the van and went into some detail about changing in the toilets. I consider this is an Edwards[330] lie. Having considered all other possible explanations (such as panic or confusion or fear of charge), I consider it has been established that he told the lie deliberately because he knew he had committed the offence and realised his guilt i.e. he knew he had a sexual intention regarding the girl. I consider the lie material to the charge.
  1. [114]
    In all of the circumstances, I am satisfied beyond reasonable doubt that the defendant engaged in the conduct particularised by the crown.
  2. [115]
    He gave her money, he persuaded her to go to his stall, he encouraged her to enter the van, he paid for face painting and ultimately he took his pants off when they were alone together in the van after he had closed the rear door.
  3. [116]
    This conduct occurred over a three and a half hour period at the markets. I conclude it was designed to ultimately be alone with her in the rear of the van.
  4. [117]
    I conclude beyond reasonable doubt on all of the evidence it was with an intent to facilitate the complainant to engage in a sexual act i.e. to make it easier or less difficult to occur. This is the only rational inference available. 
  5. [118]
    The sexual act need not be particularised but it was most likely to make it easier or less difficult to touch her or for her to touch him, for him to touch himself, for her to touch herself, to expose his body to the complainant and/or for her to expose her body to him. This is also in the context that he had given her money, he had closed the rear van door, he had changed his pants with her alone in the back and she had made a bed. The fact she happened to look away does not matter as the essence of the charge is grooming the complainant i.e. making it easier or less difficult for the sexual act to occur.  
  6. [119]
    The fact it did not happen is not to the point. The offence provision is designed to punish behaviour which is designed by an offender to lead up to that point. As was said by the New South Wales Court of Criminal Appeal in Tector v R,[331] as to the Commonwealth offence of grooming,[332] the mischief is to target adult offenders who seek to win the trust of the child as a first step towards future sexual abuse to the child.
  7. [120]
    As was said in the Explanatory Memorandum to the Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Bill 2012 (Qld) the creation of the new offence will capture wide ranging behaviour that is designed to facilitate the later procurement of a child for sexual activity. This allows for the potential for police to intervene before a sexual act or sex-related activity takes place”.        
  8. [121]
    I did not accept the defence argument that it would have been far too brazen for him to have carried out his intention in this place. The fact is, on occasions sexual offenders are brazen and/or opportunistic in their conduct.[333] Also, I bear in mind the windows of the van were dark and unless you were directly opposite the side door you could not see into the van. Also, Ms Smithers could not see into the rear part of the van. The defendant had plenty of time until 12:15pm to carry out a sexual act. It most likely did not happen because of the fortunate intervention of the father.
  9. [122]
    I also did not place weight on the defence argument that the defendant had not groomed TH or touched her. On my viewing of the footage he was not attracted to her - he was to the complainant. 
  10. [123]
    I am satisfied the crown has proved the elements of the charge beyond reasonable doubt. 

Conclusion          

  1. [124]
    I find the defendant guilty.

Footnotes

[1]Zaburoni v R [2016] HCA 28; (2016) 256 CLR 482 at [8].

[2][2013] VSCA 129; 45 VR 64; 233 A Crim R 83 at [65].

[3]Section 218B(4) of the Code.

[4][1995] QCA 161; [1996] 1 Qd R 323 at pp 325 and 327.

[5]The Australian Concise Oxford Dictionary.

[6]Section 615B(1) of the Code.

[7]Section 615B(3) of the Code.

[8]Section 615C(3) of the Code.

[9][1998] HCA 68; (1998) 197 CLR 250 at [28].

[10][2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334.

[11]Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334.

[12]Section 21AW of the Evidence Act 1977 (Qld).

[13]Butera v DPP (1987) 164 CLR 180 at 188; [1987] HCA 58.

[14]Exhibit 1.

[15]Section 93A transcript (complainant) p 4.43-46.

[16]Section 93A transcript (complainant) p 5.10.

[17]Section 93A transcript (complainant) p 5.56.

[18]Section 93A transcript (complainant) p 6.45-47.

[19]Section 93A transcript (complainant) p 7.48-49.

[20]Section 93A transcript (complainant) p 8.

[21]Section 93A transcript (complainant) p 9.30-35.

[22]Section 93A transcript (complainant) p 12.31-32.

[23]Section 93A transcript (complainant) p 13.52-53.

[24]Section 93A transcript (complainant) p 14.32-33.

[25]Section 93A transcript (complainant) p 16.45.

[26]Section 93A transcript (complainant) p 18.24-25.

[27]Section 93A transcript (complainant) p 19.17.

[28]Section 93A transcript (complainant) p 19.52.

[29]Section 93A transcript (complainant) p 20.39.

[30]Section 93A transcript (complainant) p 21.3.

[31]Section 93A transcript (complainant) p 21.7.

[32]Section 93A transcript (complainant) p 21.20.

[33]Section 93A transcript (complainant) p 22.28.

[34]Section 93A transcript (complainant) p 22.43.

[35]Section 93A transcript (complainant) p 22.56.

[36]Section 93A transcript (complainant) p 23.1.

[37]Section 93A transcript (complainant) p 23.46.

[38]Section 93A transcript (complainant) p 24.7-8.

[39]Section 93A transcript (complainant) p 24.52-56.

[40]Section 93A transcript (complainant) p 24.47.

[41]Section 93A transcript (complainant) p 26.10.

[42]Section 93A transcript (complainant) pp 27.44-28.1.

[43]Section 93A transcript (complainant) p 28.10.

[44]Pre-recorded evidence transcript p 8.4.

[45]Pre-recorded evidence transcript p 10.1-11.

[46]Pre-recorded evidence transcript p 10.23.

[47]Pre-recorded evidence transcript p 11.20.

[48]Pre-recorded evidence transcript p 11.25.

[49]Pre-recorded evidence transcript p 12.5-6.

[50]Pre-recorded evidence transcript p 13.6.

[51]Pre-recorded evidence transcript p 13.10-27.

[52]Pre-recorded evidence transcript p 14.1.

[53]Pre-recorded evidence transcript p 14.17-18.

[54]Pre-recorded evidence transcript p 14.35.

[55]Pre-recorded evidence transcript p 15.5.

[56]Pre-recorded evidence transcript p 15.11.

[57]Pre-recorded evidence transcript p 15.21.

[58]Pre-recorded evidence transcript p 15.41-42.

[59]Pre-recorded evidence transcript p 16.39.

[60]Pre-recorded evidence transcript p 16.43.

[61]Pre-recorded evidence transcript p 17.20.

[62]Pre-recorded evidence transcript p 17.43.

[63]Pre-recorded evidence transcript p 18.1-15.

[64]Pre-recorded evidence transcript p 18.30-31.

[65]Pre-recorded evidence transcript p 19.1.

[66]Pre-recorded evidence transcript p 19.6-7.

[67]Pre-recorded evidence transcript p 20.4-5.

[68]Pre-recorded evidence transcript p 20.15-17.

[69]Pre-recorded evidence transcript p 21.1-3.

[70]Pre-recorded evidence transcript p 23.11-14.

[71]Pre-recorded evidence transcript p 23.26.

[72]Pre-recorded evidence transcript p 24.1-3.

[73]Pre-recorded evidence transcript p 25.16.

[74]Exhibit 5.

[75]Section 93A transcript (TH) pp 3.50 and 4.39.

[76]Section 93A transcript (TH) pp 4.50-5.1.

[77]Section 93A transcript (TH) p 5.50.

[78]Section 93A transcript (TH) p 6.9.

[79]Section 93A transcript (TH) p 9.6-7.

[80]Section 93A transcript (TH) p 9.21.

[81]Section 93A transcript (TH) p 9.43.

[82]Section 93A transcript (TH) p 11.31.

[83]Section 93A transcript (TH) p 12.20.

[84]Section 93A transcript (TH) p 18.1.

[85]Section 93A transcript (TH) p 21.43-44.

[86]Section 93A transcript (TH) p 23.28.

[87]Pre-recorded evidence transcript p 28.33.

[88]Pre-recorded evidence transcript p 30.46.

[89]Pre-recorded evidence transcript p 31.4.

[90]Pre-recorded evidence transcript p 32.10-12.

[91]Pre-recorded evidence transcript p 32.41-45.

[92]Pre-recorded evidence transcript p 33.25.

[93]Pre-recorded evidence transcript p 34.9.

[94]Pre-recorded evidence transcript p 35.1-2.

[95]Pre-recorded evidence transcript p 35.8.

[96]Pre-recorded evidence transcript p 36.32.

[97]Pre-recorded evidence transcript p 37.11-12.

[98]Pre-recorded evidence transcript p 37.20.

[99]Pre-recorded evidence transcript p 38.34.

[100]Pre-recorded evidence transcript p 39.1.

[101]Pre-recorded evidence transcript p 39.10.

[102]Pre-recorded evidence transcript p 39.20.

[103]The aid is Exhibit D for identification.

[104]There is no other rational inference available. The only person at the face painting stall the defendant was interested in was the complainant.

[105]Exhibit 11. Exhibit E for identification is the transcripts.

[106]Transcript day 2 p 15.39-40.

[107]Transcript day 2 pp 17.5-18.10.

[108]Transcript day 2 pp 18.12-19.4.

[109]Transcript day 2 p 19.39-45.

[110]Transcript day 2 pp 20.6-21.8.

[111]Transcript day 2 p 21.23-33.

[112]Transcript day 2 pp 21.45-23.43.

[113]Transcript day 2 pp 23.45-24.6.

[114]Transcript day 2 p 25.15.

[115]Transcript day 2 pp 25.19-26.3.

[116]Transcript day 2 p 26.14-21.

[117]Transcript day 2 p 26.26-31.

[118]Transcript day 2 pp 27-28.

[119]Transcript day 2 p 29.

[120]Transcript day 2 p 30.1-11.

[121]Transcript day 2 p 30.13-14.

[122]Transcript day 2 p 31.

[123]Transcript day 2 pp 31.38-32.6.

[124]Transcript day 2 p 32.18-19.

[125]Transcript day 2 p 32.30-40.

[126]Exhibit 11. The transcript is Exhibit E for identification.

[127]Transcript p 18.50.

[128]Transcript p 16.5.

[129]Transcript p 16.43-44.

[130]Transcript pp 16.55-17.5.

[131]Transcript p 34.

[132]Transcript p 37.56.

[133]Transcript p 42.7.

[134]Transcript p 43.35.

[135]Transcript p 44.40.

[136]Transcript p 45.6.

[137]Transcript p 46.39.

[138]Transcript p 47.11.

[139]Transcript p 51.46.

[140]Transcript p 51.56.

[141]Transcript p 52.48.

[142]Transcript p 53.

[143]Transcript p 53.55-58.

[144]Transcript p 55.50.

[145]Transcript p 56.17-18.

[146]Transcript p 57.56.

[147]Transcript p 60.34.

[148]Transcript p 61.53.

[149]Transcript p 63.22.

[150]Transcript p 63.32-41.

[151]Transcript p 65.56.

[152]Transcript p 70.1.

[153]Transcript p 71.56.

[154]Transcript p 72.11.

[155]Transcript p 72.36.

[156]Transcript p 73.1.

[157]Transcript p 74.44.

[158]Transcript p 76.31.

[159]Transcript p 76.57.

[160]Transcript p 77.37.

[161]Transcript p 78.6.

[162]Transcript p 78.51.

[163]Transcript p 78.55.

[164]Transcript p 79.13.

[165]Transcript p 79.31-43.

[166]Transcript p 83.12.

[167]Transcript p 88.10.

[168]Transcript p 88.20.

[169]Transcript p 88.36.

[170]Transcript p 89.9.

[171]Transcript p 89.40.

[172]Transcript p 90.5.

[173]Transcript p 90.24.

[174]Transcript p 90.40.

[175]Transcript p 92.26.

[176]Transcript p 92.55.

[177]Transcript p 93.55.

[178]Transcript p 94.15.

[179]Transcript p 98.52.

[180]Transcript p 99.10.

[181]Transcript p 99.28.

[182]Transcript p 103.23.

[183]Transcript p 103.38.

[184]Transcript p 104.49.

[185]Transcript p 105.12.

[186]Transcript p 105.45.

[187]Transcript p 106.3.

[188]Transcript p 108.35.

[189]Transcript p 109.10.

[190]Transcript p 115.16.

[191]Transcript p 118.7-18.

[192]Transcript p 118.47.

[193]Transcript p 118.55.

[194]Transcript day 2 p 34.3.

[195]Transcript day 2 p 34.6.

[196]Transcript day 2 p 34.10.

[197]Transcript day 2 p 34.40.

[198]Transcript day 2 p 34.44.

[199]Transcript day 2 p 35.4.

[200]Transcript day 2 p 35.

[201]Transcript day 2 p 35.40-43.

[202]Transcript day 2 p 36.24.

[203]Transcript day 2 p 36.34.

[204]Transcript day 2 p 36.39.

[205]Transcript day 2 p 36.44.

[206]Transcript day 2 p 36.46-47.

[207]Transcript day 2 p 37.16.

[208]Transcript day 2 p 37.30-36.

[209]Transcript day 2 p 38.1-4.

[210]Transcript day 2 p 38.38.

[211]Transcript day 2 p 39.1.

[212]Transcript day 2 p 39.34.

[213]Transcript day 2 p 39.43.

[214]Transcript day 2 p 40.5.

[215]Transcript day 2 p 40.11.

[216]Transcript day 2 p 40.23.

[217]Transcript day 2 p 40.45-47.

[218]Transcript day 2 p 41.29.

[219]Transcript day 2 p 41.39.

[220]Transcript day 2 p 42.27.

[221]Transcript day 2 p 42.42.

[222]Transcript day 2 p 42.42.

[223]Transcript day 2 p 42.43.

[224]Transcript day 2 p 43.24.

[225]Transcript day 2 p 44.41.

[226]Transcript day 2 p 44.45.

[227]Transcript day 2 p 45.2.

[228]Transcript day 2 p 45.20.

[229]Transcript day 2 p 45.36-39.

[230]Transcript day 2 p 45.45.

[231]Transcript day 2 p 46.7.

[232]Transcript day 2 p 46.12.

[233]Transcript day 2 p 46.14.

[234]Transcript day 2 p 46.19.

[235]Transcript day 2 p 46.36.

[236]Transcript day 2 p 47.15.

[237]Transcript day 2 p 47.24.

[238]Transcript day 2 p 47.31.

[239]Transcript day 2 p 47.33.

[240]Transcript day 2 p 47.45.

[241]Transcript day 2 p 48.16.

[242]Transcript day 2 p 48.43.

[243]Transcript day 2 p 49.37.

[244]Transcript day 2 p 49.42.

[245]Transcript day 2 p 49.47.

[246]Transcript day 2 p 50.9-11.

[247]Transcript day 2 p 51.9.

[248]Transcript day 2 p 51.12.

[249]Transcript day 2 p 51.26-28.

[250]Transcript day 2 p 51.30.

[251]Transcript day 2 p 51.36.

[252]Transcript day 2 p 52.12.

[253]Transcript day 2 p 52.26-34.

[254]Transcript day 2 p 52.39.

[255]Transcript day 2 p 53.12.

[256]Transcript day 2 p 53.15.

[257]Transcript day 2 p 53.19.

[258]Transcript day 2 p 53.24.

[259]Transcript day 2 p 53.36.

[260]Transcript day 2 p 53.35-39.

[261]Transcript day 2 p 53.42.

[262]Transcript day 2 p 53.45.

[263]Transcript day 2 p 54.1.

[264]Transcript day 2 p 54.5-7.

[265]Transcript day 2 p 54.12.

[266]Transcript day 2 p 54.19-39.

[267]Transcript day 2 p 55.41.

[268]Transcript day 2 p 55.43.

[269]Transcript day 2 p 56.3.

[270]Transcript day 2 p 56.5.

[271]Transcript day 2 p 56.9.

[272]Transcript day 2 p 56.28.

[273]Transcript day 2 p 57.3-4.

[274]Transcript day 2 p 57.16.

[275]Transcript day 2 p 57.39.

[276]Transcript day 2 p 57.45.

[277]Transcript day 2 p 58.35-38.

[278]Transcript day 2 p 58.42.

[279]Transcript day 2 p 59.5.

[280]Transcript day 2 p 59.17.

[281]Transcript day 2 p 59.25.

[282]Transcript day 2 p 59.36.

[283]Transcript day 2 p 59.46.

[284]Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 at [34], [51] and [67]. 

[285]R v E (1995) 89 A Crim R 325 at 330.

[286]R v Armstrong [2006] QCA 158 at [34] and in R v McBride [2008] QCA 412 at [29].

[287]Burns v R [1975] HCA 21; (1975) 132 CLR 258 at 261-262.

[288]Exhibit H for identification.

[289]Exhibit I for identification.

[290]With reference to R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [55].

[291]Pell v R [2020] HCA 12; (2020) 94 ALJR 394 at [118]-[119].

[292]Transcript pp 47 and 51.52.

[293]Transcript p 62.30.

[294]Transcript p 65.

[295]Transcript p 73.

[296]Transcript pp 101-102.

[297]Transcript pp 104-107.

[298]Transcript pp 15, 17.55 and 40.45.

[299]Transcript p 41.52.

[300]Transcript pp 51.20-52.1.

[301]Transcript p 64.

[302]Transcript p 57.50.

[303]Transcript p 58.25.

[304]Transcript pp 63.40, 78.45 and 94.10.

[305]Transcript p 72.32.

[306]Transcript p 109.30.

[307]Transcript p 76.30.

[308]Transcript p 76.55-77.

[309]I will return to this lie later.

[310]Transcript pp 77.35.

[311]This was not really disputed by the defence.

[312]Zoneff v R [2000] HCA 28; (2000) 200 CLR 234 at [23].

[313]When I say admissions they are of the conduct only and not the intent.

[314]Transcript p 48.30.

[315]Transcript p 98.5.

[316]Transcript p 99.50

[317]Transcript p 49.20.

[318]Transcript p 109.

[319]Transcript p 112.20.

[320]Transcript p 112.55.

[321]Transcript p 115.12.

[322]Transcript p 118.55.

[323]Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 578.

[324]Chamberlain v R (No 2) [1983] HCA 7; (1983) 153 CLR 521 at 536.5.

[325]HML v R [2008] HCA 16; (2008) 235 CLR 502 at [512] and Bauer v R [2018] HCA 40; (2018) 92 ALJR 846 at [48]-[49].

[326]Exhibit 9 CCTV footage.

[327]10:39 to 10:45 see exhibit 9 (Exhibit D) and again from 11:03 until 11:04 when he takes his tracksuit pants off.

[328]This has been established by the complainant’s evidence and the CCTV footage.

[329]Admission by defendant and complainant’s evidence.

[330]Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 209.

[331][2008] NSWCCA 103; 186 A Crim R 133.

[332]This has some similarities - see section 474.27 Criminal Code 1995 (Cth). 

[333]See e.g. Hughes v R [2017] HCA 20; (2017) 263 CLR 338 at [62] and [159].

Close

Editorial Notes

  • Published Case Name:

    The Queen v Douglas Colin Cunningham

  • Shortened Case Name:

    The Queen v Cunningham

  • MNC:

    [2020] QDC 118

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    19 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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