R v P[2020] QDC 197

DISTRICT COURT OF QUEENSLAND

1. [1]
   P is charged that on the 17th of November 2018 at Roma, in the State of Queensland, he unlawfully and indecently dealt with HC, a child under 16 years. To this charge he says that he is not guilty. On the 7th of July 2020 a no jury order was made. Accordingly, it is my duty to determine on the evidence whether he is guilty or not guilty. In determining this matter, I may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury. Any finding or verdict has the same effect as a finding or verdict of a jury: see section 615C(1) of the Criminal Code.

2. [2]
   The principles of law which I have applied and the findings of fact upon which I have relied are set out in these reasons: see section 615C(3). The defendant is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. In order to discharge its burden of proof, the prosecution must prove beyond reasonable doubt that the defendant is guilty. That must be proved on the evidence. I adopt, with respect, the principles set out by Smith DCJA in R v MMH [2020] QDC 70 at 10. 

3. [3]
   The defendant elected not to give or call evidence. That is his right. His decision does not alter the burden of proof, which remains on the prosecution. Nor is it evidence or any form of admission. It proves nothing at all and is of no significance in determining whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

4. [4]
   The prosecution called five witnesses: namely, the complainant, each of her parents, SC and JC, as well as family friends, BC and WC. The complainant’s evidence was given by way of video recording of her interview with the police and the pre-recording of her evidence. As I stated in the course of the hearing, I am conscious of the instructions which, pursuant to the Evidence Act, must be given by a judge to a jury in relation to pre-recorded evidence and I have acted consistently with those instructions. I am also conscious that use of the recording of the child’s interview with the police is a routine way of presenting the evidence. WC gave evidence by way of videolink. That was with the consent of defence counsel. I attach no significance to the fact that her evidence was given in that way.

5. [5]
   The evidence included evidence of preliminary complaint made by the complainant. Proof of what the complainant said is not proof of what happened, but the consistency or otherwise between her evidence and her preliminary complaint may affect the assessment of the complainant’s credibility or reliability. Whilst there is nothing in the preliminary complaint evidence which would give me cause for concern in relation to the complainant’s evidence, it is unnecessary for me to descend into the detail because there is, in any event, no challenge to the credibility or reliability of the complainant’s evidence.

6. [6]
   There was evidence of the complainant’s distressed condition following the incident in question. That is of no material assistance in this case. The defence does not challenge the complainant’s evidence about the incident. In particular, it does not challenge that the defendant came into her bedroom in the early hours of the morning, got into the bed where she was trying to sleep and positioned himself close to her and touched her by placing his hand on her hip and his head on her chest. The contest is whether, in the circumstances, that constitutes indecent dealing. It is completely understandable that a girl, such as the complainant, being confronted with a mature man, whom she had barely met, in her bed in the early hours of the morning, close to and, indeed, touching her, would be perturbed to the point of distress. That is so whether or not she had been indecently dealt with.

7. [7]
   Defence counsel did not cavil with the proposition that his client had, on any view, acted inappropriately and should be ashamed of himself. It is unsurprising that he was ultimately escorted from the house. The distressed condition evidence is unhelpful because the question is not whether a distressing incident occurred, but whether that incident is properly characterised as involving the criminal offence of indecent dealing.

8. [8]
   In order to prove its case, the prosecution must establish the following elements beyond reasonable doubt. First, that the defendant dealt with the complainant. The term “deals with” includes touching and, in this case, the prosecution particularised its case as alleging that the defendant placed his hand on the complainant’s hip area and his head on her chest area. The complainant gave evidence, which I accept, that the defendant so touched her and the defence does not challenge that.

9. [9]
   Second, it must be established that the dealing was indecent. The word “indecent” bears its ordinary everyday meaning; that is, what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstance. Whether the touching was indecent was the issue of controversy between the prosecution and defence and will be discussed in greater detail later in these reasons.

10. [10]
    Thirdly, the dealing must be established to be unlawful. The defence did not suggest that there is any basis upon which the dealing, if indecent, could nevertheless be seen to be lawful. Because, in the course of cross-examination, the complainant said that she was unsure if the defendant was asleep, I asked defence counsel whether a section 23(1)(a) defence was raised. Defence counsel said that it was not and I agree. Although the defendant might have fallen asleep at some point, the evidence of the complainant is of the defendant touching her only a matter of seconds after he got into the bed. That, in my view, negatives any possibility that the touching was an unwilled act done whilst the defendant was asleep. The defence raised the possibility of the defendant, thereafter, having fallen asleep in advancing its argument in relation to whether the dealing was indecent. I will return to that later. There is, I am satisfied, no basis upon which the dealing, if indecent, was lawful.

11. [11]
    Fourthly, the complainant must have been under 16. The evidence established that she was so and that is not in controversy.

12. [12]
    The decisive issue is, therefore, whether the dealing was indecent. The prosecution accepted that in order to prove indecency in the relevant sense it must establish either that (1) there was a sexual connotation to the dealing or (2) there was some intention on behalf of the defendant to obtain some form of sexual gratification from the dealing.

13. [13]
    Insofar as the first of those is concerned, there may be something about a particular dealing which unequivocally gives it a sexual connotation. In the case of a dealing by touching, that might arise by reason of the part of the body of the complainant that has been touched and/or the part of the body of the defendant used to do the touching. In this case, the prosecution relies on two touchings. In one the defendant used his hand, in the other he used his head. There is nothing about the part of his body which was used which unequivocally confers a sexual connotation on either of the touchings.

14. [14]
    The complainant was, at the relevant time, wearing a T-shirt, shorts and underwear. One of the touchings was an open-handed touching to the hip area of the complainant on the outside of her shorts. As the prosecutor conceded in the course of argument, there was nothing about that which puts the touching into the first category, namely, a touching which unequivocally carries a sexual connotation.

15. [15]
    The touching with the head was to the chest area. The prosecution sought to argue that it carried a sexual connotation on the basis that the defendant must have placed his mouth and chin near the complainant’s breasts. There is no evidence about the location of the defendant’s mouth and chin relative to the complainant’s breasts and certainly no suggestion that the defendant’s head touched the complainant’s breasts. The complainant’s evidence was that contact was made with the top of her chest and, in particular, by the defendant’s nose coming into contact with that area, with the hair of his head brushing the bottom of her chin. She described the area of contact as in her neck and chest area. In the course of cross-examination she pointed to an area just below a necklace as being where the defendant touched her with his nose. She made no complaint about, and was not asked any questions about, the proximity of the defendant or, more particularly, his mouth or chin to her breasts. There is certainly no basis to suppose that there was any touching of the complainant’s breasts by the defendant’s head or otherwise.

16. [16]
    In the circumstances, I am not satisfied that the evidence justifies a finding that the dealing unequivocally had a sexual connotation. It remains to consider whether the dealing, although not unequivocally having a sexual connotation, was done by the defendant with the intention of obtaining sexual gratification. There was nothing said by the defendant at the time or later which expressed the relevant intention. The prosecution invites me to infer the intention from the surrounding circumstances. The defence contends that such an inference cannot or should not be drawn.

17. [17]
    In considering this issue, I am conscious that whilst I may draw inferences from the facts which have been established, any inference must have a logical and rational connection with the facts and an inference adverse to the defendant ought only be drawn where I can exclude other possible inferences consistent with innocence so as to leave no reasonable doubt of the guilt of the defendant. In order to consider this issue, it is necessary to say something more about the facts established by the evidence. It is unnecessary for me to descend to commenting on the evidence of individual witnesses in turn, since the facts established by their evidence are not controversial.

18. [18]
    The defendant was one of a number of people who had travelled by motor vehicle to Roma the previous day in order to attend festivities associated with a horse race. There were arrangements for them to stay in the complainant’s family home. In the course of travelling to Roma, the vehicle in which defendant was travelling stopped at three places where the occupants met up with the occupants of another vehicle who were also travelling to Roma to stay with the complainant’s family for the same purpose. BC and WC were in that other vehicle. Their evidence establishes that the defendant consumed beer at each of the three stopping points en route to Roma. Further, BC gave a couple of beers to the defendant and to another person at the first stopping point which I infer could have been drunk after the stopping point.

19. [19]
    It was a hot day and after arriving at the residence of the complainant’s family the defendant joined others in having a swim in the pool and consuming a carton of beer. The defendant may have had something in the order of six beers. In the evening, the defendant was one of a group that attended a hotel where the complainant’s father was helping to run a Calcutta. Further alcohol was consumed. It is evident that the defendant had been drinking alcohol through the day and evening leading up to the incident in question. As the prosecution acknowledges, it is reasonable to infer that he was intoxicated to some extent, although it is not possible to determine the exact quantity of alcohol that he ingested or the extent to which he was affected thereby at the time of the incident in question.

20. [20]
    Sleeping arrangements had been discussed and settled before the group went to the hotel on the evening in question. The defendant was one of those who was to sleep in the lounge room. On the evening in question, the complainant was in her bed, in her bedroom, entry to which was via a door from a corridor which also gives access to the door of the toilet as well as to other rooms. The door into her bedroom was open, the room itself was dark, save for moonlight. The complainant’s bed is a queen size bed, capable of accommodating more than one person. She was, as has already been noted, clothed. She was lying on her side, facing towards the door, and positioned towards the far edge of her bed. She was under a sheet and a doona. She had a pillow between her legs.

21. [21]
    In the very early hours of the morning, about 2 am, the defendant, who was shirtless, entered the complainant’s bedroom, went over to her bed, pulled back the doona and sheet in an action the complainant described as them having been “ripped” back and then grabbed the pillow between the complainant’s legs and “yanked” it back such that it hit a cupboard door. The defendant then got into the bed, crawled across to where the complainant was lying and positioned himself so that he was facing her with his hand and his head touching her as previously described. Nothing was said by him and he did not move his head or his hand further. He did not try to touch the complainant in any other way. The complainant is not sure whether he went to sleep.

22. [22]
    The complainant initially thought that the person in her bed might have been her father, but she realised after a short time that the person’s hand was smaller than her father’s. She then pushed the defendant off, sat up and asked who he was, to which he gave the false response “Sam”. She then began to walk out of the room. The defendant did nothing to try to stop her from doing so, lay there with his arm spread out and asked, “HC, what’s wrong?” To which she responded, “You’re in my bed”.

23. [23]
    She left the room, shutting the door behind her. The defendant stayed in the bedroom. After a short time, the complainant went to her parents’ bedroom where she reported the matter to her mother, who then went down to the complainant’s bedroom to confront the defendant. She found the defendant in the complainant’s bed, lying on his back with the covers pulled up under his chin. She informed him that he was in her daughter’s bedroom and instructed him to get out of her bed. As she left, she could hear him getting up. She then returned to her own bedroom.

24. [24]
    A little later, having heard some noises which made her suspect that he was in her daughter’s bedroom, she got her husband to go to the bedroom to deal with the matter. He went to the complainant’s bedroom to find the defendant in the bed. He then escorted the defendant to the front door and pushed him out the door telling him he was not welcome.

25. [25]
    There are a number of matters which put the defendant’s conduct in a concerning light. The touching was by a mature aged man in his 30s of a 15 year old girl to whom he was a virtual stranger, having only spoken a few words with her earlier when she got home from work. The touching occurred in her bed, in her bedroom, in the very early hours of the morning as she was trying to sleep. He had no business to be in the bedroom, let alone the bed, being a guest who had earlier been advised of the sleeping arrangements, which involved him sleeping in the lounge room. He was shirtless. He did not simply get into the bed, in which there was room for two, but he crawled over to be physically proximate to the complainant and touched her in the way described. He gave a false answer “Sam” when questioned about who it was and he appears to have known who he was in the bed with, at least by the time that he asks, “What’s wrong, HC?”

26. [26]
    There are, however, a number of other matters which need to be borne in mind. There is no evidence of the defendant having any prior sexual interest in the complainant. It is not certain that the defendant knew he had entered the complainant’s bedroom. He was in an unfamiliar house at night in an intoxicated condition and walked through an open door off a corridor which led to a number of rooms, including the toilet. His use of the complainant’s name only occurred after she pushed him and spoke to him. The touching was not accompanied by any lewd or suggestive words or conduct which might cast the touching in a sexual light. Further, having placed his head and his hand where he did, he did not move them, even slightly, towards any part of the body of a sexual interest or bring any other part of his body in contact with her.

27. [27]
    Given his silence and inactivity, it is at least possible that he was simply going to sleep in the position in which he had placed himself. Intoxication could be a significant factor in the ill-disciplined way in which he ripped back the sheet and doona and threw the pillow and in his use of the name Sam when questioned. The defendant’s initial response to the complainant, “What’s wrong, HC”, whilst lying there arms spread out, followed by his remaining in the bed after she leaves and then getting back into the bed even after being ordered out by the complainant’s mother until, ultimately, escorted from the house by the complainant’s father, is more consistent with the actions of an intoxicated person resorting to bed than a person with a consciousness of guilt over having been caught indecently dealing with a child.

28. [28]
    Whilst it is true that the defendant, if just resorting to bed, had no need to crawl over to the complainant so as to be in contact with her in what the prosecution, adopting the terminology of some of the preliminary complaint evidence, although not a terminology used by the complainant herself, called nestling or snuggling, not all such activity has an intent to sexually gratify. I note that the touching was such that the complainant herself initially thought it was simply being done by her father.

29. [29]
    It is possible that the defendant had the intent alleged by the prosecution but that is not the test. The defendant is entitled to the presumption of innocence. It is possible that the touching by the defendant of the complainant was done in the course of an intoxicated man resorting to bed and that, to the extent he positioned himself close to and, indeed, touching the complainant who was already in bed, that was, although inappropriate, not for sexual gratification.

30. [30]
    The evidence leaves me short of being persuaded beyond reasonable doubt that the dealing was indecent. The verdict is not guilty. Your client is discharged.