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The Queen v LP[2020] QDC 218

DISTRICT COURT OF QUEENSLAND

CITATION:

R v LP [2020] QDC 218

PARTIES:

The Queen

v

LP

(Defendant)

FILE NO/S:

733/18

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

9 September 2020

DELIVERED AT:

Southport

HEARING DATE:

1, 2, 3 and 4 September 2020

JUDGES:

Smith DCJA

ORDER:

I find the defendant not guilty of indecent treatment of a child under 16 under 12 who is a lineal descendant.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – whether the defendant is guilty or not guilty – whether crown has proved a circumstantial case against the defendant

CRIMINAL LAW – EVIDENCE – PROOF – CIRCUMSTANTIAL CASE – whether crown has excluded reasonable hypotheses consistent with innocence

Criminal Code 1899 (Qld) ss 216, 615B, 615C

Evidence Act 1977 (Qld) s 39PB

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

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

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

Dookheea v R [2017] HCA 36; (2017) 262 CLR 402, cited

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

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

R v Armstrong [2006] QCA 158, applied

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

R v De Voss [1995] QCA 518, cited

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

R v McBride [2008] QCA 412, cited

R v Michaux [1984] 2 Qd R 159, cited

R v Mulcahy [2010] ACTSC 98, cited

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

Sochorova v Durairaj [2020] QCA 158, cited

COUNSEL:

Mr M Mitchell for the crown

Mr R Pearce for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Russell Baxter Solicitors for the defence

 

Introduction

  1. [1]
    This is a judge only trial.
  2. [2]
    The defendant is charged with one count of indecent treatment on his daughter, IP.
  3. [3]
    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.
  4. [4]
    The offence is set out in section 216 of the Criminal Code 1899 (Qld) (“the Code”). The elements of the offence are:
    1. (a)
      The defendant dealt with the complainant. “Dealing with” includes touching.
    2. (b)
      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 circumstances.
    3. (c)
      The dealing was unlawful i.e. not authorised justified or excused by law.
    4. (d)
      The complainant was under 16.
    5. (e)
      The complainant was under 12.
    6. (f)
      The complainant was the defendant’s lineal descendant.
  5. [5]
    In this case, the only issue is whether the defendant unlawfully and indecently dealt with the complainant. Age and the fact the complainant was a lineal descendant are not in dispute.

Principles to be applied

  1. [6]
    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.[1] 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.[2]
  2. [7]
    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.[3]
  3. [8]
    This section is in accordance with Fleming v R,[4] 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. [9]
    In R v Mulcahy,[5] 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.[6]
  1. [10]
    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.
  2. [11]
    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities”. That is, the case must be proved to be more likely than not.
  3. [12]
    In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.[7]
  4. [13]
    I also note expert evidence was called in this matter. In this regard, I am entitled to scrutinise expert evidence for qualifications, concessions and reservations contained within it, and to consider whether the factual basis for opinions given has been made out,[8] but I am not entitled to reject unchallenged medical evidence where there is no evidence to the contrary.[9]
  5. [14]
    I also note Professor Templeton gave evidence via video link. I cannot give that evidence any more or less weight, or draw any adverse inferences against a party simply because that evidence was by video link.[10]
  6. [15]
    The complainant and the witness CP gave evidence by way of section 93A Evidence Act interviews. I also note that the court was closed during the playing of the section 93A statements.
  7. [16]
    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.
  8. [17]
    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.[11]

Ms SH

  1. [18]
    SH gave evidence that she and the defendant had two children, IP (the complainant) born 2010 and CP born 2008. They separated in 2012. During 2017, they had arrangements between themselves concerning the care of the children.[12] The children normally resided with her but also visited the defendant. After her separation with the defendant, she married PN but they also separated in 2017. PN worked overseas but when he was in Australia he would stay with SH or his mother.[13] SH claimed she was not in an intimate relationship with PN. PN and SH had two children together as well. Whilst she claimed PN never solely cared for the children because there was a nanny, she conceded she was not at the house at all times.[14] She agreed that the defendant had the care of the children in April 2017.[15]
  2. [19]
    The complainant and CP stayed with the defendant between 21 October and 25 October 2017. The next occasion they stayed at his house was between 22 November 2017 and 3 December 2017.[16]
  3. [20]
    On 24 November 2017, the defendant collected IP’s uniform. On 27 November 2017, the defendant and SH had sex. They had sex every now and then. She claimed she had no sex with anybody else during that period.[17]
  4. [21]
    On 28 November 2017, she received a call from the defendant advising that he thought he had gonorrhoea. She made an appointment to see a doctor. She had no symptoms at that stage. She was treated.[18]
  5. [22]
    The children came home on 2 December 2017. On 5 December 2017, the defendant advised her he had tested positive to gonorrhoea and chlamydia. By this stage SH had already tested positive to gonorrhoea but not chlamydia.[19]
  6. [23]
    On 22 December 2017, the complainant complained about a discharge and showed SH her underwear and SH saw a thick discharge. IP went to stay with the defendant on 23 December 2017. SH made a doctor’s appointment for IP. That night, she received a call from IP hysterical and wanting to come home and she came home. CP stayed there.[20]
  7. [24]
    The defendant spent Christmas with them and stayed the night. CP went home on Boxing Day.[21] SH claimed there was no sex with the defendant after 27 November 2017.
  8. [25]
    IP was taken to the defendant’s house on New Years’ Day.[22] On 3 January 2018, IP’s discharge became worse and she was taken to the doctor’s. On 4 January 2018, IP was at the defendant’s house. On 5 January 2018, she was taken back to the doctor’s because they called. SH was told IP tested positive to gonorrhoea and was treated. The doctor then made a mandatory report to the authorities.[23]
  9. [26]
    As at October to December 2017, IP was seven years old. SH claimed she didn’t help with IP’s personal hygiene and didn’t touch her genital area. She claimed that IP and she did not sleep in the same bed.[24]
  10. [27]
    In cross examination, the witness conceded that she used email, text and a calendar to create a timeline for her police statement. Most of it was accurate.[25] She agreed that she and the defendant had spent nine years together. The two children with PN were born 2013 and 2016. She knew PN from school and after she had separated from the defendant she rekindled her relationship with PN and they married. PN is a deckhand FIFO worker.[26] When he came back to Australia he would stay at either her place or his mother’s place. PN also regarded the two older children as his. The defendant did not have a similar relationship with PN’s children. She accepted that all four children were at home when PN was there.[27] During 2017, she and PN talked about separating and it was agreed that he would keep contact with all four children.
  11. [28]
    SH explained that she usually worked from home and the children were cared for by her or the nanny. She agreed that PN was home on weekends when he started a company in Australia. She agreed that in 2017 she would travel regularly including to Sydney and Kuala Lumpur. She couldn’t say how many trips there were to Sydney. She usually travelled during the week. She could not say whether PN looked after the children in November 2017 but conceded that she gave PN’s Facebook contacts to the defendant.
  12. [29]
    She was shown a message dated 9 November 2017 which proved this and proved that she was away. She couldn’t be certain who had the children during that time. She agreed that the defendant had an apartment at Nobbys Beach and a flatmate who lived there.[28] The defendant was also a FIFO worker.
  13. [30]
    She agreed that in April 2017 the defendant took the children to Bali and both children including the complainant had a good time.[29]
  14. [31]
    She agreed that between 21 October 2017 and 25 October 2017 the children were at the defendant’s and the defendant broke his arm.[30] At the time she was overseas. She agreed the defendant returned the children to the nanny on 28 October 2017.[31]
  15. [32]
    She agreed that the children were returned to her on 2 December 2017 and the defendant left Australia on 3 December 2017.[32]
  16. [33]
    She agreed that on 5 December 2017 the defendant confirmed the test results. He decided to get treatment in PNG.[33]
  17. [34]
    On 22 December 2017, she took the complainant to Dr Lynch because of the vaginal discharge. There were no suspicions about the defendant. The same day, the defendant arrived back in Australia.[34]
  18. [35]
    She agreed that on 23 December 2017 the complainant called her in tears wanting to come home and she was picked up.[35] She agreed that on 3 January 2018 the complainant was taken back to Dr Lynch.
  19. [36]
    She also agreed that the defendant took the complainant to the clinic on 5 January 2018.[36]
  20. [37]
    She agreed that she and defendant were on good terms and they communicated almost daily mostly on WhatsApp. A lot of those messages involved personal exchanges and “sexting”. She agreed that she sent photos of sex toys including a vibrator and that she used sex toys during 2017 and had sex with the defendant from time to time that year. They were very close physically and emotionally. It was a sexual opportunity scenario.[37]
  21. [38]
    The witness was then shown a number of WhatsApp messages which disclosed that the defendant took the children to Bali in April 2017. She agreed that the kids told her they had an awesome time in Bali.[38]
  22. [39]
    A number of text messages were shown to the witness which disclosed that the complainant was ill at various times in 2017 including having a discharge in her underwear on 10 August 2017. Despite this, it does not seem that SH took her to the doctor.[39]
  23. [40]
    SH also had her own problems with vaginal bleeding which occurred after a tubal ligation and she was seen a number of times by a doctor.[40] There was a message on 30 August 2017 which revealed the complainant had a sore throat and “bung” eye.[41]
  24. [41]
    On 3 October 2017, SH was vomiting, had diarrhea, spasms and blurred vision which she attributed to salmonella poisoning.[42]
  25. [42]
    On 23 October 2017, the complainant was taken to the doctor with a rash which was diagnosed as school sores.[43] She accepted that she had seven non-appearances with the doctor in 2017.
  26. [43]
    She also told Dr Lynch on 1 December 2017 that she had rekindled her relationship with the defendant.[44]
  27. [44]
    On 24 January 2018, she saw Dr Lynch and told Dr Lynch that the complainant had disclosed that she received “[special] cuddles” from the defendant.[45]
  28. [45]
    She agreed there was nothing suspicious between the complainant and the defendant.[46] She did recall there were times when the children did not want to go to the defendant’s house. She agreed that sometimes when she was ill, the complainant would be in her bed watching movies.[47]
  29. [46]
    As to the complainant’s trips to the doctor, there were a number of those including for the rash around the mouth and the body on 23 October 2017. She agreed the complainant denied she had been interfered with by the defendant. She was adamant about it. The complainant was asked directly by her if anyone had interfered with her.[48] She also agreed that on one occasion, the complainant complained of bullying at school. She said the complainant was a happy child.
  30. [47]
    She said that there was nothing in the complainant’s behaviour to think that the defendant acted inappropriately towards her.[49]

Complainant

  1. [48]
    The complainant provided a number of 93A statements to the police.
  2. [49]
    In the first statement dated 9 January 2018,[50] she told the police she did not know why she was there to talk to them.[51] She discussed the details of her family relationships. She said that she liked her dad because he takes them to the pool and they got to play with friends.[52] She didn’t like her dad because when she falls asleep on the couch, instead of taking her to her room he takes her to his room and slept in his bed.[53] He never slept with pajama pants on.[54] There was nothing else though that made her feel uncomfortable.[55] She agreed that if she fell asleep, her mother would take her to her bed.[56]
  3. [50]
    On my assessment, the police placed a fair bit of pressure on her to reveal that the defendant interfered with her but she did not allege this.[57]
  4. [51]
    She said that she went to the doctor and was told by the mother she had a staph infection.[58] Again, the police had another go at trying to get information as to molestation but were unsuccessful.[59]
  5. [52]
    On my assessment, the complainant was an intelligent girl who knew what private parts were.[60] She was asked whether anybody had looked at her private part and said the doctor had and that her mother had showered her and that was about it.[61] She denied that anybody had touched her private part.[62] When they returned to the topic of being in the father’s bed, she said that she couldn’t see his private parts until he got dressed and that was only if she was facing him.[63] She also said she got cuddles and that he just hugged her and she didn’t like it.[64] This is because he didn’t have clothes on.[65] She also complained that the defendant yelled at her and would smack her but there was no more.[66]
  6. [53]
    Again, she was pressed in order to obtain a disclosure but made no disclosure about being indecently touched by the defendant.[67] She claimed that she told her mother about the defendant taking her to her bed.[68] There were no secrets she had to keep.[69] She was asked to further describe the hugs and said that she was lying on her back and he was on her side. It was a “normal cuddle”.[70]
  7. [54]
    The second 93A statement was provided on 29 January 2018.[71] Again, no disclosures were made about the defendant in that statement. She told the police she was there to talk to them because of what she told her mother last night.[72] She claimed that when she was in the defendant’s bed she felt a tickle to her back.[73] The tickle was right in the centre.[74] She was not sure what tickled her.[75] When she was in her father’s bed she would wear a nightie with long sleeves.[76] She made no allegation about these clothes coming off. The father didn’t wear any clothes.[77] She was not sure what parts of his body touched her,[78] because she was facing away from him. She said that her father washed her with his hands using soap and washed her private parts.[79] He would then get a towel and wrap it around her and she would get into her nightie.[80] She said that whenever she fell asleep in her bed CP went into the father’s bed.[81] She claimed she told the father she didn’t feel comfortable when he washed her or being in his bed.[82] She said that sometimes he got into the shower with them.[83]
  8. [55]
    There was no allegation about the father touching her private parts aside from during washing and no allegation about her touching his private parts. He never told her to keep a secret.[84] There was nothing else which made her feel uncomfortable with her father.[85]
  9. [56]
    Again, on my assessment, there was much opportunity for the complainant to make an allegation of unlawful sexual abuse and she did not.
  10. [57]
    The third 93A statement was given on 11 September 2019.[86] In that statement, she claimed that her nightie was washed pretty often about three times a week.[87] On my assessment, that was a guess on the part of the complainant. She also claimed her bed sheets were washed once or twice a week but again I considered that was a guess.
  11. [58]
    She claimed she wanted to wash herself but the defendant said it would be easier if he washed her.[88] He normally washed her and they had different towels and they were only allowed to use each other’s towels.[89] This begs the question though, how does she know when she was not there that her towel was not used by the defendant for example. She claimed that the towels were washed a couple of times a week but again I considered that was a guess.[90] She was washed with a loofah and claimed the defendant used one on himself and another one on them but again this begs the question how did she know he didn’t use hers when she was not there.[91]
  12. [59]
    The fourth 93A statement was dated 12 September 2019.[92] In this statement, she claimed that she wore long pajamas two or three times a week.[93] She claimed that her sheets at her mother’s place would be washed three or four times a week but I considered that to be a guess.[94] She claimed that they used different towels and they were put into the washing basket as soon as they were used.[95] Again, one cannot exclude that someone else used others bath towels. The towels were actually kept on the same rack.[96]
  13. [60]
    She denied that her loofah was ever used by somebody else but one does not know how she could exclude that.[97] She said they used towels to dry their bodies and loofahs to wash their bodies.

CP

  1. [61]
    CP gave a 93A statement dated 29 October 2018.[98] In that statement, he claimed he did not like his dad’s place because his father always drinks.[99] He also called him fat.[100] He also said that he slept on the bed and the father was naked and this was uncomfortable.[101] He also agreed that he went to bed nude because the father told him to.[102] He wanted to go back to mum’s.[103] The defendant gets angry easily and doesn’t let him hang out with his friends and threw his dinner in the bin once.[104] He also didn’t like going to the fish and chip shop.[105] He also washes him in the shower and told his father to stop this.[106] He didn’t like his hair being scrubbed or that he and IP all showered together.[107] The father did not wash his rude parts.[108] The defendant washed IP and did the same to her.[109] He didn’t wash her rude parts that he knew of.[110]
  2. [62]
    The complainant claimed when she was in the father’s bed she felt stuff on her back.[111] She remembered that the other night.[112] The complainant said that the father was a bloody idiot, was mean and should go to jail.[113] He could not remember anything going on between him and his father.[114]

Professor Templeton

  1. [63]
    Professor Templeton gave evidence that he has expertise concerning sexually transmitted infections. He had regard to a range of material in reaching his opinions in this particular case.[115]
  2. [64]
    He explained that gonorrhoea is a bacterial organism which is transmitted sexually to the vagina, penis, rectum and pharynx. It can also cause conjunctivitis, an inflammation of a tube near the testes in men and infection of the fallopian tubes leading to pelvic inflammatory disease in women.[116] The conjunctivitis is caused by discharge on a finger and wiping the eye.[117]
  3. [65]
    He said there were studies concerning gonorrhoea in prepubescent children. There have been reports on various cases but no study on the symptoms in children because of the illegal nature of sexual abuse.[118]
  4. [66]
    Gonorrhoea is transmitted to females and males by vaginal, anal or oral contact. It can also be transmitted from a mother during a vaginal delivery to a baby. The primary site is the area of sexual contact.[119]
  5. [67]
    In females, an infection in the vagina can cause anal gonorrhoea even though there is no anal penetration. There is a condition called disseminated gonorrhoea in which gonorrhoea spreads in the bloodstream but this is very rare and there is no suggestion of that in this case.[120]
  6. [68]
    The primary site for the infection in men is the lining of the urethra of the penis and the primary site in women is the cervix because the pH in the vagina is very acidic and therefore not a site for the infection. It is different for prepubescent girls because they don’t produce estrogen and the primary site is in the vagina. Girls are therefore susceptible to gonorrhoea.[121] If a child contracts gonorrhoea there is a mandatory reporting in New South Wales to health authorities.
  7. [69]
    Chlamydia is similarly transmitted but it is less infectious than gonorrhoea.[122] He also noted in this case that the defendant had chlamydia, gonorrhoea and HIV. He said that HIV and chlamydia were less transmissible than gonorrhoea.
  8. [70]
    With respect to chlamydia though, if there is male to female sexual contact on one occasion there is a 20 percent chance of transmission and four episodes 80 percent chance. With gonorrhoea, there is a 50 percent chance in a single contact and greater with more contacts.[123]
  9. [71]
    There is a significantly higher change of transmitting gonorrhoea with men with discharge.[124]
  10. [72]
    There have been several case reports of non-sexual transmission of gonorrhoea to children. The case reports show that this is unusual and that Professor thought this was the weaker form of evidence. Most of the case reports occurred over a century ago and involved children’s homes.[125]
  11. [73]
    The Professor pointed out there were national guidelines in various countries which effectively stated that if gonorrhoea was present in children, sexual abuse was “most likely” or “probable”. The experts agree that gonorrhoea present in children almost always relates to sexual abuse.[126]
  12. [74]
    The Professor though agreed that the gonorrhoea bacteria can survive outside the body and laboratory studies have been done in this regard. The documents relied on by the Professor were tendered as Exhibit 9.[127]
  13. [75]
    The doctor referred to a paper by AC Srivastava headed “Survival of Gonococci in Urethral Secretions with reference to the non-sexual transmission of gonococcal infection”.[128] In this particular study the bacteria was placed on various materials and which were stored at room temperature. The bacteria was recovered for up to three days from a wide variety of hard and soft materials:

“It is possible gonorrhoea is transmitted non-venereally more often than is usually acknowledged and these results may have medico legal and social significance.”

“The present studies confirm and extend the evidence of gonococci can survive for up to three days on some objects; some of the test strains of gonococci survived in exudates for longer periods on a wider variety of materials than has previously been shown. The longer survival period, the greater is the chance of non-venereal gonococci infection from contact with a contaminated article.”[129]

  1. [76]
    The Professor pointed out that these were in laboratory conditions with humidity at 60 percent and with a temperature of 37 degrees Celsius. He gave evidence that the bacteria is susceptible to drying. He agreed that the experiment showed that the bacteria can be cultured from towels in a laboratory situation.[130]
  2. [77]
    Further, T Elross in a letter to the British Medical Journal in 1972 stated that urethral discharges from male patients had been placed on the clear glass slides or on towels. It was said:

“Ten patients had been studied up to the present… The maximal period of gonococcal survival found hitherto has been 24 hours for discharge transferred to the towels and 17 hours for the slides.”

  1. [78]
    The Professor though thought this would not prove that a towel would cause infection but he conceded that the bacteria could grow on an inanimate object for at least 24 hours.[131]
  2. [79]
    James Gilbaugh in an article called “The Gonococcis and the Toilet Seat”[132] conducted various tests. He noted:

“It is clear that toilet seats contaminated with purulent discharges containing gonococci may harbor viable organisms for several hours. But this finding alone is not sufficient to explain acquisition of gonorrhoea from toilet seats. A means of transmission from the seat to the urethral or genital tract must be demonstrated. Mere sitting on the contaminated seat is not sufficient… Some other factor must be involved in transmission and the most available and efficient would the persons own hands. Contaminated toilet paper has greater potential as a direct source than do toilet seats.”

  1. [80]
    Further, there was a letter from L Dayan from the Sexual Health Services North Sydney Health Clinic in which a report showed that a prepubescent eight year old girl in August 2003 developed gonorrhoea in a non-sexual way. The Professor, however, considered there might have been non-disclosure by the child. However, in my view that was mere supposition on his part. Indeed the contraction referred to by Dayan involved the child wiping a dirty toilet seat with toilet paper and then using the toilet paper.[133]
  2. [81]
    The Professor said there is no evidence that transmission via towels of gonorrhoea could occur but he put a caveat on this stating “we don’t know”. [134]
  3. [82]
    He gave evidence that gonorrhoea outside the body was susceptible to drying and rapidly becomes nonviable. It all depends on the humidity and air. He agreed that it would be different as between an environment in the midst of summer in Queensland as compared to winter in Sydney.[135]
  4. [83]
    He said it was not possible for gonorrhoea to penetrate through clothing. I thought that this was important because on the evidence when the complainant was in bed with the defendant she was always clothed.[136]
  5. [84]
    As to the incubation period, it is one day to 14 days in the male penis. Not all males display symptoms, most do about 90 to 95 percent within five to seven days as early as one to two days. The most common symptom is discharge and burning when urine is passed. The discharge is a yellowy creamy colour. As to females, they are less symptomatic, 50 percent or less have symptoms and the incubation period is within 10 days. Females can have the bacteria for months and display no symptoms.[137]
  6. [85]
    In the more serious cases, the disease spreads to the fallopian tubes, causes abdominal pain, fever and vaginal bleeding.
  7. [86]
    The doctor had regard to the various medical summaries of the complainant and SH. He did not think the complainant had gonorrhoea as at 10 August 2017. Similarly, she did not have it as at 23 October 2017. The sore throat entries for 18 December and 20 December 2017 do not suggest of gonorrhoea.[138]
  8. [87]
    As to SH’s records, there was breakthrough bleeding in July and August 2017 but this was not suggestive of gonorrhoea and indeed there was a pap test which confirmed this. The breakthrough bleeding related to the caesarian section and tubal ligation.[139]
  9. [88]
    The Professor was of the opinion that because the defendant said in his interview he had a small amount of discharge from his penis it was not possible for the complainant to have been infected from a towel.[140] He thought also that it was very unlikely that it was passed by way of using a loofah in the shower.[141]
  10. [89]
    He did concede there was a study of aboriginal children where an epidemic outbreak and the transmission may have been by flies.[142] There was clearly transmission by an inanimate object.[143] I considered this to be a particularly important concession in this case.
  11. [90]
    He did not consider there was a transmission by way of bedsheets because the bacteria cannot penetrate through clothes.[144]
  12. [91]
    In a Melbourne study conducted by Priest, the Professor explained it was found that the transmission rate was twice higher for men with discharge.[145]
  13. [92]
    He did not consider there was any transfer from the mother to the child nor by her washing or drying her because she was asymptomatic. It might be different if there were symptoms of discharge from the vagina though.[146]
  14. [93]
    The Professor conceded that if the bacteria was on a hand or finger and that was left close to the vagina which was then later rubbed in by the complainant, for example on toilet paper, this could explain the presence of gonorrhoea. He accepted that there are a lot of variables involved and it would be efficiently transmitted that way.[147] This is particularly considering the vagina in a child starts at a superficial level.[148] Again, I thought this was an important concession by the witness.
  15. [94]
    He conceded it was possible but highly unlikely for the gonorrhoea to be transferred to the vagina during rubbing and by drying near the area. He could not indicate the percentages involved.[149] I thought this answer was a little inconsistent with his earlier concession that this could be an efficient method of transfer.
  16. [95]
    The Professor also conceded that if discharge was on toilet paper then this could possibly transfer the disease. If a young girl wiped herself after going to the toilet with gonorrhoea freshly inoculated on toilet paper this would quite easily transmit the gonorrhoea.[150] Again, I thought this was an important concession. I cannot see why a towel would be any different.
  17. [96]
    He did not agree that it could be transferred if soap was used in a shower.[151]
  18. [97]
    As to the defendant, his medical records show that he saw Dr Du on 30 November 2017 after noticing a white discharge. He said he had unprotected sex and his urine was cloudy. The Professor thought that the first symptom noticed was the discharge. He received treatment for the gonorrhoea in PNG. He also received tablets and Doxycycline on 31 December 2017. The Professor thought that the infection had occurred one to 14 days before 28 November 2017. By 3 January 2018 he was clear.[152]
  19. [98]
    In cross-examination, the Professor conceded there were numerous case reports describing non-sexual transmission of gonorrhoea.[153] The Professor was skeptical of these and thought they may have been more likely the result of sexual assault.[154] I thought this was supposition on the Professor’s part.
  20. [99]
    He accepted though that many of these case reports emanated from locations of overcrowding and unhygienic situations.[155] He accepted there was a high proportion of gonorrhoea in aboriginal children but thought that sexual abuse was more common as well.[156]
  21. [100]
    He could not discount the possibility though that gonorrhoea was transmitted to the children other than by sexual offending referring to the Merianos study which supported the contention that gonorrhoea could be transmitted via the eyes.[157] He agreed that non-sexual transmission is described occasionally in literature particularly aboriginal communities in particular the Merianos study. He did not accept that it was possible for a seven year old female to contract gonorrhoea other than by sexual contact in this case. He thought, based on the description given by the defendant, there was insufficient material at the time of discharge when this occurred.[158]
  22. [101]
    I might say in my assessment of this, there was a fair degree of guesswork on the part of the Professor in this regard because one does not know exactly how much discharge the defendant had. We do know he was likely to be symptomatic for the entire time the complainant stayed with him in November and December 2017.
  23. [102]
    He agreed that gonorrhoea is a fastidious organism and it is difficult to grow. It can survive for a short period on towels provided sufficient material is used.[159] He agreed there are no national guidelines in Australia concerning the issue and repeated details of guidelines in other countries. The consensus is that it is almost always related to sexual abuse.[160]
  24. [103]
    He agreed that adult women were often asymptomatic but if they had symptoms they would develop within 10 days. With young girls the rules are different as their vagina is different to an adult female.[161]
  25. [104]
    Ultimately, his view was that it was impossible to prove non-sexual transmission as this relies on proving lack of sexual contact.[162] I thought that this was an important concession because this is directly relevant to the onus and standard of proof in this particular case.
  26. [105]
    The Professor noted that the complainant denied sexual interference then alleged this was the case for the majority of sexual abuse victims referring to an article by Fleming.[163] Of course, the difficulty with relying on this is to blindly accept the credit and reliability of the persons making the report.
  27. [106]
    He denied that the symptoms of gonorrhoea would include a sore throat or lethargy or tiredness. Skin rashes or lesions are rare.[164]
  28. [107]
    He ultimately said that the vast majority of cases of gonorrhoea occur as a result of sexual abuse but he could not exclude the possibility that it was passed on by non-sexual contact if there was a large amount on a towel and such a circumstance could occur.[165]
  29. [108]
    He thought it was far more likely in this case the defendant infected SH with gonorrhoea and the complainant was subsequently infected.[166] He would be more confident the defendant infected the complainant if all other adults were excluded, namely the ex-partner PN. He agreed he had no medical records to exclude that gonorrhoea came from the other male in the house.[167]

Other articles in exhibit 9

  1. [109]
    In “A study of gonococcol infections among infants and children”[168] it is noted at table 3 that modes of transmission of gonococcol infections among 180 children included 10 by contamination and 48 by sexual contact. It was noted many came from overcrowded homes and low socio economic areas.
  2. [110]
    In “Children referred for possible sexual abuse”[169] the conclusion reached was that medical, social and legal professionals have relied too heavily on the medical examination in diagnosing child sexual abuse. History from the child remains the single most important diagnostic feature in coming to the conclusion that a child has been sexually abused.
  3. [111]
    In “Sexual contact in children with gonorrhoea”[170] it was noted that while one study reported gonorrhoeal infections in children over one year of age to be associated with sexual contact in 98% of cases other studies reported sexual contact in less than 35% of cases. This study though considered in almost all cases involving children over four gonorrhoea is associated with sexual contact. It is worth observing that 31 children were interviewed. Of all the children older than four they had a named sexual contact. Also the author states “Even after accepting a diagnosis of nonsexual contamination one should remain concerned there is an unidentified older male who is the source.”
  4. [112]
    In “Clinical presentation of asymptomatic and symptomatic heterosexual men who tested positive for urethal gonorrhoea at a sexual health clinic in Melbourne”[171] the results showed that of 116 confirmed cases, 95% were symptomatic and typical urethal discharge was present in 80.2%. Typical discharge was defined as purulent discharge i.e. yellow green or pus-like discharge.
  5. [113]
    In “Gononcoccal Infections in the Adult”[172] it is noted that the predominant symptoms are urethal discharge or dysuria. Although initially scant and mucoid in appearance in most males (75%) urethal exudate becomes frankly purulent and relatively profuse within 24 hours of onset.

Defendant’s interview

  1. [114]
    The defendant was interviewed on 10 January 2018. He said that he had been diagnosed with HIV the previous day.[173] He said that a weeks ago SH had called him and said that the complainant had gone to the doctor and had early period and she was told this was quite normal. He later met them at the doctor’s and then left and was rung that afternoon and was told by SH that the complainant had gonorrhoea.[174] The defendant was mortified by this.[175] He said that he first found out that he had a sore penis around Christmas time and he only developed symptoms when he got back to Australia. There was a little bit of discharge.[176] He went to the doctor’s and then told SH because he’d had sex with her two days beforehand.[177] He told her that he had gonorrhoea and that she needed to get tested.[178] She later told him that she had it as well. He said after looking at his phone it was before Christmas that he had gonorrhoea.[179] He said that when he was in Australia he was confirmed as having either chlamydia or gonorrhoea and he was given some pills to get rid of that and then was later told he needed an injection which he had in PNG.[180] He said that he had a little bit of a discharge at home.[181] He said what probably happened was that he dried his genital areas on a towel and put it back on the rack and didn’t think about it.[182] After he returned to PNG and took more medication, it cleared up and the symptoms were not continuing.[183] He thought that the complainant possibly got the infection from a towel but he didn’t know.[184] She doesn’t have her own towel, she just grabs one off the rack so it could have been his towel.[185] He said that he hadn’t wiped her bum for a couple of years. He conceded that the kids sometimes slept in his bed.[186] He conceded that sometimes he had pajamas pants on and sometimes not but the kids had clothing on.[187] The complainant had never mentioned anything to him about sleeping in the nude.[188] He agreed that he had unprotected sex in PNG with a Papua New Guinean girl.[189] He agreed that he picked the complainant up and cuddled her and sometimes he might lie with an arm over her.[190] He denied ever sexually assaulting his daughter and had never touched her private parts.[191] He denied having any sexual activity with his daughter.[192] He thought it may be because there was a discharge on the towel or sheets.[193]

Admissions

  1. [115]
    Exhibit 13 were admissions relating to the medical treatment of SH. This shows SH attended Dr Lynch on 1 December 2017 requesting screening for gonorrhoea. The tests were positive. On 27 December 2017, SH had follow up testing. These results were negative. On 22 December 2017, IP attended the doctors with SH. On 3 January 2018, IP re-attended and swabs were taken. The swabs were positive to gonorrhoea.
  2. [116]
    Exhibit 14 were admissions relating to a sexual assault examination of IP on 10 January 2018. The examination revealed no abnormalities of the genital area. This neither confirms nor refutes that sexual abuse has taken place.

Defence case

Defence - no evidence

  1. [117]
    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.[194]

Record of interview

  1. [118]
    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. [119]
    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 interview 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.[195]
  3. [120]
    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.[196]
  1. [121]
    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. [122]
    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.[197] 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. [123]
    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

  1. [124]
    The prosecutor submitted that the most likely scenario here is that the defendant indecently and unlawfully touched the complainant whilst she was asleep in his bed by removing or adjusting her underwear and indecently touching her on the vaginal area with his penis, hand or object and thereby infected her with the disease.
  2. [125]
    He submitted that there were no reasonable hypotheses consistent with innocence and which were raised on the evidence had been excluded. He submitted the “[special] cuddle” evidence was evidence of discreditable conduct making it more likely that the defendant had committed the charged offence. I might say I did not accept that submission in circumstances where the complainant had described these cuddles as normal ones.
  3. [126]
    The prosecutor submitted that a towel did not pass on this disease. It was submitted that I should accept the complainant’s evidence that no one used each other’s towels. I might say the difficulty with this submission is that it is contrary to the defendant’s account. Also I thought it unlikely. Also I cannot not exclude the possibility that someone used her towel without her knowledge.
  4. [127]
    It was also submitted that Professor Templeton’s evidence excluded the possibility that the bacteria remained on a towel and was then transferred to her. The prosecution heavily relied upon the defendant’s description as to the degree of discharge in his interview. However, I might say that I thought this was vague and on the evidence he was infected between 22 November 2017 and 2 December 2017 and during that time would have exhibited symptoms including discharge so that it is difficult to rely entirely on his description which was not really clarified.
  5. [128]
    The prosecution submitted that the sheet scenario could be excluded because she was clothed. It was submitted the washing and the shower scenario could be excluded because soap was used. Also it was submitted based on Professor Templeton’s evidence the loofah explanation should be excluded. As to the possibility of transfer from a toilet seat, it was submitted there was no evidence of this.
  6. [129]
    It was also submitted that it should be excluded that there was a transfer during a drying with a towel.
  7. [130]
    The suggestion that the mother passed on the disease should be excluded because there were no symptoms.
  8. [131]
    The prosecution also submitted that the Court should accept Professor Templeton’s evidence that the case studies were a weak form of evidence. It was also submitted that there was no real support for the contention that a towel could transfer the disease.
  9. [132]
    The Crown relied on R v De Voss,[198] R v Baden-Clay[199] and Sochorova v Durairaj[200] submitting that any hypotheses raised in this case were not reasonable.
  10. [133]
    The Crown also submitted there was no evidence that the flatmate or Mr PN or the nanny had gonorrhoea and had passed it on to the child. On the other hand, the defendant has it.
  11. [134]
    It was submitted that the complainant’s interview excluded the others.
  12. [135]
    It was submitted the crown is only obliged to exclude reasonable possibilities and in this case because they are excluded, one comes back to the only reasonable inference is the defendant touched the child in an indecent manner by direct contact. It is relevant the child talked about being uncomfortable in bed when he was naked and talked about the cuddles. There was also the tickling of the back which did not occur to the brother. In all of the circumstances, she had to be asleep because she denied indecent touching. It is submitted the court can infer this scenario.
  13. [136]
    It was also submitted that the defendant’s credit should not be accepted because there was some degree of inconsistency about whether he accepted the complainant told him she did not like being in the bed.
  14. [137]
    I might say when I read the passage at p 27.l-52 I did not consider there was any admission made there and did not accept the crown argument on this point.

Defence submissions

  1. [138]
    The defence submitted there was no change in the defendant’s position in the interview when one reads the full context of the passage. The defence complained about the breadth of the particulars tendered as Exhibit A, but conceded that the crown case really was the complainant was touched indecently whilst she was asleep.
  2. [139]
    The defence submitted that the scenario that PN or Jai had passed on the infection had not been excluded because they were not called to give evidence.
  3. [140]
    It was also submitted that Professor Templeton’s evidence should not be accepted. Professor Templeton’s evidence that the vast majority of cases occur as a result of sexual abuse by itself does not exclude non-sexual transmission. Also his statement of opinion as to the articles is not expert opinion but lay opinion. Also he discounted numerous case reports which described non-sexual transmission and effectively ignored the case reports. He almost said that we should disbelieve children who deny sexual abuse. I thought there was merit to that submission.
  4. [141]
    It was submitted there was really no scientific analysis by him. Reference to the national guidelines led one to the conclusion that they did not apply the criminal standard.
  5. [142]
    Much of his opinion was outside his area of expertise.
  6. [143]
    It was submitted by the defence that in this case the possibility of non-sexual transmission cannot be excluded. Assuming the defendant infected the complainant, it could not be excluded that she used a towel that he had used. One should not accept the complainant’s evidence about the hygiene bearing in mind the interviews were conducted quite some time later. The defendant’s evidence should be accepted that the same towel was on the rack and in any event the complainant might not know that her towel was used by others. It was also relevant that she denied being interfered with and she was adamant about that with the mother.
  7. [144]
    As to CP’s evidence it was clear he did not like the father and he should not be accepted. It was relevant though that the defendant and the complainant slept on the bottom bunk. It was submitted there was nothing suspicious concerning the “[special] cuddles” because she said they were no different to a normal cuddle.
  8. [145]
    It is submitted that at most there is a degree of suspicion here but the crown has not proved its case beyond reasonable doubt.

Discussion

  1. [146]
    In reaching my decision, I have had regard to all of the evidence, the submissions of counsel and the relevant law.
  2. [147]
    The crown case is substantially a circumstantial case because the complainant does not allege the defendant indecently dealt with her.
  3. [148]
    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.
  4. [149]
    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.[201]
  5. [150]
    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.[202]
  6. [151]
    The crown case is because the defendant had gonorrhoea and the child had it, he must have touched her indecently and passed it onto her. Further, the crown says it is to be inferred he did so unlawfully. It also alleges that he indecently and unlawfully dealt with her whilst she was asleep with his penis, his hand or an object (this was not specified).
  7. [152]
    I consider bearing in mind the standard of proof the crown cannot establish beyond reasonable doubt that the defendant removed or adjusted the pants of the complainant whilst she was asleep. This is speculative and involves a fair degree of guesswork. It is also contrary to the denials of the defendant in his interview which I cannot exclude beyond reasonable doubt.
  8. [153]
    Also the following hypotheses consistent with innocence are raised on the evidence:
    1. (a)
      That someone other than the defendant did not give the disease to the child.
    2. (b)
      That the mother did not give it to the child (bearing in mind she had it).
    3. (c)
      That the disease was not passed to the child on an object such as a towel or wash cloth or bedding i.e. through secondary transfer.
    4. (d)
      That the defendant did not pass it onto the child when he innocently touched the child during bathing, drying or clothing her.
  9. [154]
    I deal with each of these in turn.
  10. [155]
    Firstly, the nanny, Mr PN and Jai were not called. We do not know what contact they had with the child. PN was also an overseas FIFO worker. We know that PN had the children when SH was in Malaysia. Professor Templeton agreed PN had to be excluded before reaching a conclusion that the defendant passed on the disease.[203]
  11. [156]
    Secondly, as to the mother, she also had the disease. However Professor Templeton considered the disease was not passed by her to the child as she was not symptomatic. I put aside this possibility.
  12. [157]
    Thirdly, ultimately on Professor Templeton’s evidence, he could not exclude the possibility that provided there was sufficient discharge it could survive on an object such as a towel or toilet paper and could be passed onto the child.[204] This concession is consistent with the studies to which I have referred to earlier in this judgment.[205] I cannot exclude the possibility that when the child was staying at the defendant’s house he used a towel and wiped his penis, discharge went onto the towel and the child used the towel and dried her vaginal area. In this way, she may have become infected. I note that the defendant in his interview said towels were placed back on the rack. Anyone could have used an infected towel.
  13. [158]
    There was also plenty of time for the infection to be passed on. The defendant had it 1- 14 days before 27 November 2017 and was not ultimately cured until January 2018. The complainant stayed with him between 22 November 2017 and 3 December 2017, on 23 December 2017, on New Years’ day and then on 4 January 2018. The defendant returned to PNG after this.
  14. [159]
    I considered on the evidence this was a reasonable hypothesis open. In this regard, I did not accept Professor Templeton’s evidence that the evidence in the studies was weak. I thought the studies provided ample evidence from which it could be determined the bacteria can be passed on in a non-sexual way.
  15. [160]
    I also considered that he relied on vague evidence as to the level of discharge from the defendant’s penis to readily find the explanation unlikely. The fact is the majority of patients have profuse discharge.
  16. [161]
    Fourthly, the child said the father washed her and even showered with her. Again, I cannot exclude the possibility that the bacteria was transferred during the drying process. I considered on the evidence this was a reasonable hypothesis open for the reasons expressed previously.
  17. [162]
    The third and fourth possibilities are even harder to exclude in a case where despite repeated efforts by the police, the child made no disclosures against her father. Also the crown case itself admits to this possibility in its particulars i.e. the child was touched with an object.
  18. [163]
    As noted earlier, I did not accept the crown contention that the cuddles were acts which showed a sexual interest in the child. The complainant described them as normal at one point in the interviews.
  19. [164]
    I also did not consider the fact the child felt a tickle in the centre of her back advanced the crown case. There was no description by her that her private parts were touched. Indeed it could have been the defendant’s other hand.
  20. [165]
    The fact is the crown has to prove its case beyond reasonable doubt, a standard much higher than the balance of probabilities.
  21. [166]
    I cannot be satisfied beyond reasonable doubt that the crown has proved its case.

Conclusion

  1. [167]
    I find the defendant not guilty of indecent treatment of a child under 16 under 12 who is a lineal descendant.

 

Footnotes

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

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

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

[4] [1998] HCA 68; (1998) 197 CLR 250 at [28].

[5] [2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334.

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

[7] Dookheea v R [2017] HCA 36; (2017) 262 CLR 402.

[8] R v Michaux [1984] 2 Qd R 159 at 164.

[9] R v De Voss [1995] QCA 518.

[10] Section 39PB of the Evidence Act 1977 (Qld).

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

[12] Transcript day 2 p 4.

[13] Transcript day 2 p 4.45.

[14] Transcript day 2 p 5.45.

[15] Transcript day 2 p 6.11.

[16] Transcript day 2 p 6.35-45.

[17] Transcript day 2 p 7.5-20.

[18] Transcript day 2 p 7.22-45.

[19] Transcript day 2 p 8.20-37.

[20] Transcript day 2 p 9.1-45.

[21] Transcript day 2 p 10.

[22] Transcript day 2 p 10.40.

[23] Transcript day 2 p 11-12.

[24] Transcript day 2 p 13.

[25] Transcript day 2 p 14.

[26] Transcript day 2 p 16.

[27] Transcript day 2 p 19.45.

[28] Transcript day 2 p 20.40.

[29] Transcript day 2 p 21.15.

[30] Transcript day 2 p 21.32.

[31] Transcript day 2 p 22.1.

[32] Transcript day 2 p 23.20.

[33] Transcript day 2 p 24.10.

[34] Transcript day 2 p 25.15-35.

[35] Transcript day 2 p 27.10.

[36] Transcript day 2 p 27.35.

[37] Transcript day 2 p 28-30.

[38] Transcript day 2 p 34.

[39] Transcript day 2 p 35-43.

[40] Transcript day 2 p 43.10.

[41] Transcript day 2 p 47.

[42] Transcript day 2 p 48.15.

[43] Transcript day 2 p 48.40.

[44] Transcript day 2 p 53.25.

[45] Transcript day 2 p 55.20.

[46] Transcript day 2 p 55.45.

[47] Transcript day 2 p 58.5.

[48] Transcript day 2 p 61-62.

[49] Transcript day 2 p 66.25.

[50] Exhibit 3.

[51] Transcript page 4.1.

[52] Transcript page 7.8.

[53] Transcript page 8.2.

[54] Transcript page 9.1.

[55] Transcript page 9.3.

[56] Transcript page 10.4.

[57] An example of this is at page 10.8.

[58] Transcript page 10.8.

[59] Transcript page 11.7.

[60] For example see page 12.8.

[61] Transcript page 13.9.

[62] Transcript page 13.8.

[63] Transcript page 14.5.

[64] Transcript page 16.7.

[65] Transcript page 17.5.

[66] Transcript page 18.5.

[67] Transcript page 19.5.

[68] Transcript page 20.4.

[69] Transcript page 20.9.

[70] Transcript page 20.

[71] Exhibit 6.

[72] Transcript page 2.5.

[73] Transcript page 2.7.

[74] Transcript page 4.5.

[75] Transcript page 5.3.

[76] Transcript page 5.7.

[77] Transcript page 5.7.

[78] Transcript page 6.7.

[79] Transcript page 7.5.

[80] Transcript page 8.5.

[81] Transcript page 9.3.

[82] Transcript page 9.8.

[83] Transcript page 10.5.

[84] Transcript page 11.5.

[85] Transcript page 12.5.

[86] Exhibit 7.

[87] Transcript page 4.10.

[88] Transcript page 5.59.

[89] Transcript page 6.50.

[90] Transcript page 7.3.

[91] Transcript page 7.50.

[92] Exhibit 8.

[93] Transcript page 3.3.

[94] Transcript page 4.12.

[95] Transcript page 5.30.

[96] Transcript page 6.5.

[97] Transcript page 6.45.

[98] Exhibit 10.

[99] Transcript page 7.50.

[100] Transcript page 8.18.

[101] Transcript page 9.20.

[102] Transcript page 11.25.

[103] Transcript page 12.3.

[104] Transcript page 12.40.

[105] Transcript page 12.50.

[106] Transcript page 13.12.

[107] Transcript page 13.32.

[108] Transcript page 14.12.

[109] Transcript page 15.15.

[110] Transcript page 16.10.

[111] Transcript page 22.22.

[112] Transcript page 22.35.

[113] Transcript page 22.45.

[114] Transcript page 25.5.

[115] Transcript day 3 p 5.

[116] Transcript day 3 p 5.40.

[117] Transcript day 3 p 6.10.

[118] Transcript day 3 p 6.20.

[119] Transcript day 3 p 6.45.

[120] Transcript day 3 p 7.15-30.

[121] Transcript day 3 p 7.45-8.5.

[122] Transcript day 3 p 8.25.

[123] Transcript day 3 p 9.

[124] Transcript day 3 p 9.35.

[125] Transcript day 3 p 9.35-10.5.

[126] Transcript day 3 p 11.40.

[127] Transcript day 3 p 11.42.

[128] J Med Microbiol Vol 13 (1980) 593-596.

[129] Transcript day 3 p 12-15.

[130] Transcript day 3 p 15.10.

[131] Transcript day 3 p 16.10.

[132] The New England Journal of Medicine Vol 301 12 July 1979 page 91.

[133] Transcript day 3 page 17.40. www.stijournal.com 2004 page 327.

[134] Transcript day 3 p 18.15.

[135] Transcript day 3 p 18.35.

[136] Transcript day 3 p 19.10.

[137] Transcript day 3 p 20.

[138] Transcript day 3 p 21-24.

[139] Transcript day 3 p 25.

[140] Transcript day 3 p 26.45.

[141] Transcript day 3 p 27.20.

[142] Transcript day 3 p 27.35.

[143] Transcript day 3 p 27.32.

[144] Transcript day 3 p 28.5.

[145] Transcript day 3 p 29.15. “Neisseria gonorrhoeae DNA bacterial load in men with symptomatic and asymptomatic gonococcal urethritis” Sex Transm Infect 2017; 93: 478-481.

[146] Transcript day 3 p 30.25.

[147] Transcript day 3 p 30.25-30.

[148] Transcript day 3 p 31.15.

[149] Transcript day 3 p 31.5.

[150] Transcript day 3 p 31.25.

[151] Transcript day 3 p 31.45.

[152] Transcript day 3 p 32-34.

[153] Transcript day 3 p 35.45.

[154] Transcript day 3 p 36.25.

[155] Transcript day 3 p 36.40.

[156] Transcript day 3 p 37.5.

[157] Transcript day 3 p 37.10.

[158] Transcript day 3 p 38.35.

[159] Transcript day 3 p 39.

[160] Transcript day 3 p 39-41.

[161] Transcript day 3 p 42.5.

[162] Transcript day 3 p 42.15.

[163] Transcript day 3 p 42. “Prevalence of childhood sexual abuse in a community sample of Australian women” Vol 166 MJA 20 January 1997.

[164] Transcript day 3 p 44.

[165] Transcript day 3 p 44.45.

[166] Transcript day 3 p 45.10.

[167] Transcript day 3 p 46.10.

[168] G. Branch Public Health Reports Vol. 80 No. 4 April 1965.

[169] A Heger et al, Child Abuse and Neglect 26 (2002) 645-659.

[170] Ingram et al Am J Dis Child Vol 136 Nov 1982 page 994.

[171] Martin-Sanchez et al BMC Infectious diseases (2020) 20:486.

[172] Holmes et al “Sexually Transmitted Dieases” Chapter 35 4th ed 2008.

[173] Transcript page 5.59.

[174] Transcript page 6.30.

[175] Transcript page 7.42.

[176] Transcript page 8.50.

[177] Transcript page 9.52.

[178] Transcript page 10.22.

[179] Transcript page 12.5.

[180] Transcript page 13.25.

[181] Transcript page 13.50.

[182] Transcript page 14.22.

[183] Transcript page 15.10.

[184] Transcript page 20.1.

[185] Transcript page 21.22.

[186] Transcript page 21.

[187] Transcript page 22.22.

[188] Transcript page 23.30.

[189] Transcript page 25.22.

[190] Transcript page 28.32.

[191] Transcript page 28.55.

[192] Transcript page 29.30.

[193] Transcript page 29.52.

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

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

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

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

[198] [1995] QCA 518.

[199] [2016] HCA 35; (2016) 258 CLR 308.

[200] [2020] QCA 158.

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

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

[203] Transcript day 3 p 46.7-15.

[204] Transcript day 3 pp 30-31; 44.33-45.5

[205] Also see transcript day 3 p 9.45-10.46; 35.39-41.

Close

Editorial Notes

  • Published Case Name:

    The Queen v LP

  • Shortened Case Name:

    The Queen v LP

  • MNC:

    [2020] QDC 218

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    09 Sep 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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