R v EST[2020] QDC 341

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant, EST, is charged on indictment 9/20 with the following counts:

1. (1)
   Counts 1, 2, 3, 5, 7 and 8 – indecent treatment of a child under 16, under 12, under care.

2. (2)
   Counts 4 and 6 – rape.

3. (3)
   Attempted indecent treatment of a child under 16, under 12, under care. 

2. [2]
   The counts were indicted as follows:

Count 1 – that on a date unknown between the 20th day of December 2013 and the 31st day of December 2013 at Kingaroy in the State of Queensland, EST unlawfully and indecently dealt with [the complainant], a child under 16 years, and [the complainant] was under 12 years, and EST had [the complainant] under his care for the time being. 

Count 2 – that on a date unknown between the 31st day of December 2013 and the 28th day of February 2014 at Kingaroy in the State of Queensland, EST unlawfully and indecently dealt with [the complainant], a child under 16 years, and [the complainant] was under 12 years, and EST had [the complainant] under his care for the time being. 

Count 3 – that on a date unknown between the 31st day of December 2013 and the 28th day of February 2014 at Kingaroy in the State of Queensland, EST unlawfully and indecently dealt with [the complainant], a child under 16 years, and [the complainant] was under 12 years, and EST had [the complainant] under his care for the time being.

Count 4 – that on a date unknown between the 31st day of December 2013 and the 28th day of February 2014 at Kingaroy in the State of Queensland, EST raped [the complainant].

Count 5 – that on a date unknown between the 31st day of December 2013 and the 28th day of February 2014 at Kingaroy in the State of Queensland, EST unlawfully and indecently dealt with [the complainant], a child under 16 years, and [the complainant] was under 12 years, and EST had [the complainant] under his care for the time being.

Count 6 – that on a date unknown between the 31st day of December 2013 and the 28th day of February 2014 at Kingaroy in the State of Queensland, EST raped [the complainant].

Count 7 – that on a date unknown between the 11th day of December 2014 and the 26th day of September 2015 at Urangan in the State of Queensland, EST unlawfully and indecently dealt with [the complainant], a child under 16 years, and [the complainant] was under 12 years, and EST had [the complainant] under his care for the time being. 

Count 8 – that on a date unknown between the 11th day of December 2014 and the 26th day of September 2015 at Urangan in the State of Queensland, EST unlawfully and indecently dealt with [the complainant], a child under 16 years, and [the complainant] Francie was under 12 years, and EST had [the complainant] under his care for the time being. 

Count 9 – that on a date unknown between the  11th day of December 2014 and the 26th day of September 2015 at Urangan in the State of Queensland, EST attempted to unlawfully and indecently deal with [the complainant], a child under 16 years, and [the complainant] was under 12 years, and EST had [the complainant] under his care for the time being. 

3. [3]
   The defendant pleaded not guilty to all counts.

4. [4]
   The complainant, [redacted], was born on 10 September 2006 (T1-19 ll.14-16 – Evidence of JH) and was seven years old at the earliest date alleged (count 1 – 20/12/2013) and nine years old at the latest date alleged (count 9 – 26/9/2015).

Particulars

5. [5]
   The Crown provided written particulars (exhibit A) in the following terms:

Count 1 – indecent treatment of a child under 16, under 12, under care.

The defendant touched the complainant’s vagina with his finger/s. 

This occurred after he put cream in between the legs.

Count 2 – indecent treatment of a child under 16, under 12, under care.

The defendant rubbed his groin against the complainant’s body. 

This occurred during the same occasion as counts 3-6.

Count 3 – indecent treatment of a child under 16, under 12, under care.

The defendant licked the complainant’s vagina. 

This occurred during the same occasion as counts 2, 4, 5 and 6. 

Count 4 – rape.

The defendant penetrated the complainant’s vagina to any extent with his penis.

This occurred during the same occasion as counts 2, 3, 5 and 6.

Count 5 – indecent treatment of a child under 16, under 12, under care. 

The defendant forced the complainant’s hand onto his penis. 

This occurred during the same occasion as counts 2, 3, 4, 5 and 6. 

Count 6 – rape.

The defendant penetrated the complainant’s mouth to any extent with his penis. 

This occurred during the same occasion as counts 2-5.

Count 7 – indecent treatment of a child under 16, under 12, under care.

The defendant licked the complainant’s vagina in the bathroom. 

This occurred on the same day as count 8.

Count 8 – indecent treatment of a child under 16, under 12, under care.

The defendant licked the complainant’s vagina in the bathroom. 

This occurred on the same day as count 7.

Count 9 – attempted indecent treatment of a child under 16, under 12, under care.

The defendant attempted to touch the complainant’s vagina/genital/groin. 

This occurred in a toilet block. 

Elements

6. [6]
   In respect of each of the counts of indecent treatment of a child under 16, under 12, under care, the prosecution must prove beyond reasonable doubt that:

1. (1)
   the defendant dealt with the complainant; 

“Deals with” includes touching of the child, which can be by any part of the defendant’s body.

2. (2)
   the dealing was indecent;

Indecent bears its ordinary everyday meaning i.e. what the community regards as indecent.  Indecency must always be judged in the light of time, place and circumstances.

3. (3)
   the dealing was unlawful i.e. not justified, authorised or excused at law;

4. (4)
   the complainant was under 16 years; 

5. (5)
   the complainant was under 12 years;

6. (6)
   At the relevant time the complainant was under the care of the defendant i.e. that the defendant was responsible for the control and supervision of the complainant.

7. [7]
   In respect of each of the counts of rape, the prosecution must prove beyond reasonable doubt, relevantly:

Count 4

1. (1)
   that the defendant penetrated the vagina of the complainant;

2. (2)
   to any extent;

3. (3)
   with the defendant’s penis;

4. (4)
   without the consent of the complainant. 

Given that the child was under 12 at the relevant time, consent is irrelevant (Criminal Code s. 349(3)).

Count 6 – the prosecution must prove beyond reasonable doubt:

1. (1)
   that the defendant penetrated the mouth of the complainant;

2. (2)
   to any extent;

3. (3)
   with the defendant’s penis; 

4. (4)
   without the consent of the complainant.  As noted above, the child was under 12 and consent is irrelevant.

8. [8]
   In respect of the charge of attempted indecent treatment of a child under 16, under 12, under care, the prosecution must prove, beyond reasonable doubt, that:

1. (1)
   the defendant attempted to deal with the complainant;

2. (2)
   the dealing was indecent;

3. (3)
   the dealing was unlawful;

4. (4)
   the complainant was under 16 years;

5. (5)
   the complainant was under 12 years;

6. (6)
   at the relevant time the complainant was under the care of the defendant. 

9. [9]
   Criminal Code s. 4 defines “Attempts to commit offences” as follows:

1. (a)
   When a person intending to commit an offence begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.

2. (b)
   It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender’s part for completing the commission of the offence, or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender’s intention.
3. (c)
   It is immaterial that by reason of circumstances not known to the offender it is impossible, in fact, to commit the offence.
4. (d)
   The same facts may constitute one offence and an attempt to commit another offence.

The evidence

10. [10]
    The complainant took part in an Evidence Act s. 93A interview with DSC Jason Hendren on 29.5.2019 (exhibit 1; exhibit B (transcript)).

11. [11]
    The complainant’s evidence was pre-recorded in this court pursuant to Evidence Act s. 21AK on 5 June 2020 (exhibit C; exhibit B (transcript)) and further on 19 October 2020 (exhibit E; exhibit F (transcript)).

12. [12]
    The child witness NB took part in an Evidence Act s. 93A interview with DSC Jason Hendren on 21.7.2019 (exhibit 5; exhibit B (transcript)) and his evidence was pre-recorded on 5.6.2019 (exhibit H; exhibit B (transcript)).

13. [13]
    Evidence was also given by:

1. (a)
   LP (the defendant’s mother);

2. (b)
   JH (the complainant’s mother and former partner of the defendant);
3. (c)
   CH (the complainant’s maternal grandmother; mother of JH);
4. (d)
   DSC Jason Hendren (the investigating officer).

14. [14]
    The following exhibits were also tendered: –

1. (a)
   Exhibits 2.1, 2.2, 2.3 – photographs of the home screen and two pages of text messages on the complainant’s phone relevant to preliminary complaint to NB and CH.
2. (b)
   Exhibit 3 – four photographs of a party with images of the defendant, the complainant and the complainant’s siblings;  exhibits 3.1 and 3.2 – two photographs of the bathroom of the unit at 4/550 Charlton Esplanade, Urangan.
3. (c)
   Exhibit 6 and 7 – screen grabs of Facebook posts by JH from 17 and 19 December 2013.
4. (d)
   Exhibit 8 – screen grabs of Facebook posts by JH – 20 December 2013.
5. (e)
   Exhibit 9 – screen grab of Facebook post with door circled in background.

15. [15]
    Pursuant to Criminal Code s. 644, the prosecution and defence jointly agreed on the following admissions (exhibit I): –

It is formally admitted that pursuant to section 644 of the Criminal Code, that:

1. (1)
   Rental records obtained by police reveal that JH rented unit 4/550 Charlton Esplanade, Urangan from 12.12.2014 and vacated on 15.09.2015.
2. (2)
   The defendant was remanded in custody during the following period:

   1. between 5.06.2014 and 21.11.2014;
   2. between 08.03.2017 and 23.04.2019.

Principles – judge only trial

16. [16]
    In respect of the principles to be applied in a judge only trial, I refer to and respectfully adopt the exposition of those principles set out by Smith DCJA in R v MMH [2020] QDC 70 [7] – [10], supported by the cases and legislation cited in those paragraphs of His Honour’s judgment.

Directions

17. [17]
    I set out the further directions with which I must conduct these proceedings in a judge only trial.

1. (1)
   I must reach my verdict only on the evidence;  which is detailed in this judgment.

2. (2)
   In addition to facts proved by evidence I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant.

3. (3)
   The burden rests on the prosecution to prove the guilt of the defendant beyond reasonable doubt.  There is no burden on the defendant who is presumed to be innocent.  I dismiss all feelings of sympathy or prejudice, regardless of who is involved and regardless of the nature of the allegations or charges.

4. (4)
   I am required to assess the credibility and reliability of witnesses and I may accept or reject such parts of the evidence as I see fit in fulfilling that fact-finding function.

5. (5)
   The defendant has not given 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 onus 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 gaps in the evidence led by the prosecution.  It proves nothing at all and I do 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 of proving the guilt of the defendant beyond a reasonable doubt.

6. (6)
   In respect of the s. 93A statements of the child witnesses, I direct myself that the taking of evidence in this way for a child witness is a routine practice in matters such as this and I draw no adverse inference in respect of the defendant.

7. (7)
   In respect of the s. 21AK evidence by the child witnesses, I direct myself in accordance with the provisions of the Evidence Act s. 21AW. 

8. (8)
   Preliminary complaint evidence is contained in the accounts given by the witnesses NB and CH as to what each says the complainant told them (either personally or by text or by observation of text) about the alleged offending her by the defendant.  In relation to that evidence, the preliminary complaint contained within that evidence given by those witnesses, I direct myself as follows.  That evidence may only be used as it relates to the credibility of the complainant. Consistency between the account of the complainant about the alleged offence or offences and what the complainant said as reported by the preliminary complaint witnesses is something I may take into account as possibly enhancing the likelihood that the complainant’s testimony is true.  In addition, I may also take into account any inconsistencies between the accounts given by the complaint witnesses and the accounts as given by the complainant in assessing the complainant’s credibility.  I cannot however regard the things said in the out-of-court statement by the complainant as proof of what if anything actually happened.  In other words, evidence of what was said on those occasions to the preliminary complaint witnesses may, depending on the view I take of it, bolster the complainant’s credit because of consistency but it does not independently prove anything.

9. (9)
   I direct myself that the transcripts provided are only aids, and I have formed my own conclusions about what I saw and heard, making appropriate amendments to the supplied transcripts, when necessary.  The evidence is what the child witnesses have said and done on the video recordings played in the trial. 

10. (10)
    I have heard evidence of other conduct which has taken place between the defendant and the complainant, and the defendant and JH, which provides background as to what occurred and the incidents which are the subject of the alleged offences.  If I accept this evidence, it does not make it more probable that the defendant committed the alleged offences.  The evidence is relevant only to provide background to the incidents which the prosecution allege were the charged offences.

11. (11)
    In this case there was a delay in the complaint being made by the complainant.  It is important that I appreciate the effects of that delay on the ability of the defendant to defend himself by testing the prosecution evidence and/or bringing forward evidence in his own case.  The specific difficulties for the defendant in this trial arise from:

• the delay between the time of each of the alleged incidents and the time the defendant was told of the complaint;
• the age of the complainant at the time of the alleged incident;
• the answers given by the complainant in the s. 21AK hearing on 5 June 2020, indicating a lack of memory of some of the events the subject of or relevant to the charges.

I direct myself that the delay means that evidence relied upon by the Crown cannot be as fully tested as it might otherwise have been.  Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant’s memory for details would have been clearer.  This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it.  Had the defendant learned of the allegation at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant. 

Another aspect of the defendant’s disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted or supported his case or both. 

I also take into account that because of the delay the defendant has lost the opportunity to bring forward evidence from other sources including, but limited to photographs, phone and other records.

I direct myself that in considering the evidence in this case I need to take into account the disadvantage that the defendant is at, which means that the complainant’s evidence has not been tested to the extent that it otherwise could have been nor has the defendant been able to bring forward evidence to challenge it.

12. (12)
    Separate charges have been preferred.  I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I’m satisfied beyond reasonable doubt that the prosecution as proved its essential elements.  I will return separate verdicts for each charge.

The evidence in relation to the separate offences is different and so my verdicts need not be the same. 

The elements of the offences are different, and so my verdicts need not be the same.

13. (13)
    If I have a reasonable doubt about the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account by me in assessing the truthfulness or reliability of her evidence generally. 

14. (14)
    There is evidence in the trial that the defendant was in custody at various times during the timeframes relevant to the charges and the complainant’s disclosure, and it appears the defendant is currently in custody.  I direct myself that the defendant’s custodial status at any given time including now is irrelevant to my consideration of the evidence in this trial and should be ignored completely, other than its relevance to significant dates in the chronology of events.

15. (15)
    In cross-examination, the complainant was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant.

16. (16)
    I direct myself that if I reject the motive to lie put forward on behalf of the defence, that does not mean that the complainant is telling the truth.  It is for the prosecution to satisfy me that the complainant is telling the truth;  for it is the prosecution’s burden to satisfy me beyond reasonable doubt of the guilt of the defendant.

Overview

18. [18]
    The complainant, [redacted], was born on [redacted] 2006 and was aged 7-9 at the relevant times.

19. [19]
    The defendant, EST, was the partner of the complainant’s mother, JH, and was the complainant’s de facto stepfather at all relevant times. He’s also the father of the complainant’s brother, [redacted], the son of the defendant and JH, who was born on [redacted] 2013.

20. [20]
    In December 2013, the complainant, her younger sister [redacted], the defendant and JH were living at a house in Kingaroy.

21. [21]
    The complainant’s evidence is that when her mother went to hospital to give birth, she and the defendant came home to get her mother’s clothes, and the defendant rubbed eczema cream on her vagina (count 1).

22. [22]
    The complainant says that after her mother came out of hospital with the baby, the defendant and her mother had a big argument. The family was still living in Kingaroy. The complainant was sleeping in her mother’s bed; her mother slept elsewhere after the argument and the defendant got into the bed, pulled her really close, “like partners”, and was humping her. She could feel his hard penis (count 2).

23. [23]
    The defendant then took off the complainant’s underwear and licked her vagina (count 3) while telling her not to tell her mum.

24. [24]
    The defendant then said “if this hurts tell me” before taking down his pants and inserting his penis in her vagina (count 4). The complainant told him it hurt.

25. [25]
    The defendant then told the complainant to give him her hand, and he made her give him a “handjob” (count 5).

26. [26]
    The defendant then told the complainant to lick his penis. She said “no”, and he grabbed his hand, put her head down and put his penis in her mouth (count 6). The complainant said she needed to go to the toilet, walked out, and went and lay down beside her mother who was in the complainant’s bed.

27. [27]
    The defendant went to jail after the events of Kingaroy, and the family moved to Hervey Bay. They were living with the defendant after he got out of jail, in a unit [redacted], on the Esplanade near the Urangan Pier.

28. [28]
    On one occasion, the complainant went to the toilet, and when she walked out, the defendant asked if she wanted to have fun, she froze, he put her on top of the washing machine, which was in the bathroom, took down her pants, licked her vagina and offered her $50 if she would let him keep doing it (count 7).

29. [29]
    The defendant did the same thing that night. The defendant did the same thing again that night, around 9 or 10 o’clock, and offered her another $50 (count 8). On each occasion on the washing machine the defendant licked the complainant’s vagina up, down and in the middle, but his tongue didn’t go in.

30. [30]
    The final offence occurred on the Saturday or Sunday, at the toilets at the Urangan Pier markets. The defendant asked the complainant to go for a walk and she took her dog. The complainant wanted to go to the toilet, tied up her dog outside, the defendant came into the toilet with her “in case something happens”, the complainant went to the toilet and as she got up from the toilet, the defendant said “keep your pants down and let’s have some fun”, and went to touch the complainant. The complainant backed up, pulled up her pants and said “no”, then went outside, got her dog and started walking (count 9). There was no actual touching of the complainant by the defendant during this episode.

31. [31]
    The complainant made no complaint in respect of any of these matters at the time.

32. [32]
    On 27 May 2019 the complainant was living with her maternal grandmother, CH. CH used the complainant’s phone to communicate with her son via Instagram (she had been blocked on her own Instagram account from communicating with her son). She saw a message on the complainant’s phone “did he rap (sic) you” and thought a friend of the complainant’s was in danger. CH tried to wake the complainant, but the complainant went back to sleep. CH scrolled through the messages and discovered it was the complainant who was messaging her then-boyfriend, NB.

33. [33]
    CH talked next morning to the complainant about the messages, and asked if it had happened to her. The complainant said “yes”. CH then challenged the complainant as to whether what she said was true, in strong and direct terms. When the complainant said that it was true, after having a coffee and thinking about it, CH then took the complainant to the police.

34. [34]
    NB gave evidence in an s. 93A interview and in a pre-recorded s. 21AK video recording. His evidence was that the complainant messaged him and said that she had been raped before, by her stepdad. The complainant said she was telling him because she trusted him.

35. [35]
    The defendant’s mother, LP, gave evidence that she stayed with the defendant and JH at Kingaroy from 14 December 2013 until a couple of days after the baby was born (on 23 December 2013). Her evidence was that the defendant and JH went to the hospital on 22 December 2013 and neither returned up until 24 or 25 December 2013 and meanwhile Ms LP looked after the children (the complainant and her sister [redacted]). Ms LP was not aware of any time the defendant was alone with any of the children while she was staying with the family.

36. [36]
    JH gave evidence that she went to the hospital on the day she had a caesarean birth of [the complainant’s brother], which was 23 December 2013 and she came home on 24 December 2013. Her evidence was that the defendant left the hospital after the caesarean and that he did not stay overnight at the hospital.

37. [37]
    JH recalled LP arriving the night before the caesarean and leaving the baby before Christmas. However in cross-examination when shown screen grabs of postings on her own Facebook, she accepted that Ms LP was at their place from 17 December 2013 through 19 and 20 December 2013.

38. [38]
    JH gave evidence that her son [redacted] stopped breathing the day after Christmas and had to be taken back to hospital, and that Ms LP was no longer there by that time, and it was the defendant who was looking after the children.

39. [39]
    JH confirmed that the complainant suffered from eczema since she was crawling, but not on her vagina. Treatment was mainly applying steroid creams. Both she and the defendant administered the cream, and the complainant still had eczema in 2013.

40. [40]
    JH gave evidence that after the defendant came out of prison, she moved into Unit 4, 550 Charlton Esplanade, Urangan with him and the children from December 2014 until October 2015 (although I note that the admissions clarify that the family moved out on 15 September 2015).

41. [41]
    JH gave evidence that there was a washing machine in the unit in the space in the bathroom shown on exhibit 3.2. Although challenged in cross-examination as to whether the washing machine was in fact outside in the common area, and in respect of the further issue as to why she had not recalled that the washing machine was inside the unit in her first police statement, Ms JH was not shaken on her evidence that there was a washing machine in the bathroom of the unit at the relevant time.

42. [42]
    DSC Jason Hendron gave evidence that exhibits 3.1 and 3.2 (photographs of the unit bathroom) were obtained from the unit’s real estate agency through a search warrant, and that metadata from the photographs revealed a date of 21 October 2015 on which they were taken.

43. [43]
    DSC Hendron gave evidence that he photographed the text messages between the complainant and NB, which were on the complainant’s phone. (Exhibits 2.1-2.3)

44. [44]
    In cross-examination DSC Hendron accepted that he’d never looked at, or photographed the toilet block where count 9 was said to have occurred; nor had he entered the unit or looked at the rear of the units in respect of any common area where the events of count 7 and 8 are said to have occurred.

Discussion

45. [45]
    Prosecution and defence both agree that the charges against the defendant depend entirely on my assessment of the credibility and reliability of the complainant. Her evidence is uncorroborated, although there is evidence which supports where she and her family were living in 2013, in Kingaroy, and the living arrangements at the unit at Urangan (subject to the disputed issue about the washing machine).

46. [46]
    There was preliminary complaint evidence from the complainant’s then boyfriend NB, and the complainant’s grandmother CH, arising from the text messages (exhibits 2.1-2.3) to the effect that the defendant (the complainant’s stepfather) had raped her.

47. [47]
    The evidence from the complainant’s mother, JH, supports the complainants evidence about her eczema, the use of creams (including that the defendant also applied cream to the complainant) and supports evidence of opportunity, both at Kingaroy and at the unit at Urangan.

48. [48]
    The evidence of LP places her at the Kingaroy home from at least 17 December 2013 (exhibit 6) until sometime around or shortly after Christmas day. There is conflict between her evidence and JH’s evidence as to whether the defendant had the opportunity to be alone with the complainant at the relevant time, which the complainant places as the day before [the complainant’s brother] was born (i.e. on 22 December 2013).

49. [49]
    JH gave evidence that there was a washing machine in the bathroom at the unit at Urangan. As indicated, although challenged in cross-examination, she did not resile from that evidence, and there was no other evidence that there was a washing machine in the common area, and not in the unit. In the absence of any other evidence, I accept Ms CH’s evidence on this particular issue.

50. [50]
    My overall assessment of the complainant was that her evidence was honest and truthful i.e. credible.

51. [51]
    She was able to give evidence in respect of a range of sexual acts, including:-

1. (1)
   The rubbing of cream on her vagina (count 1 – exhibit B, p. 3 ll.42-52; p. 6 ll.37-p. 7 l.43;  p. 7 l.21-p. 8 l.38;  p. 8 l.53-p. 9 l.22);

2. (2)
   The rubbing of a hard penis against her (count 2 – exhibit B, p. 4 ll.5-9;  p. 12 l.25-p. 13 l.7;  p. 17 l.39-p. 22 l.38);

3. (3)
   The insertion of a male penis into her vagina (count 4 – exhibit B, p. 4 l.22-27;  p. 13 ll.14-18;  p. 24 l.11-p. 26 l.16);

4. (4)
   Male masturbation (count 5 – exhibit B p. 4 ll.26-29;  p. 13 ll.18-20;  p. 24 ll. 37-38;  p. 26 l.9-p. 28 l.7);

5. (5)
   Male guided fellatio (i.e. the insertion of a penis in the complainant’s mouth) (count 6 – exhibit B p. 4 ll.29-37;  p. 13 ll.20-29;  p. 28 l.8-p. 29 l.14)

6. (6)
   The licking of her vagina on a number of occasions;

Count 3 – exhibit B p. 13 ll.11-14;  p. 22 l.40-p. 24 l.6;

Count 7 – exhibit B p. 5 ll.7-22;  p. 36 l.31-p. 40 l.19

Count 8 – exhibit B p. 5 ll.20-22;  p .40 l.21-p. 42 l.30;

7. (7)
   An attempt to touch her vagina with the defendant’s hand (count 9 – exhibit B p. 5 ll.22-45;  p. 42 l.58-p. 45 l.39).

52. [52]
    The complainant gave evidence at two separate pre-records on 5 June 2020 (exhibit T; exhibit E) and 19 October 2020 (exhibit E; exhibit F). The complainant did have difficulty remembering aspects of what had occurred, in particular in the pre-record on 5 June 2020, when she was unable to recall when asked questions about various matters on frequent occasions. However, an ability or apparent inability to fully cross-examine a complainant does not mean for that reason alone, I should reject all or any of the s. 93A evidence (R v Allen (a pseudonym) [2020] QCA 233).  The complainant was cross-examined on a second occasion as I’ve noted, and on neither occasion did she resile from any of the evidence in respect of any of the offences, nor did she accept that the events did not occur, and/or that she was lying.  In addition she rejected the motive for lying (in respect of the boyfriend) that was put to her. 

53. [53]
    The detail in the complainant’s evidence in respect of the various sexual acts; the age appropriate language that she used to describe the relevant events (noting that she was 7-9 at the time of the alleged events; 12 at s. 93A interview, 13 and just 14 at the s. 21AK pre-records); the clear progression she describes from the initial rubbing of her vagina (count 1) through the rubbing of a penis against her (count 2), male/female oral sex (count 3), intercourse (which stopped when she said that it hurt) (count 4); male masturbation with the defendant’s hand on hers (count 5); female/male oral sex, i.e., fellatio (count 6); then two episodes of male/female oral sex (counts seven and eight) and an attempted vaginal touching (count nine); all bespeak of a ring of truth and a lived experience from a young child. With respect, there is nothing about the detail of any of the sexual acts the complainant describes which has the indications or markers of fabrication, fantasy or of considered and deliberate dishonesty.

54. [54]
    On the contrary, all the acts the complainant describes might be considered entirely normal, unremarkable and unexceptional examples of adult sexual activity, if consensual. Their description, by a child, at her age, both when the events were said to have occurred, and when she was being interviewed by police, and subsequently when giving evidence, ring true and are entirely believable, coherent and utterly plausible. To the extent that the preliminary complaint provides some support for the allegation of rape (most logically given she was a child at count 4) I consider that it supports her credibility and reliability.

55. [55]
    In respect of count 1 (the eczema cream incident) I accept that LP was present in the defendant’s household at Kingaroy at least from 17 December 2013 until sometime around Christmas day. However, I do not accept that her presence made the commission of this offence impossible. Whether the complainant was mistaken about the date or the precise confluence of events which led to the opportunity for the offence to occur does not, in my view, require resolution. In my view the child’s description of the events, together with what I consider was an opportunity for that offence to have occurred, whether subsequently to LP (perhaps as late as 26 December 2013, when the child [redacted] was taken back to hospital because he wasn’t breathing), or at some other occasion before or after Christmas, is in my view irrelevant. It follows that I accept, beyond reasonable doubt that the events subject of count 1 occurred.

56. [56]
    In respect of counts seven and eight, there is, again, an issue as to whether there was a washing machine in the bathroom of the family’s unit at Urangan, and therefore whether those events could have occurred as the child describes, being lifted up onto the washing machine. In that respect, despite what was put to Ms CH in cross-examination (which she rejected and was therefore not evidence), and in the absence of any evidence for the contrary, I accept her evidence that there was a washing machine in the unit as the complainant says, and in the spot that Ms CH identifies, beside the wash basin in the bathroom. It follows that I accept beyond reasonable doubt that the events of count 7 and 8 occurred as the complainant describes.

57. [57]
    I have carefully considered each of the directions that I’ve outlined at length in these reasons.

58. [58]
    In the absence of any evidence from or on behalf of the defendant, my assessment must be based solely on the prosecution evidence. I note that the prosecution, pragmatically, has chosen to tender some photographic/Facebook evidence that was originally supplied by the defence but of course it becomes part of the prosecution case and is considered in that light.

59. [59]
    In my view, the credibility and consistency of the complainant’s evidence is, as I’ve indicated supported to the limited extent of there being a complaint about rape, by the preliminary complaint evidence.

60. [60]
    I accept that any discreditable conduct by the defendant plays no part in my assessment of the complainant’s evidence.

61. [61]
    I have carefully considered the issue of delay and consider that it does not affect my assessment of the complainant’s evidence, although I’ve given the proper allowances that I’ve identified in that direction.

62. [62]
    I do not have a reasonable doubt in respect of the complainant’s evidence in respect of any of the charges.

63. [63]
    I have completely disregarded the defendant’s custodial status, other than (as indicated) its relevance to the timeframes and the circumstances of the alleged offending.

64. [64]
    I note the photographs of the complainant at the defendant’s “Welcome home from jail” party (exhibit 3). However, such conduct by the complainant does not, in my view, detract from her credibility in respect of the events alleged relevant to the charges. Human experience is that victims, especially children, can and do behave perfectly normally even when the victims of offending by (as here) a stepfather. As is often the case, there are conflictual aspects to such a relationship, which do not necessarily indicate that the complainant is not telling the truth about the allegations of sexual misconduct.

65. [65]
    I reject the motive to lie put forward by the defendant in respect of the complainant. I do not consider that this complaint (which landed up with the police via the mechanism of the complainant’s grandmother) was merely an attempt to impress or deal with a boyfriend or a relationship that had been boyfriend and girlfriend, and that the matter then somehow got out of hand and that the child persisted with the complaint. I accept, however, in rejecting the motive to lie, that does not mean that the complainant is telling the truth, but rather it remains for the prosecution to persuade me, beyond reasonable doubt, that she is truthful about the events subject of each of the nine counts.

Conclusion

66. [66]
    In respect of each of counts 1, 2, 3, 5, 7 and 8, and 9, I have no hesitation in concluding beyond reasonable doubt that the complainant was under 16, under 12 (her date of birth was 10 September 2006) and under care (all the evidence from the complainant, JH and LP is that the defendant was the complainant’s stepfather at the relevant times).

67. [67]
    In respect of each of counts 1, 2, 3, 5, 7 and 8, I am satisfied, beyond reasonable doubt, relevantly that there was a dealing, that it was indecent (count 1, rubbing cream on the complainant’s vagina; count 2, rubbing a hard penis against the complainant; counts three, seven and eight, licking the complainant’s vagina; count 5 – using the complainant’s hand to masturbate the defendant); and further that it was in each case unlawful.

68. [68]
    In respect of count nine, I’m satisfied beyond reasonable doubt that the defendant attempted to touch the complainant’s vagina or vaginal area, on the toilet, while she had her pants down, satisfying the definition of an attempt, and the dealing (if completed), would clearly have been indecent and unlawful.

69. [69]
    In respect of count 4, I’m satisfied beyond reasonable doubt that the defendant inserted his penis in the complainant’s vagina, without her consent. She was under 12, so consent is of course irrelevant.

70. [70]
    In respect of count 6, I’m satisfied beyond reasonable doubt that the defendant inserted his penis in the complainant’s mouth without her consent. She was under 12, so again consent is clearly irrelevant.

71. [71]
    It follows that I accept the Crown has proved beyond reasonable doubt each of the elements of each of counts 1 through nine on the indictment. I find the defendant guilty of each of counts 1, 2, 3, 4, 5, 6, 7, 8 and 9.

72. [72]
    For clarity, in respect of the issue of the washing machine, I’m grateful to counsel, both prosecution and defence, bringing my attention to the evidence of the defendant’s mother, Deborah Kennewell, located at T1-16, 1-17. Ms Kennewell identifies that there was an outside laundry at the unit at the Esplanade, and that her ex-partner, “If I remember correctly”, had helped get a washing machine. She also gave evidence that there was not a washing machine inside.

73. [73]
    I accept that I was incorrect in stating in the reasons that there was no evidence of a washing machine outside. However, having considered the evidence of Ms Kennewell and the evidence of Shannon Renata, who of course was living in the unit and utilising the washing machine, I consider that the evidence of Ms Renata should be accepted on that issue beyond reasonable doubt. And I identify for the record that it does not detract from my finding of guilt in respect of each of counts 7 and 8.