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R v JCN QDC 224
DISTRICT COURT OF QUEENSLAND
R v JCN  QDC 224
89 of 2019
Judge only trial
District Court at Southport
15 September 2021
1 and 2 September 2021
Jackson QC DCJ
Not guilty on the count of indecent treatment of a child under 16, under 12, under care
CRIMINAL LAW – JUDGE ONLY TRIAL – PARTICULAR OFFENCE – OFFENCE AGAINST THE PERSON – SEXUAL OFFENCE – VERDICT – where the defendant is charged with one count of indecent treatment of a child, under 16, under 12 and under care – where the complainant was in foster care and the defendant provided respite care to the complainant – where the alleged offending occurred in late 2010 or early 2011 – where there was a delay in prosecution and the police investigation was deficient in some respects– whether the complainant’s evidence as to the identity of the defendant lacks reliability – whether the defendant is guilty or not guilty of the charge
Criminal Code Act 1899 (Qld), s 615B, s 615C
Evidence Act 1977 (Qld), s 93A, s 21AK, Division 4A
R v Pentland  QSC 231, cited
M Whelan for the Crown
L Reece for the Defendant
Office of the Director of Public Prosecutions (Qld) for the Crown
Potts Lawyers for the Defendant
- This is a judge only trial. The application for the trial to be conducted by judge alone was granted on 19 May 2021. Section 615B of the Criminal Code Act 1899 (Qld) (“Criminal Code”) provides that so far as is practicable the same principles of law and procedure are to be applied as would the case in a jury trial. Section 615C (3) of the Criminal Code requires these reasons to include the principles of law that I have applied as well as the findings of fact on which I have relied.
- The defendant is charged with one offence to which he has pleaded not guilty:
That on a date unknown between the thirtieth day of December 2010 and the fourteenth day of March 2011 at Gold Coast in the State of Queensland, [the defendant] unlawfully and indecently dealt with [the complainant], a child under 16 years.
And [the complainant] was under 12 years.
And [the defendant] had [the complainant] under his care, for the time being.
- The crown particulars are that the defendant indecently dealt with the complainant by touching her inner thigh under her nightgown with his hand. The complainant was under the care of the defendant, as the Department of Child Safety (“the department”) had placed the complainant with the defendant for respite care.
- The defendant’s position is that the incident as described by the complainant simply did not occur. However, the defendant submitted that should the court be satisfied that the incident occurred, the question of whether the conduct was indecent must be considered in light of certain features of the crown case.
Elements of the offence
- In order to prove the offence of indecent treatment of a child under 16, under 12, under care, the crown must satisfy me that:
- (1)The defendant dealt with a child;
“deals with” includes a touching of the child, by any part of the defendant’s body and the touching of the defendant by the child.
- (2)The dealing was indecent;
“indecent” bears its ordinary every day 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)The dealing was unlawful;
“unlawful” means not justified, authorised or excused by law.
- (4)The child was under 16 years of age;
there is no dispute that the complainant was under 16 years of age. Her date of birth was admitted.
- (5)The child was under 12 years of age;
there is no dispute that the complainant was under 12 years of age. Her date of birth was admitted.
- (6)The defendant had the child under his care.
“under his care” is an ordinary English expression. It means at the time alleged the defendant was responsible for the control and supervision of the child. It does not require any formal legal process to have occurred such as an order for custody. Account should be taken of such things as the age of the child, how the child came to be with the defendant and why the child was with the defendant. It is uncontroversial that the defendant had the complainant under his care for the dates admitted in a joint admissions document. There is contest as to whether the defendant had the complainant under his care on additional dates.
- My role is to determine whether the defendant is guilty or not guilty of the offence.
- I will now set out the factual background and a summary of the evidence and rival submissions, followed by the directions I have given myself and my consideration of the issues.
- The complainant and her five siblings were placed into foster care with their foster parents when the complainant was eight months old. At the time of the alleged offending the complainant was seven years old, her younger brother was six, her older sister was 10 and her three older brothers were aged nine, 13 and 14.
- The complainant’s foster parents were provided respite through the organisation ‘Life Without Barriers’. The complainant and her siblings would be placed into respite care, usually from Friday to Sunday. Respite was provided fortnightly from when the children were placed into care with their foster parents, although at a later time (which is not relevant to the alleged offending) respite changed so as to be less frequent but for longer periods. The complainant and her siblings went to numerous different respite carers throughout the years.
- The defendant and his wife were respite carers and it is admitted that the defendant had the complainant under his care on 10-16, 28 and 30 January 2011 and 11-13 and 25-27 February 2011. The crown and the defendant are at odds about whether the defendant also had the complainant under his care between 31 December 2010 and 2 January 2011 and whether all the complainant’s five siblings were placed together with the defendant and his wife each time.
- It is alleged that the defendant indecently dealt with the complainant during one of those respite placements. The complainant’s disclosure of the offending occurred in the context of the department investigating the defendant for allegations not related to this trial.
Complainant’s first section 93A statement
- The complainant first participated in an interview with police on 19 September 2017 when she was 14 years old. She told police that she had come to speak with them about something that happened to her in a respite home when she was six or seven years old. She said that it happened when she was sleeping in her bed on the first or fourth time that she and her siblings stayed there. She said that she was wearing a nightgown, with no underwear on, and that she was sleeping alone in a room. She said that her youngest two brothers slept in a room on the top floor of the house that had bunkbeds in it, but that the older of those two moved downstairs onto a fold out bed. She said that her sister slept in the other room on the top floor of the house and that she slept in the big room on the first floor of the house. She said that she and her sister would swap rooms every time they went there. In this interview she said that she could not remember whether her oldest two brothers went to the respite placement with her. In any event, she did not give any evidence about where the older two would have slept or what they were doing.
- She described the room in which she slept as having a double or queen bed that had a white bed frame in the middle, two bedside tables with lamps, white drawers and that the bedspread was pink, and the window had pink curtains.
- She said that at around 7:30-8:30pm the defendant came home from work and that she went to bed at around 9:00pm. She said the defendant worked in construction. She said that when the defendant got home, everyone was chatting. When asked who she was referring to the complainant said the defendant’s wife’s name and then got confused as she said that there was a different respite carer who had that same name.
- She said that when she went to bed, she was in the big room alone and she was positioned in the middle of the bed and on top of the blankets. She said she remembers the lamp was still on and that she woke up to the defendant touching her. She said that he was not fully lifting up her nightgown but that he was touching her upper inner thigh and that when she woke up, he just pulled his hand away. She said the defendant was on the right side of the bed towards the middle.
- She said she froze when she first awoke and then asked the defendant what he was doing to which he responded that he was just checking up on her. She said that they may have talked for a minute and then the defendant left, and she got under the blankets and went back to sleep. She said that she knew it was the defendant as the lamp was on and she remembered his face and that ‘he was the only other full-grown male in the house’. She said that when she was younger she would talk and scream in her sleep.
- She said that she initially did not tell anyone about what happened because she did not know how to tell anyone, and she felt like no one would believe her. She said that the first person she told was her foster father when he picked up her and her younger and older brother from school. She said they were in the car and her foster father told her that someone from the department was coming to ask her questions about a respite placement she had been in. She said that her foster father mentioned that she probably would not remember who they were, but that as soon as he said a placement, she knew who he was talking about. She said that during this conversation, her foster father told her that it would have happened when she was ‘six or seven years old’. She said she told her foster father that she did not like ‘those people’ and he said that she has to tell the department that. She said that her brothers were in the car when she disclosed the alleged offending.
- She said that some ladies came from the department to speak with her and that they also interviewed her older sister, who told them that nothing had happened to her. She said that she then decided to tell her foster mother about what happened because everyone else knew. She said that the department told her foster parents not to speak with her about the alleged offending and that the defendant never told her not to say anything.
- She described that the defendant’s wife had bought the complainant and her sister fish at one time. She also described an incident where the defendant had put their ‘puppy’ in the pool and that the puppy had a fear of water.
Complainant’s second 93A statement
- The complainant participated in a further interview with police on 7 August 2018 when she was 15 years old. The purpose of this second interview was to clarify exactly where the complainant alleged that the defendant touched her.
- She clarified that she was not touched on the vagina by the defendant. She said that she was touched on the inner area of her thigh and she drew a diagram of the location. After much discussion about the exact area, the complainant estimated using her fingers how far away from her vagina that the defendant touched her. It was estimated by the police officer to be about two inches.
- She described that she woke up to the defendant’s hand ‘gliding away’. She said that he was on the edge of the bed leaning over. She explained that after this incident she slept in the room upstairs and her sister slept in the big room. She said this is because she was scared to go back into the big room.
- She again talked about the incident where the defendant put the puppy into the pool.
Complainant’s section 21AK evidence
- The complainant gave evidence in court on 10 March 2021 when she was 17 years old. She said that everything she told the police in her two 93A statements was the truth.
- She clarified that in her diagram of the room she slept in, she had depicted the defendant sitting on the bed with his legs off to the side of the bed and leaning towards her.
- She said that the person who touched her was 100 percent the defendant and she knows this because she was able to see him clearly when he was sitting on the bed. She said that the defendant was still in his work clothes which had orange stripes around his arms, and he looked a little bit dirty.
- When asked if her oldest two brothers would go to the defendant’s house for respite, she said that they were there when she went there. She said that her two oldest brothers slept downstairs on the pull-out bed together. She rejected the suggestion that her oldest two brothers never went on respite care at the defendant’s house with her. She did recall that there was a time where her brothers stopped going there.
- In cross-examination she spoke again about the sleeping arrangements. She rejected that there was a bedroom upstairs that had two white single beds in it and she rejected that she always slept in that room with her older sister. She said that she remembers sleeping in the big room alone on the night of the incident and that there were pink curtains. She said that at some stage they changed to purple curtains and explained that when she would swap sleeping in that room with her sister, the defendant and his wife would swap the colour scheme to purple curtains and a purple bedspread.
- She said that she thought she went on respite care at the defendant’s house 10 or so times. When it was suggested to her that it was four or five times, she said she did not know.
- She said that she cannot recall the number of different homes that she went to for respite care, but she did list some of her other respite carers names. Of relevance, she mentioned that she had gone to respite care at a house with a woman whose name was the same as the defendant’s wife. She said she could not remember the name of that woman’s husband. It was suggested to her that she may have mixed up who it was who touched her, and she rejected this. She said that the different woman with the same name lived in a completely different area, had completely different rooms and completely different dogs to what the defendant and his wife had. She confirmed that the defendant and his wife had fish at their house and rejected the suggestion that there was never any fish.
- It was suggested to her that the defendant never threw the puppy into the pool and the complainant rejected this, saying that it happened because she was very upset about it and thinks about it often.
- The complainant was asked how she knew she was six or seven when the defendant allegedly touched her. She explained that she told the police she was that old because her foster father had talked about how old she was when she went to respite at the defendant’s house. She said that when they were in the car, her foster father was telling her that the police or someone were coming to talk to her, and he told her how old she was at the time that they went to stay with the people they were being questioned about. She said that her foster father was telling her about the defendant and his wife and no one else.
- The complainant was further questioned about how it was that the defendant and his wife were suggested by her foster father and she said that he did not mention the defendant’s name, just that the department was coming to speak to her about something that might have happened when they were at respite care and ‘that is when it all clicked’ and she came out with it all to him. It was put to her that her foster father was the one who mentioned the names and the complainant said ‘after I had come out with it, that’s when he had said the names’. It was then suggested to her that it was her foster father who asked her if it was the defendant and his wife that she was talking about and she said, “not at all”. She went on to say that she immediately remembered the defendant’s name as her foster parents have a son by the same name.
- She rejected that she told her foster mother that she wanted to sleep in the same room as her sister on respite care as she gets scared. She rejected the suggestion that she always slept in the same room as her sister and said that they slept separately as they were not allowed to sleep together because they had their own rooms.
- It was put to her that there were not any curtains in the room she says she was touched in and she rejected that. She also rejected that there were not any drawers in the room and only built-in wardrobes. She rejected that the defendant’s wife had a rule that underwear must be worn at all times in the house.
- She said that she remembers the defendant’s son and his boyfriend would pop in sometimes when they were there on respite. She described the defendant’s son as being around 19-20 years of age. It was put to her that the defendant’s son was actually 30 in 2011 and had a big beard at which she was surprised as she thought he was very ‘clean’. She said that the defendant had a little beard, which she described to be like stubble and that she thinks that he might have had a brown beard when she first met him.
- She rejected the suggestion that the alleged offending did not occur. She rejected the suggestion that she was confused as to the identity of the person who touched her. She rejected that six years down the line, she may be mistaken about a couple of things. She agreed that at the time of the alleged offending she was suffering from bad dreams and described one about Michael Jackson. She rejected the suggestion that she was just having a bad dream rather than the defendant actually touching her.
- In cross-examination she was shown a photo of the defendant’s backyard and a photo of the side of the house. She did not recognise those photos and said that everything has changed, suggesting that the awning depicted on the outer wall near the pool on the photo was never there and that the pool did not have a fence.
- The complainant was re-examined about whether she was sure that it was the defendant who touched her. She said that she was 100 percent sure that it was the defendant and that what happened was real and not a dream.
The complainant’s foster father
- The complainant’s foster father gave evidence regarding the complainant and her siblings’ respite care schedule. He said that respite care at the defendant’s house commenced on 31 December 2010 and he knows that because it is the day before his wedding anniversary.
- He said that, organisationally, the children would go to after school care and then the respite carers would pick the children up from there. He said that he had a conversation with the defendant’s wife about sleeping arrangements in 2011. He said that the complainant told him on 26 January 2011 that she did not like sleeping by herself and wanted to sleep with her older sister, and this is what he communicated to the defendant’s wife. He said he was confident this conversation took place on 26 January 2011 as that is “family night”. In cross-examination he was asked what else he could remember about that day and he clearly could not remember anything, other than the fact that this conversation definitely took place.
- He said that on 12 June 2017 he had a conversation with the complainant during which he told her that the department had called and were coming to speak with her about a past carer and he did not know who the carer was. He said he was in the car with the complainant and two of her brothers. He said he also said to the complainant that ‘you might not remember who the carer was because it was a while ago’ and that the complainant said, “I don’t know who that would be”. He said that he then proceeded to go through a list of the names of carers and the complainant did not recognise the first few names but that as soon as he said the defendant’s name she made her statement.
- He said the complainant said “there’s something I have to tell you that I have never told anybody before about that man” and that she was very distraught when saying this. He said he told the complainant that she had to be really sure that it was the defendant who had touched her because it could destroy someone’s life. He said the complainant told him “the defendant touched me under my nightie, and I had no underpants on during the night”.
- In cross-examination it was put to him that the children went to the defendant’s for respite care on 10 January 2011 for a week whilst he went on holiday and he rejected that suggestion. This was the subject of further cross-examination and he maintained he was quite sure the children did not go to the defendant’s house on 10 January 2011. He said he could not recall if he went on a week long holiday in January 2011, but that the first time the children went to the defendant’s house for respite was on 31 December 2010 as it was his wedding anniversary on the 1st of January 2011.
- He agreed that he and his wife provided respite care for the defendant’s foster child in September 2016. He rejected the suggestion that the defendant came and picked the child up from his house, stating that they met at the Aldi Shopping Centre in Robina. He adamantly rejected the suggestion that he had a conversation with the defendant during that handover. He also adamantly rejected that the defendant told him that some allegations had been made against him by other children in care and that he responded “don’t worry, we all get them. They even alleged I had sex with my own daughter”.
- He rejected the suggestion that it was only the younger four children who went to respite care at the defendants. His evidence was that the oldest two sons definitely went to respite care with the other four siblings at the defendant’s house and he was not mistaken about that.
- With respect to the complainant’s disclosure, he rejected that he suspected the department was investigating the defendant because of the conversation that he had with the defendant in 2016. He rejected that he knew the defendant was the subject of complaints and that he suggested the defendant’s name to the complainant because of this. He rejected the suggestion that he helped the complainant remember she was six or seven when she was in respite care with the defendant.
- He said that there was definitely not another respite carer who looked after the complainant who had the same name as the defendant’s wife. It was suggested to him that he told the defendant’s wife before the children ever went there on respite that the girls need to sleep together in a room and he said that was totally incorrect.
- It was put to him that he told his wife that the complainant had told him about the ‘sexual abuse’ out of the blue in the car and he rejected this, saying that the complainant never used the words ‘sexually abused’ and that he never told his wife it was spontaneous.
The complainant’s foster mother
- The complainant’s foster mother gave general evidence about the complainant and her siblings’ schedule regarding respite care. She said that all of the six siblings went to respite care at the defendants, she rejected that they were split up.
- She said that after the department had spoken with the complainant in 2017, the complainant told her what had happened. She said that the complainant told her that she woke up to the defendant touching her privates and she asked him what he was doing, and he said that he was fixing her nightdress. She said that she apologised to the complainant for what had happened, and the complainant said, “the defendant told me not to say anything” and that “I didn’t think you cared because you never came and spoke to me about it”. She said she told the complainant that she does care and that she was not allowed to talk about it until someone had spoken to her, meaning someone from the department. She said the complainant was very upset when saying those things.
- She agreed that in 2016 she and her husband provided respite care for one of the defendant’s foster children. She said she recalled meeting up with the defendant and his wife when returning the child, and that the defendant spoke to her husband. She could not recall the defendant telling her husband that he had been accused of interfering with children in his care.
- In cross-examination it was suggested that she went on a holiday with her husband in January 2011 for a week and she said she could not recall. She disagreed with the suggestion that the complainant and her siblings only went to the defendant’s house for respite four times. She said she thought it was for a period of six to eight months.
- She agreed she told police that her husband said to her that “out of the blue in the car one day the complainant told him that the defendant sexually abused her”. She agreed that her husband told her that he would ring the department.
Senior Constable Thomas (Overall)
- Detective Senior Constable Thomas (“DSC Thomas”) gave evidence that she first became aware of this matter in September 2017 when she conducted a 93A interview with the complainant. Through this witness the crown tendered a document prepared by the department which showed the dates that the complainant had been booked to go to respite at the defendant’s house. The dates in January and February on that record are all admitted.
- In cross-examination she was asked why she did not speak with any of the complainant’s siblings, and she responded to the effect that the department was guiding the investigation and there was no information to suggest that any disclosures had been made by the siblings and the information from the complainant did not allege any of the siblings were present. It was suggested that notwithstanding this, the siblings could have been questioned about the sleeping arrangements at the defendant’s house and she said, “I could have”. She agreed that she did not attend the defendant’s house to obtain photographs of it or locate floor plans.
- She said that she carried out the second 93A interview with the complainant at the request of the Office of the Director of Public Prosecutions to confirm the location where she was touched. DSC Thomas prepared the QP9 for this matter and in the police statement of facts presented to the court it stated:
“The defendant has placed his hand underneath the victim child’s nightgown and has touched the victim child on the labia majora of the victim child’s vagina”.
- It was put to her that the complainant clarified, for a second time, in her 93A that she was touched on the upper part of her thigh. DSC Thomas surprisingly maintained that her understanding of what the complainant said was that she was touched immediately next to her vagina or on the outer part of her vagina.
- The defendant gave evidence that in 2010/2011 he was living in Southport. He said he was employed as a bus driver on a casual roster which meant that his shifts were always different and changing - he worked on weekends. He said he had a uniform which was a pale blue polo shirt with the company emblem on the pocket. He gave evidence that he has two children, and that his son was 30 in 2011 and had a full beard. He said he has never had a beard.
- He said that in January 2011, the complainant and three of her siblings were placed in respite care with him and his wife. He said that the complainant’s oldest two brothers never attended respite care at his home. He said that there were four bedrooms in the house, two rooms upstairs being a boys’ room and a girls’ room and the two other bedrooms on the middle floor. He said that one of the bedrooms on the middle floor was the master bedroom and the other was a spare bedroom that had a computer desk and computer in it. He said that this spare room also had a bed in it as it was set up for when his daughter and granddaughter would visit.
- He said that in the boys’ bedroom upstairs there were bunkbeds and in the girls’ bedroom there was a white single bed with a trundle bed. He said that the complainant and her sister slept in this room and that the boys would sleep in the bunkbed room, and sometimes one of the boys downstairs on a fold out sofa. He said that it was the arrangement from the start that the two girls would sleep together.
- He was shown a photo of his house (the same one that the complainant was shown), and he said that the house looked the same as it did in 2010/2011 except for some renovations to the front steps. He was shown the complainant’s diagram of the room she says she was touched in and he said that they never had curtains in the house as he had a dust allergy. Instead, they had venetian blinds. He also said that to be approved to be a foster carer, the department conducts safety checks on the house to look for things such as pool fences. He says that when they moved into the house in 2003 there was a pool fence.
- He said that his wife was the main carer of the children and that she had a rule that the children must wear underwear at all times. He said that in 2011 they had a pet staffy that was about 2 or 3 years old and that he never threw it in the pool. He said the dog had been thrown into the pool by another foster child when it was a puppy and had a fear of water, so he would take the dog into the pool to de-sensitise it. He said that they never had any fish.
- He said that in 2016 he had a conversation with the complainant’s foster parents when they were returning his foster child to them. He said that he had a conversation with the complainant’s foster father about caravans and then he mentioned that he had been the subject of allegations by children in his care and the foster father responded ‘don’t worry, we get them all the time. I even had an allegation against me that I had sex with my own daughter’. He said that his wife was there for the conversation.
- He denied the allegations made by the complainant.
- In cross-examination it was put to him that once he went to bed, he could not be sure where the children were sleeping, and he agreed. He was asked how he was sure that only the complainant and three of her siblings attended respite at his house and the defendant said that his wife had to pick them up from school and they only had a five-seater car so there was no way they could have transported all six siblings.
- He rejected the suggestion that he cared for the complainant and her siblings on 31 December 2010, and he said that he was caring for a different foster child at that time.
- He said that he did not really spend much time with the complainant and that he was never alone in a room with her because his foster care training says that you should not be alone in a room with children for your own safety and theirs.
The defendant’s wife
- The defendant’s wife gave evidence that in order to be a respite carer the house had to be inspected and approved and one feature of that was that they had to have a pool fence, which they always did. She said that the photos taken of their house in 2017 showing the backyard and side of the pool depict the house as it was in 2010/2011.
- She said that her husband had a uniform that was a blue polo shirt or a blue long sleeve button up shirt with the logo on the pocket. She said that her husband has never had a beard. She said that her son did have a beard in 2011. She said that they had a staffy in 2011 but rejected that the defendant had ever thrown it in the pool. She said that they never owned any fish.
- She said that she was the main carer of the foster children and children they provided respite care for and that the defendant did not do much with the kids, more so just helped her. She said that the children they cared for were never allowed to go into their bedroom and that she expected that they always wear underwear.
- She said that she cared for the complainant and three of her siblings in 2011 and that she has never seen or met the oldest two siblings. She said the first time that the complainant and her three siblings came to respite care at her home was for a week starting 10 January 2011. She said she kept a diary in 2010/2011 where she recorded the details of children she was looking after. It was tendered during her evidence. That diary confirmed that on 10 January 2011 she cared for the complainant and her three siblings for the first time. It also showed that she was caring for a different foster child on 31 December 2010.
- She said that she would pick the children up from school on a Friday when they were coming for respite care. She said that they had a Mazda and a five-seater van. She said that when she would take the complainant and her siblings on outings, the defendant never came because there was no room for him in the car.
- She said that the complainant was scared to sleep alone and so she always slept with her sister. She said that the house was set up with two bedrooms upstairs - one boys’ room with bunkbeds and one girls’ room with two single beds. She said that the spare bedroom stored anything special that they did not want the children they cared for to go through. There was a desk and shelves in there, but no bed, and it was always locked. She rejected that there was a queen size bed in the spare bedroom. She agreed that once she went to bed she could not be sure that the children were all in the same rooms as they had gone to bed in, but said that she did not sleep much and was very aware of what was going on.
- She recalled that she saw the complainant’s foster parents again in 2016 when they were picking up their foster child from respite. She said that they picked the child up from the complainant’s foster parents house and that the defendant and the complainant’s foster father were looking at a caravan and talking, but she was not there for the conversation.
The parties’ submissions
Submissions on behalf of the defendant
- The defendant made submissions as to how I should evaluate each witness by reference to certain hallmarks of their evidence. I will start with the submissions regarding the complainant.
- First, the defendant submitted that the complainant’s evidence regarding the sleeping arrangements at the defendant’s house was contradicted by both the defendant and his wife.
- Second, the defendant submitted that the complainant’s description of the appearance of the man who touched her in the bedroom was contradicted by the defendant and his wife’s evidence of the defendant’s work uniform.
- Thirdly, the defendant submitted that the complainant’s inconsistent and confused recollection of whether her oldest two brothers attended respite care at the defendant’s house was concerning. In that respect, it was submitted that in her first 93A she did not know if her older brothers were there, then in her 21AK she gave evidence that they were definitely there and gave evidence about where they slept. In conjunction with this submission about the complainant, the defendant pointed to the complainant’s foster parents’ assertions that the oldest two boys definitely attended respite at the defendant’s house and contrasted that with the mostly unchallenged diary entry of the defendant’s wife that only noted the complainant and three of her younger siblings as attending. It was also highlighted that the car used by the defendant’s wife to collect the children from school only had five seats, so there was no room for the older two siblings to have been there. It was submitted that this issue may seem peripheral, however any inconsistencies in the prosecution’s key witness demonstrates unreliability. It was submitted I would accept the defendant and his wife’s evidence.
- Fourthly, it was pointed out by the defendant that the complainant’s foster father’s assertion that she told him on 26 January 2011 that she did not feel safe sleeping alone is directly contradicted by the complainant’s evidence that she never told her foster parents that she did not feel safe at the defendant’s house.
- Fifthly, it was submitted that the complainant was adamant that the defendant’s wife had bought her and her sister pet fish and that another girl they cared for had killed them, whereas the defendant and his wife were adamant they never had fish. It was submitted that this raises the real possibility that the complainant, in some aspects of her evidence, is recalling details from other houses where she was placed for respite care.
- Sixthly, the defendant submitted that the complainant spoke of another lady who used to take care of her who had the same name as the defendant’s wife. Considering the complainant’s confusion about another respite carer who had the same name as the defendant’s wife, the defendant submitted the complainant had some confusion in her mind as to whose house she was referring to.
- Overall, it was submitted that these combined inconsistencies in her evidence would raise considerable doubt as to whether her evidence can be accepted beyond reasonable doubt. The defendant submitted the complainant’s demeanour was casual when answering serious questions and that she was not willing to make any concessions or to accept that she might be wrong, mistaken or confused about events that occurred some ten years in the past.
- With respect to the other witnesses, the defendant submitted as follows:
- (1)complainant’s foster father: that he was argumentative during cross-examination and adamant that his recollection of certain events some ten years ago was accurate. He was not willing to make any concessions on several points of evidence that were substantially contradicted by the defence case and even by the department’s records tendered by the crown. It was emphasised that his account of the complainant’s preliminary complaint was at odds with the complainant’s.
- (2)complainant’s foster mother: that she was not a confident witness and had some difficulty recalling details of the time but made reasonable concessions and appeared to be trying to assist the court. It was submitted that her account of how the complainant came about was significantly different to that of her husband. It was also submitted that her account of what the complainant told her is different.
- (3)DSC Thomas (Overall): that the failings in the investigation, in conjunction with the delay in the complaint being made, occasioned significant forensic disadvantage to the defence. I accept this submission and have given myself the appropriate direction.
- (4)the defendant: that the court would have no difficulty in accepting him as an honest, reasonable, and reliable witness, who was frank about what he could and could not remember. It was submitted that he was clear on the important matters and that there were some minor differences in his recollection of matters and his wife’s, which supports a finding that they were both doing their best to give their own independent evidence. It was submitted that, of course, the defendant does not have to convince the court of his innocence, but that his evidence was compelling, and the court should give it considerable weight.
- (5)the defendant’s wife: that she was an impressive witness who, while able to recall many details, was willing to concede matters she was not sure of. It was submitted that her evidence was not substantially challenged in cross examination and no basis was advanced upon which the court could act to reject her evidence.
- Overall, it was submitted that the evidence led at trial was not capable of proving the charge beyond reasonable doubt and the defendant should be found not guilty.
Submissions on behalf of the crown
- The crown also made submissions as to how I should evaluate the evidence of each of the witnesses.
- With respect to the complainant, the crown submitted that the way she gave her evidence and how she expressed what had happened to her had the hallmarks of actual experience - a ring of truth. It was submitted that it should be taken into account that providing statements about sexual abuse to unknown people at a police station as a 14 or 15yr old and later giving evidence in court are difficult tasks. It was submitted that the fact that the complaint came to light five and a half years after the offending was explained by the complainant and that in any event there is no normal way in which those who have been sexually abused should behave and that victims can respond differently.
- It was submitted that the complainant is certain about the core facts regarding the offending and that some inconsistencies and failings of memory should be expected. It was submitted that I would find the complainant was measured and did not overstate or embellish the evidence. It was submitted her consistency in relation to the core facts on both occasions with the police and in the pre-record means that I would find her to be an honest and reliable witness. It was submitted that any inconsistencies in her evidence relate to peripheral details and to suggest that a person would remember every little detail about an event that occurred a long time ago is not how the human mind works. It was submitted that the complainant made concessions on things she did not remember, which bolsters her honesty and reliability.
- It was submitted that her demeanour supports that of an honest and reliable witness and her body language was supportive of someone who was recounting something that actually happened to her.
- It was submitted by the crown that the evidence of the complainant is supported by the preliminary complaint evidence of her foster parents. With respect to her foster parents accounts it was submitted that:
- (1)foster father: It was a little unclear as to whether the names of prior carers were listed by him before or after she identified the defendant. However, what is clear is that the complainant knew that the defendant was the perpetrator; she immediately disclosed what happened during this discussion with him; and what she said to him and the details she gave about what happened are consistent with what she told police and the court. Her evidence in relation to the identity of the defendant is clear.
- (2)foster mother: the disclosure to her is consistent with the core facts of what the complainant has said happened, which is that she was touched indecently by the defendant when wearing a nightdress. Further, this is not a situation where the complainant has disclosed more serious offending in comparison to what she initially said to her foster father.
- In terms of the defendant’s evidence, the crown submitted that the defendant clearly had opportunity to commit the offence. It was also submitted that his description of how the spare room was set up was broadly consistent with the complainant’s evidence on how the room was. It was submitted that there were inconsistencies between the evidence of the defendant and his wife on how the spare room was set up. It was submitted that given this inconsistency, the court would not be confident of the evidence of the defendant and his wife about the sleeping arrangements and that the court might find that the defendant’s wife was in a difficult position giving evidence.
- It was submitted that the court would not find the defendant’s evidence convincing, including the denial of having committed the offence and it would not be accepted. The crown submitted that this was opportunistic offending which was brief in nature and that people do all sorts of things in risky situations, despite the possible consequences.
- Overall, it was submitted that I would accept the complainant as an honest and reliable witness and that she was clear, consistent, and reasonable and gave no reason not to accept her as anything but.
- The crown submitted that the court would accept the complainant’s evidence and be satisfied that the defendant committed the offence as she has described and find him guilty of the offence.
Relevant principles/ directions
- In R v Pentland  QSC 231 Martin J conveniently collected a number of general principles applicable in any criminal prosecution which I have applied and reproduce as follows:
“ The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant.
 In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.
 The issues that exist must be resolved by taking account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
 The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.
 It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’ evidence. I may accept parts of it if I think it is worthy of acceptance.
 In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.
 I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. ...”
- For the crown to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I have set out the elements in paragraph  above.
- It is for me to decide whether I am satisfied beyond reasonable doubt that the crown has proved the elements of the offence. If I am left with a reasonable doubt about guilt, I must find the defendant not guilty. If I am not left with any such doubt, I must find the defendant guilty.
- 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 the balance of probabilities.
- In a criminal trial, the standard of satisfaction is much higher; the crown must prove the guilt of the defendant beyond reasonable doubt.
Principles specifically relevant
Section 93A statements
- The complainant is a child. Her evidence included the statements given to police and admitted pursuant to s 93A of the Evidence Act 1977 (Qld) (“Evidence Act”). The recordings were played during the trial. I am conscious and take into account that the presenting of children’s evidence in this way comprises the routine practice of the Court. This measure is adopted in every case involving children such as the complainant.
- The recordings were tendered, and I have also been provided with transcripts which were marked for identification. I have had access to these recordings and the transcripts. I keep in mind that the transcripts are someone else’s impression of what was said during the recorded interviews. They are not evidence and are merely an aid. It is what I heard on the recordings that matters, not what is in the transcripts. Having said that, there was no suggestion as to any material inaccuracies in the transcripts. These comments apply equally to other relevant transcripts other than as to discrepancies in respect of the 21AK transcript of which there were many.
- The complainant gave evidence which was pre-recorded under Division 4A of the Evidence Act. I take into account the usual directions applying to the child that:
- at the time the child gave evidence, she was in a room which was separate from the courtroom;
- the evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom;
- at the time the child gave evidence there was a support person sitting in the room with her, and no other person;
- whilst the child gave evidence, all non-essential persons were excluded from the courtroom;
- at the time, the defendant was present in the courtroom but was so positioned that the child could not see the defendant on the monitor, or at all;
- the child’s evidence was recorded as it was given and that is the recording that was played during this trial;
- the courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the child was played; and
- all of these measures, used for the taking and showing of the children’s evidence, are the routine practices of the court for taking and showing evidence of children in a case such as this and I must not draw any inference as to the defendant’s guilt because these measures were used. The probative value of the evidence is not increased or decreased because these measures were used, and accordingly, the evidence is not to be given any greater or lesser weight because these routine measures were used.
- I was not told of editing of any of the recordings, but if there were any, I would not draw any inference adverse to the defendant as a result of this.
Defendant giving evidence
- In this case the defendant gave evidence. He did not have to give evidence or call other people to give evidence on his behalf, or otherwise produce evidence. That he did so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the prosecution. The prosecution has the burden of proving each of the elements of the offences 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.
- This is one of the category of cases sometimes described as “word against word”. In a criminal trial it is not a question of making a choice between the complainant’s evidence and that of the defendant. The proper approach is to understand that the prosecution case depends upon my accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; thus I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
- Where, as here, there is defence evidence, there is usually one of three possible results:
- I may think the defence evidence 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
- I may think that, although the defence evidence 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
- I may think that the defence evidence 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 evidence unconvincing, I must 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 proven each of the elements of the offence in question.
Preliminary complaint evidence
- In this case there is evidence of the complainant’s preliminary complaint to her foster parents. I have addressed that evidence above. I bear firmly in mind that this evidence may only be used to assess the credibility of the complainant’s account in the sense that consistency between her account of events and that which she told each of the preliminary complaint witnesses may enhance the likelihood that her account is true. Those out of court statements are not however to be used as evidence proving what occurred.
- Similarly, any inconsistency between the preliminary complaints I find and the complainant’s evidence as to what occurred may cause me to have a doubt about her credibility or reliability. I must consider whether any such inconsistencies are of such a nature as to affect her credibility or reliability or whether they are matters that are explicable in all the circumstances. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me to determine.
Delay in prosecution and significant forensic disadvantage
- There were serious failings in the police investigation which I have referred to herein and there was also delay in the complaint being made. I am satisfied that the defendant has suffered a significant forensic disadvantage because of the effects of delay given these failures.
- I take into account the difficulties for the defendant in defending himself by testing the prosecution evidence or bringing forward evidence in his own case. These difficulties include the passage of time creating uncertainty as to when the alleged event is said to have occurred such that the defendant was deprived of the possibility of demonstrating a lack of opportunity or alibi evidence and making it impossible to establish exactly what was in each bedroom in the house. The absence of investigation including speaking to the other children about sleeping arrangements or what was discussed in the car in June 2017 has amplified the consequences of the delay.
- Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant’s memory for detail 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. The complainant’s inability to recall precise details of the circumstances surrounding the incidents makes it difficult for the defendant to throw doubt on her evidence by pointing to circumstances which may contradict her. Had the defendant learned of the allegations 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 the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him. I have taken these matters into account.
- There were certain features of her evidence as to the identity of the person who touched her that are concerning. Firstly, when referring to a discussion about ‘it’ she said that her foster father told her that ‘it’ happened when she was six or seven. There is also some evidence that her foster father may have suggested the defendant to her.
- Secondly, during her first 93A interview she described in some significant detail the appearance of the bed she had been sleeping in and when getting to describing who was present at the house, she got confused as to whether she was speaking about the defendant’s house or another house at which the foster carer had the same name as the defendant’s wife. To me, that raises concern as to the identity of the house in which it occurred and thus, perhaps, whether she can really remember the defendant’s identity.
- Thirdly, when asked how she knew it was the defendant, she said that that was because the lamp was on and she remembered his face from the first time she saw him, and somewhat concerningly, also because he was the only other full-grown male in the house. She also described the person who touched her as a construction worker who was kind of dirty and who was wearing a shirt with orange bands around the arms. It was unchallenged evidence that the defendant was a bus driver, and he wore a pale blue polo shirt or a long sleeved pale blue shirt each with an emblem on the pocket.
- Fourthly, the complainant was shown images of the defendant’s house and it was mainly unchallenged that the house looked the same in 2010/2011 as when the photos were taken. The complainant could not recognise the house and insisted that the awning adjacent the pool was never there and that they never had a pool fence. Given that the department had to complete safety checks on the house prior to being approved, which included that there was a pool fence, and that as a matter of common knowledge such pool fences have been required for many years, I accept the defendant and his wife that there was always a pool fence around the pool.
- Fifthly, the complainant rejected the proposition that she was mistaken about these memories and that she had mixed up things which happened on different occasions at different places. For example, she confirmed that she was sure about the evidence she had given as to the existence of a fishbowl, a staffy puppy and that the room had pink curtains. I accept the defendant and his wife’s evidence that they never owned fish, that the staffy was not a puppy and that the rooms had blinds.
- Overall, I found that the complainant was honest and trying her best to recount the events as they occurred and that she often was casting her mind back in a genuine attempt to tell the truth. However, I am concerned with her reliability as a witness given the features I have identified above regarding her ability to identify the defendant and his house accurately. I am also concerned about her ability to accurately recall given the passage of time between the alleged offending in 2010 or 2011, the subsequent disclosure and 93A statements in 2017 and 2018 and the 21AK hearing occurring in 2021.
The complainant’s foster father
- I found the complainant’s foster father to be quite rigid in his evidence and to be less willing than I might have hoped to make concessions including claiming to recall a conversation occurring on 26 January 2011 despite clearly having no memory of what otherwise occurred on that occasion. I also thought that his evidence as to the alleged conversation with the defendant in September 2016 lacked spontaneity. When it was suggested to him that he and the defendant had a conversation in which the defendant told him that some allegations had been made against him by other children in foster care he did not appear to express any surprise about that suggestion but dogmatically rejected it. When it was put to him that part of that conversation included him saying “don’t worry, we all get them” and “they even alleged I had sex with my own daughter” he did not respond in the spontaneous way I would expect one to respond having heard that for the first time. There did not appear to be any indication of surprise.
- He was adamant about, but plainly wrong as to:
- (1)the children going to the defendant’s house on 31 December 2010;
- (2)the children not staying with the defendant for a week in January 2011;
- (3)all six children going to respite at defendant’s house;
- (4)not having a conversation at all with defendant when dropping the defendant’s foster child off. The defendant, the defendant’s wife and the complainant’s foster mother all say that he and the defendant had a conversation;
- (5)there not being a woman who shares the same name as the defendant’s wife who provided respite for kids. Of course, the complainant could be mistaken about this too, but that would reflect poorly on her reliability given the context in which this matter was raised.
- I also found that there were inconsistencies between his account of the complainant’s complainant to him and what the complainant said she disclosed to him. The complainant said that her foster father suggested that she was six or seven years of age, whereas the complainant’s foster father strongly rejected this. The complainant said that as soon as he told her that the department were coming to speak with her about a respite carer “it all clicked” and she disclosed what the defendant did to her. Whereas the complainant’s foster father says that once he told the complainant about the department coming, she said to him “I don’t know who that would be”. Such inconsistencies between the two accounts causes me doubt about the complainant’s reliability.
- While overall I consider that the complainant’s foster father was doing his best in his evidence ,I am not satisfied that it is reliable.
The complainant’s foster mother
- The complainant’s foster mother’s account of what she was told by the complainant by way of preliminary complaint differed significantly from the complainant’s account of what happened and also to what the complainant’s foster father said he was told.
- Concerningly, she gave evidence that her husband told her that the complainant came out with the disclosure “out of the blue” rather than in the context of the department wishing to speak to her. Instead, she agreed she told police that her husband had told her he would ring the department, presumably after the unexpected disclosure. This chronology of disclosure is completely different to what the complainant and her foster father described. This increases my doubt as to how the complaint came to be made.
- The complainant’s foster mother’s recollection of events was obviously quite limited. It was a recurrent theme of her evidence that she could recall little detail. She gave evidence that her husband was significantly more involved than her.
DSC Thomas (Overall)
- I was concerned that the police investigation was not as good as it should have been. DSC Thomas did not visit the defendant’s house or obtain photographs or plans of it. She did not speak to the complainant’s siblings, for the reasons I have already outlined, which, in my view, clearly overlook the fact that the complainant told her in her first s 93A that two of her brothers were in the car when she made the disclosure to her foster father.
- Despite the purpose of, and discussions during, the second s 93A interview, DSC Thomas maintained that the complainant indicated including by way of a diagram that she was touched on the outer part of her vagina. That was, with respect, an odd response given that the complainant clearly indicated that she was touched on the upper thigh a little more than two inches from her vagina.
- I found that the police investigation, or lack thereof, meant that much of the evidence that could have been presented was not.
- The defendant gave evidence that after selling the house at Southport he and his wife moved because he considered it much ‘safer’ to have a house that had an extra bathroom given they were caring for two teenage female children. The defendant was not cross-examined on that point. Nor was his wife cross-examined on the evidence she gave that when the defendant was assisting with the foster children whilst she was working, they only had boys. I found the use of the expression ‘safer’ when referring to female foster children strange, but it is hard to say anything more about it given the meaning was not explored.
- Although the complainant had given evidence that there was no pool fence, the defendant gave what seemed to me to be credible and reasonably obvious evidence that the department checked the house for smoke alarms and a pool fence and so on prior to the defendant and his wife providing respite care.
- As to the incident described by the complainant with the defendant and the staffy puppy, he said it had apparently been traumatised by a child when thrown into a pool somewhere else, as in not the pool depicted in the photographs. He was not cross-examined as to where that pool might have been, having regard to the period of time they had lived in the house by 2011.
- When it was suggested to him that there were six children at respite care he said there were only four. He gave evidence that the car they had was only capable of carrying four passengers. That evidence, as to only having a five-seater car, was not challenged and nor was it suggested that two cars were used to collect the six children.
- Overall, I found the defendant’s evidence credible and reliable.
The defendant’s wife
- The defendant’s wife produced a diary which recorded that the complainant and three of her siblings first came to stay for a week on 10 January 2011 and recorded that a different foster child had been there on respite care from Christmas Day 2010 to 9 January 2011. Her diary plainly records that it was only the younger four siblings who they provided respite care for. This contradicts the evidence of both the complainant and her foster parents who were all adamant that when they were on respite at the defendant’s house, all six children went there. I am inclined to accept the defendant’s wife’s evidence, especially where the contents of the diary were not challenged.
- The defendant’s wife also gave evidence that from the beginning she had been told that the complainant was scared and had to sleep with her sister. Given that it was unchallenged that the house had a boys’ room and a girls’ room, it seems logical to me and I accept, that the defendant and his wife never told the complainant that she was not allowed to sleep with her sister as described by the complainant.
- The defendant’s wife impressed me as a witness diligently seeking to do her best to answer the questions she was asked.
- My conclusion is that the evidence as a whole (including the defendant’s sworn denials) does not prove the case to the required standard. Accordingly, the verdict is not guilty.
The complainant drew a diagram of the room which became exhibit 5.
This became exhibit 4.
This seems inconsistent with her foster mother not knowing about the allegations prior to the department speaking to the complainant. But it is consistent with her foster mother’s version of what the complainant’s foster father said to her.
This became exhibit 10.
R v Pentland  QSC 231 at -.
- Published Case Name:
R v JCN
- Shortened Case Name:
R v JCN
 QDC 224
Jackson QC DCJ
15 Sep 2021