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R v SPRS[2021] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

R v SPRS [2021] QDC 301

PARTIES:

THE QUEEN

v

SPRS

FILE NO:

530/21

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

3 December 2021

DELIVERED AT:

Ipswich

HEARING DATE:

22 November 2021; 23 November 2021

JUDGE:

Lynch QC DCJ

FINDING:

  1. SPRS is formally discharged in respect of all counts on indictment number 530 of 2021

CATCHWORDS:

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where defendant is charged with two counts of rape and one count of common assault – where a no jury order was made – where the trial proceeded before a judge alone – whether the Crown has proved beyond reasonable doubt that the defendant raped and/or unlawfully assaulted the complainant

LEGISLATION:

Criminal Code 1899 (Qld) ss 4, 210(1), 245, 268, 269, 335, 349, 578(1), 583(1), 615B, 615C

COUNSEL:

Mr D Meredith for the prosecution

Mr C Minnery for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution

Ryan Murdoch O'Regan Lawyers for the defendant

Proceedings

  1. [1]
    SPRS is charged on indictment before the District Court at Ipswich with the following offences:

Count 1:That on a date unknown between the first day of April 2007 and the thirty-first day of September 2010 at Ipswich in the State of Queensland, SPRS raped CERS.

Count 2:That on a date unknown between the first day of April 2007 and the thirty-first day of September 2010 at Ipswich in the State of Queensland, SPRS raped CERS.

Count 3:That on a date unknown between the first day of August 2017 and the thirty-first day of August 2018 at Chinchilla in the State of Queensland, SPRS unlawfully assaulted CERS.

  1. [2]
    On 15 October 2021, a no jury order was made in respect of these charges. When arraigned before me on 22 November 2021, the defendant entered pleas of not guilty to each count. As a consequence, the trial of those counts has proceeded before me, sitting without a jury.
  1. [3]
    Pursuant to s 615B of the Code, in conducting the trial I am required to apply, so far as is practicable, the same principles of law and procedure as would apply in a trial before a jury, including my taking account of any warning or instruction that would be required to be given to a jury. Pursuant to s 615C of the Code, I am required to identify in my judgement the principles of law I have applied, and the findings of fact upon which I have relied, in coming to my decision.
  1. [4]
    For the reasons that follow, I have reached the conclusion that the defendant should be found not guilty of each count.

Evidence

  1. [5]
    In all, the evidence of 5 prosecution witnesses were received. The defendant did not give or call evidence in his defence. In addition, the following were admitted as exhibits:
  1. Recordings of interviews between police and CERS on 2/3/2019
  2. Transcript of exhibit 1
  3. Recording of evidence of CERS taken on 23/4/2021
  4. Transcript of exhibit 3[1]
  5. Admissions
  6. Prosecution’s written submissions
  7. Defendant’s written submissions
  1. [6]
    The oral evidence included the following.

CERS

  1. [7]
    CERS is the complainant. He was interviewed by a police officer in an interview room at a police station on 2/3/2019. The first portion of the recording was audio recorded only, and the second portion recorded on video. The recordings were played in evidence at the trial. 
  1. [8]
    CERS gave his date of birth as being 16/1/2006 and his age then as 13.[2] CERS was asked what he had come to talk about, and he replied “my dad … he used to beat me … and um he put a banana up my bum when I was little. And then he put a finger up my bum. And then we, he took me for a shower and that so I can remember.”[3]
  1. [9]
    CERS was asked what he recalled about his father beating him and he said “He would put me up against the wall and choke me. And then he would punch me, like everywhere, in the arm and all that.”[4] He was asked about the worst time and he said they “were all pretty bad”. He said “I used to always urinate in my pants and all that, from getting scared.”[5] When asked when the last occasion was, he said “Mum said it was October, wait, no November something, I forgot what she said when the last time was.”[6] He said on the last occasion, the defendant choked him up against the wall and was about to punch him, but his mother and brother TYHZ stopped him.  He said this incident occurred in their new house in Chinchilla at Zeller Street.[7] He said this happened when he wouldn’t get out of bed for school and “then he would pull me outta the bed, and then take me to the kitchen, and then he would start punching me, and then he would choke me up against the wall.”[8] He went on to describe the defendant using one hand and his being lifted, so his feet were off the ground, and being punched 3 times in the gut, then 6 times in the arm.[9] He said he got winded “most of the times” but got bruises to his arm. He said he thought his sister and other family saw the bruises.[10]
  1. [10]
    A second interview was commenced in which the police officer asked about a further assault that CERS raised after the first interview ended. CERS agreed he’d said this incident might have been a week or so before the beating he described earlier.[11] Asked about this incident, CERS said “We were in the lounge room … we were starting to wrestle, and then he had his glasses on, and then I accidentally hit him a little bit, like hit him, pushed him a little bit, and then he, they fell off and then he just got really angry. And then he just beat me.”[12] Asked to describe the beating, he said “He would chuck me against the wall, and then he would kick me while I’m on the floor, in the gut like about three times. And then I’d get up, and then he would punch me, and then that’s all I can remember.”[13] He said the punches were to the arm[14] and he was “chucked against” the kitchen wall[15] by the defendant grabbing his shirt.[16] He also said he “peed” his pants on this occasion.[17]
  1. [11]
    CERS was asked about the defendant putting a banana up his bum and said “I was lying in bed and then he would just come up, and then he put it up my bum.”[18] He said he could not remember where they were living at that time because he was “really young … Probably like around five or four”.[19] Later he said it may have been at Clay Street and he recalled pink bunk beds.[20] He was asked “So how did he get the banana up your bum?” and replied “I don’t really know, he just put it up there.”[21] He said he was wearing boxer shorts and a shirt, and the defendant pulled his pants down, “probably to my knees”.[22] When asked whether any other occasions occurred with a banana, he said he could only remember once and said “I can’t remember anything else he did.”[23] Asked how he knew it was a banana, CERS said he saw it when the defendant was walking out.[24] He said this happened in the morning and the defendant did not say anything but then took him for a shower.[25] He said he thought he was home alone with the defendant.[26] CERS was asked to describe how his bottom felt at the time and he said he could not explain it.[27] When specifically asked whether he felt pain in his bottom from the banana, he said “I don’t know.”[28]
  1. [12]
    CERS was also asked to describe what he recalled about the defendant putting a finger up his bum.  He said “I don’t remember like much of it, but I just remember him putting it up my bum, ‘cause I saw the banana on the side of him, and I was lying on the left side of the bed, closer to the wall. And ‘cause, I don’t know how to explain, sorry.”[29] When asked whether this was the same bed he’d described earlier regarding the banana, he said “Yeah. It was on the same morning, I’m pretty sure.”[30] When asked how he knew it was a finger that was inserted, CERS said it “felt differently.”[31] Asked which event occurred first, CERS said “Probably the f-, banana. Oh no, it was the finger, ‘cause I remember him walking out.”[32] He was asked what the defendant did with his finger when he put it in and he replied “I don’t know.”[33]
  1. [13]
    CERS was asked when he’d first told anyone about these things and said “When it first came to mind, probably like two months, oh, three months ago.”[34] The first person he told was Mr FHMR.[35] Asked why he told FHMR, CERS said “I just wanted to get it out.”[36] Asked whether he’d seen the defendant do anything to anyone else he said he had not.[37] Asked if anyone had told him of the defendant doing anything to them he said “No, everyone kept it a secret.” Asked why he’d kept it a secret, CERS said “Ah, well the banana bit I only just remember. And the beating, everyone was there when it happened.”[38]
  1. [14]
    The evidence of CERS was pre-recorded on 23/4/2021. The evidence was given from a remote room connected to the court room via audio visual link and with a support person present in the remote room. In evidence in chief CERS acknowledged his police interviews, said he’d watched them the day before, and acknowledged what he’d said in those interviews was truthful.[39]
  1. [15]
    CERS acknowledged he’d first spoken to police in 2017, when he was about 10 years old, regarding his sister PIKJ’s complaint.[40] CERS agreed he did not, in that first interview, tell police anything about the defendant hurting him or inserting a finger or banana into his bottom. He said that was because he was not asked about himself but believed the interview was about the event involving PIKJ.[41] CERS also acknowledged in his 2019 interview he said the banana incident only came back to him as a memory a few months before. He said that was because “Just always the word around the house and talking about it, so things would come back to my mind.” CERS was unable to give any detail of what might have been discussed within the family and denied speaking to TYHZ about what happened to him.[42]
  1. [16]
    CERS was asked about the occasion when he said the defendant pushed him against the wall and was choking him. He said he believed that happened at the Hughes Avenue house. He denied his memory of when this happened was based upon what his mother told him.[43] CERS said this incident started with he and the defendant wrestling, that he knocked the defendant’s glasses off, the defendant got angry, and he was “thrown into the kitchen”.[44] He said his mother and TYHZ were present, but they did not pull the defendant off him; he said that was another occasion.[45] CERS described the defendant punched close to his face but without contacting his face, punched his arm 2 or 3 times causing bruising, and kicked him in the gut winding him, as part of this incident.[46] It was suggested to CERS there was an occasion he and the defendant wrestled in the media room and he knocked the defendant’s glasses off. It was suggested CERS then punched the defendant in the face and in response the defendant pushed him against the wall but did not punch him or kick him or choke him; CERS denied these suggestions. CERS also denied the suggestions the defendant had never kicked him in the gut and had never assaulted him to the point of his wetting his pants.[47]
  1. [17]
    CERS was asked about the occasion he said the defendant inserted the banana into his bottom. He confirmed he believed he was aged 4 or 5. He said this occurred in the daytime and it was hot and sunny, that he was on the bottom bunk bed facing the wall and he did not see the defendant enter the room.[48] He said the defendant first put his finger into his bottom, he didn’t know how long for, and he couldn’t remember if it hurt. He knew it was a finger by “instincts”. He was unable to say how far into his bottom the finger went and when asked if he could say whether it had just been on the outside of his bottom, he said “No. No. I don’t know really.”[49] When asked how he knew a banana was inserted he said “I couldn’t answer that one either.” He acknowledged he assumed it was a banana because he later saw the defendant with a banana in his hand.[50] Asked how the banana felt different, he said “Not a – like, I don’t reckon it would have like entered – felt like thicker I guess.” Asked how far the banana entered his bottom, he said “I don’t think it would of … I just think it wouldn’t have.” Asked whether the banana was resting outside his bottom he said “It’s not really like a memory now, its just like what I think.” Asked whether the banana just touched his bottom, he said “I think it would, maybe like touched it. Yeah.” [51]
  1. [18]
    CERS agreed the first person he told of the banana incident was his stepdad FHMR. He said he told him because FHMR was being really honest and open, and he wanted to get it off his chest.[52] CERS then agreed that in fact the complaint was made to FHMR when FHMR confronted him about IPQT’s complaint, and he believed he was in trouble. CERS agreed FHMR told him things happened to FHMR as a child, and it was not CERS’s fault what he did to IPQT. CERS agreed FHMR asked him whether his father touched him and initially he replied no, but then replied yes.[53] CERS denied the suggestion that he had made up the allegations of insertion of a finger and banana in his bottom.[54]

MJNS

  1. [19]
    Ms MJNS is the mother of the complainant. She was married to the defendant and that relationship produced 4 children. They are: PIKJ born 3/3/2001; ONPO born 29/1/2004; CERS born 16/1/2006; and IPQT born 25/8/2013. Prior to her relationship with the defendant, Ms MJNS had a child TYHZ, born 4/12/1997, to FHMR.[55] Ms MJNS said that a year after her relationship with the defendant ended, Mr FHMR returned to live with her and the children.[56]
  1. [20]
    Ms MJNS said she and the defendant lived at addresses in Ipswich and then Chinchilla. She said her daughter PIKJ made a complaint about the defendant when they were living at Zeller Street in Chinchilla and the defendant was then arrested and did not return to live with the family. She said that about 6 months after this she moved back to Ipswich with the children.[57]
  1. [21]
    Ms MJNS recalled an event that occurred when they were living at Hughes Avenue in Chinchilla. She said her son TYHZ did not live with the family in Chinchilla at that time but was visiting them.  She said CERS and the defendant were wrestling on a mattress on the floor of the media room; she witnessed this from the kitchen. She said CERS accidentally hit the defendant’s glasses off his face and they stopped wrestling.[58] She said CERS then went to the girls bedroom, she was present in that room and the defendant “came running in, grabbed CERS, choked him, got - held him by the neck. Put him up against the wall.”[59] Ms MJNS confirmed this occurred in the girls room and a few minutes after the wrestling stopped.[60] Ms MJNS said the children were yelling for the defendant to stop and during the incident the defendant winded CERS by hitting him in the belly. Initially, Ms MJNS said the defendant punching CERS in the belly occurred in the girls room, but then acknowledged that in her police statement, dated 5/3/2019, she described that happening in the lounge room. Ms MJNS said the account in her police statement was correct.[61] Ms MJNS said this occurred at Hughes Avenue on the day before they moved to the house at Zeller Street.[62] She said TYHZ was present for this incident and assisted in attempting to stop the defendant.[63] Ms MJNS acknowledged she had spoken to CERS about this incident before he spoke to police, regarding when it occurred and what she had seen happen.[64] Ms MJNS said she could not say how many times CERS was punched, whether once or 6 times, but confirmed she only saw him punched to the stomach, and not to the arm.[65]
  1. [22]
    Ms MJNS said she was aware of complaints by PIKJ, TYHZ and ONPO about the defendant. She said she had not discussed the details of those complaints with CERS and had not asked CERS about anything that occurred to him.[66] She acknowledged she encouraged CERS to take his complaint to police once she was told of it by FHMR, but did not encourage him to complain before then.[67] Ms MJNS said that after the complaints by PIKJ and TYHZ, the police also interviewed ONPO and CERS.[68]

PIKJ

  1. [23]
    PIKJ is the daughter of the defendant and MJNS and the brother of CERS. She said she made a complaint about the defendant when the family was living at Zeller Street in Chinchilla, but denied CERS was aware of her complaint.[69]
  1. [24]
    Ms PIKJ said she recalled an incident involving CERS that occurred when the family were living at Hughes Avenue. She said the defendant was sitting on a mattress on the floor in the media room and CERS tried to move past him in order to sit on the lounge. She said CERS accidentally knocked the defendant’s glasses. She said words, which she did not recall, were exchanged, but the defendant pinned CERS against the wall of the media room by the throat with his legs off the ground. She recalled her mother yelling for the defendant to stop and she took the youngest child out of the room. She recalled those present included her mother and brother IPQT.[70] Ms PIKJ confirmed she witnessed these events from the kitchen, near to her mother, and that the defendant’s grabbing CERS by the throat occurred immediately after his glasses were knocked.[71] She also confirmed CERS was pinned against the wall of the media room, not some other room in the house.[72] Ms PIKJ denied discussing this event with CERS at any time, and although initially denying discussing it with her mother, ultimately acknowledged discussing it with the other adults in the house.[73]

TYHZ

  1. [25]
    TYHZ is the son of MJNS and FHMR. He grew up with the defendant. He said he lived with the family at different houses in Chinchilla but moved to Ipswich when the rest of the family were living at Hughes Avenue in Chinchilla.[74]
  1. [26]
    TYHZ said he visited the family in Chinchilla from time to time and on one such occasion he saw an incident involving CERS. He said he was in the bathroom when he heard a commotion and came out to see CERS run out and the defendant get hold of him. He said the defendant said “If you ever do that again” and he held CERS against the wall with his forearm against CERS’s throat. He said this was in the area just out of the media room. He said his mother was in the kitchen and trying to stop them. He said this lasted for about 8 seconds and the defendant went back to the media room and CERS went to his room.[75] TYHZ accepted the account in his police statement dated 27/6/2019, was given when his memory of events was better. He accepted that included a description that he saw the defendant “bashing” CERS in the lounge room before he held him against the wall. He said this involved the defendant hitting CERS in the back with his hand.[76] TYHZ said the defendant later told him his glasses had been knocked off while they were wrestling.[77]
  1. [27]
    TYHZ also said there was an occasion the defendant told him he had done something to CERS, but he could not recall when it was the defendant told him this. He said he did not see the defendant again after he was arrested following PIKJ’s complaint.  He said the defendant “just told me there’s was some type of scene between him and CERS and - involving a banana.” Asked whether the defendant told him what he did with the banana he replied “Yeah. He - he stuck it up my little brother’s behind.” TYHZ said the defendant did not go into any further detail and he did not ask him any questions about this.[78]
  1. [28]
    TYHZ said he could not give the exact words used in the conversation regarding the banana. He said the conversation occurred in the media room at the Hughes Avenue house during a visit by him. He could not say which year but suggested it might have been in 2015. He said the only persons present were himself and the defendant. He said the statement was made during a conversation about something else, but he could not recall what the conversation was about. He could not recall any detail beyond that quoted above. TYHZ denied the suggestion that the defendant did not say to him anything regarding putting a banana up CERS’s bottom.[79]

FHMR

  1. [29]
    FHMR is the father of TYHZ and the current partner of MJNS. He said he was in a relationship with MJNS before he spent 10 years in prison for an offence of murder. He rekindled that relationship after his release and after the defendant was arrested.[80] Mr FHMR said he did not discuss the details of the defendant’s arrest with CERS prior to CERS’s complaint to him concerning the defendant.[81]
  1. [30]
    Mr FHMR said he was at a barbecue when MJNS’s son IPQT complained of being sexually touched by CERS doing something to IPQT’s penis. As a result, when he got home, he spoke with CERS concerning IPQT’s complaint. He said he asked CERS to come outside and told him he was going to ask him something and told CERS to be open and honest. He then told CERS what he’d been told by IPQT and CERS started to cry and covered his face with his hands. He said CERS admitted he’d done something to IPQT 3 or 4 times, in the shower and in his room. He said CERS also admitted he had IPQT playing with and sucking CERS’s penis.[82]
  1. [31]
    Mr FHMR said he asked CERS whether the defendant had touched him, and CERS was upset and at first said no. Mr FHMR said he again asked CERS whether the defendant had done something to him, and CERS said yes. Mr FHMR also said he “brought up” something that happened to him as a child and told CERS it was not his fault, and that he shouldn’t feel ashamed of someone else’s decisions. He said he then asked CERS what the defendant had done, and CERS said the defendant “used a banana”. He said he asked “What did he do with the banana?” and CERS replied “He put it up my backside.”[83] Mr FHMR also said he then told CERS the defendant is a bad man. He acknowledged he had previously told CERS his father was a bad man.[84]

Exhibit 5 - Admissions of Fact

  1. [32]
    The documents which constitute Exhibit 5 include admissions of fact to the following effect:
  1. The defendant was arrested on 19/10/2017 in respect of offences committed that day upon PIKJ and has remained in custody since.             
  2. CERS was interviewed by police on 1/11/2017 and gave an account which included details of events relevant to offences committed by the defendant against PIKJ on 19/10/2017.
  3. CERS did not describe to police on 1/11/2017 any sexual or violent conduct by the defendant towards himself; or any occasion in which he was in fear of, or urinated because of his fear of, the defendant; or of any negative conduct of the defendant directed towards himself. Although CERS was not asked directly whether the defendant had done anything to him, he was given opportunity to describe what, if anything, the defendant had done.
  4. The defendant lived with MJNS and their children (including TYHZ), at residences at: Conan Close, Wulkuraka from 2006-2007; Clay Street, West Ipswich from 2007-2009; Des Artes Place, Wulkuraka from 2010-2011; Mount Crosby Road, Tivoli from 2011-2014; Colamba Street, Chinchilla from 2014-2015; Hughes Avenue, Chinchilla from 2015-2017; Zeller Street, Chinchilla from 2017-2018.
  5. The defendant pleaded guilty to, or was convicted of, committing offences against TYHZ, PIKJ, and ONPO.
  1. [33]
    The defendant’s offending against TYHZ was his maintaining an unlawful sexual relationship with TYHZ from when TYHZ was aged 8 until aged 16. The conduct included showing TYHZ pornography, having TYHZ masturbate himself, the defendant masturbating in front of TYHZ, attempting to convince TYHZ to have sex with PIKJ, having TYHZ perform oral sex on the defendant, and on a couple of occasions penetrating TYHZ’s anus (it is unknown whether this was with an object or part of the defendant’s body). The conduct commenced when the family lived at Conan Close and continued at each subsequent residence. The conduct increased in frequency when the family lived at Mount Crosby Road. TYHZ disclosed the offending on 22/10/2017 after becoming aware of PIKJ’s complaint.
  1. [34]
    The defendant’s offending against PIKJ was his maintaining an unlawful sexual relationship with her from when she was aged 6 until aged 16. The conduct included the defendant kissing PIKJ on the mouth, touching her vagina and chest under her clothing, showing PIKJ pornography, having PIKJ perform oral sex on the defendant, penetrating her vagina with his fingers, attempting to penetrate her vagina with his penis, and licking her vagina. The last offending against PIKJ occurred on 19/10/2017 at the Zeller Street residence which resulted in police being called and the defendant being arrested. PIKJ disclosed the offending after this incident. In that incident the defendant licked PIKJ’s vagina, penetrated her vagina with his fingers, and attempted to penetrate her vagina with his penis, all without her consent. The conduct commenced when the family lived at Conan Close and continued at each subsequent residence.
  1. [35]
    The defendant’s offending against ONPO occurred at the Hughes Avenue residence on a single occasion, between May 2016 and July 2017 when ONPO was aged 12 or 13 years. The conduct included the defendant touching ONPO’s breasts outside her clothes and touching her vagina under her clothes.

Legal principles

  1. [36]
    The prosecution bears the onus of proving the elements of each charge beyond reasonable doubt. The elements of the offences are as set out below. The defendant has no onus of proof and is presumed by me to be innocent. In this case the defendant did not give or call evidence. I draw no inference against the defendant because he did not give evidence; that fact remains irrelevant to the question whether the prosecution have proved the elements of the offences beyond reasonable doubt. My verdicts in this case are based solely upon the evidence admitted during the trial and without influence such as sympathy for, or prejudice against, any person. I have had regard to the whole of the evidence in determining whether the prosecution has proved guilt beyond reasonable doubt. The evidence in respect of the different charges is different. I have had regard to any doubt raised on the evidence concerning a specific charge when considering whether the other charges are proved.
  1. [37]
    In this case the evidence of CERS consisted of the police interviews and his pre-recorded evidence. CERS was aged 13 years when interviewed by a single police officer on 2/3/2019; and aged 15 when he gave evidence. The evidence was given from a remote room, connected to the court room via audio visual link, and with a support person present. All non-essential persons were excluded from the court room when CERS gave evidence and when the recordings were played during the trial. I acknowledge these are the routine practices of the court for taking and showing evidence of child witnesses such as CERS and I do not draw any inference as to the defendant’s guilt because those measures were used. Also, the probative value of the evidence has not increased or decreased, and I have not given the evidence any greater or lesser weight on account of the use of those measures. I have ignored the fact the recordings of the police interviews and the evidence of CERS, played in evidence, have been edited.
  1. [38]
    The prosecution relies upon an alleged confessional statement made by the defendant to TYHZ. The making of the statement is disputed. Before I may act upon that statement, I must be satisfied both that it was made, and that the contents of it were true.
  1. [39]
    Here, the prosecution relies, at least in part, upon circumstantial evidence in proof of the offences. I recognise that to find any charge proved based substantially upon circumstantial evidence, it is necessary that I conclude guilt is the only rational inference that could be drawn from the evidence, and where a reasonable hypothesis consistent with innocence exists, I must find the defendant not guilty accordingly.
  1. [40]
    Evidence of preliminary complaint was received from the witness FHMR, as set out above. That evidence is relevant only as regards the credibility or reliability of CERS due to consistency or inconsistency, and is not evidence of the truth of the allegations made therein. The evidence revealed the complaint was made in circumstances where CERS was being questioned by Mr FHMR about CERS having indecently dealt with his younger brother. The evidence of both Mr FHMR and CERS was to the effect that the complaint was made in response to direct questions put to CERS about whether the defendant had touched him, and after an initial denial that the defendant had done so. The defence case is that the alleged acts of rape did not occur at all. These circumstances raise, as a possible motive for making a false complaint, that CERS believed he would himself be in trouble due to the allegations against him. In addition, the evidence showed there was considerable animus against the defendant by members of the family in light of his offending against family members, and that this was known by and/or discussed amongst, the family, including CERS. Whether a motive to lie by CERS has been established remains for my determination. I acknowledge that any failure to prove a motive to lie remains irrelevant when considering the credibility and reliability of CERS.
  1. [41]
    In this case evidence was admitted of other sexual offending by the defendant against children in his household and which is not the basis of any charge on the indictment. In particular, this included sexual offending against the defendant’s biological daughters and his stepson. That evidence is set out at paragraphs [33]-[35] above.
  1. [42]
    The relevance of this evidence is limited to showing, if accepted, that the defendant had a propensity to engage in sexual activity with children in his care. If I accept the evidence proves that propensity, I may have regard to that evidence when considering the specific allegations which are the subject of the charges, because that may make those charged allegations more likely to be true. However, the evidence cannot be used by me as a basis to conclude the defendant is a person of bad character, or who is deserving of punishment, and to find him guilty on that account; or to conclude that because he engaged in that behaviour, he is more likely to, or must, be guilty of the charged offences. The propensity evidence, if accepted, is relevant only as circumstantial evidence that may make the charged allegations more likely to be true, because it shows the defendant had a propensity to engage in sexual activity with children in his care.
  1. [43]
    Further, in this case, CERS gave evidence of the defendant committing acts of violence against him that are not charged as an offence on the indictment. CERS’s evidence as to this is set out above at paragraphs [8]-[10] and [16].
  1. [44]
    This evidence can only be used for assessing the credibility or reliability of the account of CERS. If I accept these uncharged acts of violence, or threats of violence, occurred, that may explain CERS’s behaviour or reactions, or may explain for example why he put up with the defendant’s conduct or did not complain about it sooner. On the other hand, if I do not accept these allegations are true, that may cast doubt upon CERS’s credibility and reliability. However, the evidence cannot be used by me as a basis to conclude the defendant is a person of bad character, or who is deserving of punishment, and to find him guilty on that account; or to conclude that because he engaged in that behaviour, he is more likely to, or must, be guilty of the charged offences. The only relevance of this evidence is as regards the credibility and reliability of the evidence of CERS.

Particulars and elements of offences

Counts 1 & 2: Rape

  1. [45]
    Section 349 of the Code provides that any person who rapes another person commits an offence. Rape is there, relevantly, defined to have occurred if the person penetrates the anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent.  That section also provides that a child under the age of 12 years is incapable of giving consent. The prosecution particularised the rape for count 1 as constituted by the defendant’s act of inserting his finger into the anus of CERS. For count 2 it is alleged the defendant inserted a banana into the anus of CERS. Both acts are alleged to have occurred on the one occasion and when CERS was aged 4 or 5 years. Therefore, the elements of these offences are as follows:
  1. The defendant penetrated the anus of CERS with his finger for count 1; and with a banana for count 2.
  2. At the time of the penetration of the anus, CERS was aged under the age of 12 years.
  1. [46]
    The prosecution relies upon s 583(1) of the Code which relevantly provides that upon an indictment charging a person with committing an offence, the person may be convicted of attempting to commit the offence. The prosecution also relies upon section 578(1) of the Code which relevantly provides that in the case of an indictment charging rape, the person may be convicted of an offence against s 210(1) of the Code, where such an offence is established by the evidence. The prosecution contends that if the charges of rape are not made out, then alternative charges of attempted rape or indecent treatment of a child under 16, under 12, under care, who is a lineal descendant, are established by the evidence.
  1. [47]
    Section 4 of the Code provides what is necessary in order to attempt to commit an offence. That provision requires proof that a person, intending to commit an offence, began to put that intention into execution by means adapted to its fulfilment, and manifested that intention by some overt act, but did not fulfil the intention to the extent of completing the offence. The elements of the offences of attempted rape are as follows:
  1. The defendant attempted to penetrate the anus of CERS with his finger for count 1; and with a banana for count 2.
  1. At the time of the attempted penetration of the anus, CERS was aged under the age of 12 years.
  1. [48]
    Section 210(1) provides that any person who unlawfully and indecently deals with a child under the age of 16 years commits an offence. It is more serious if the child is under the age of 12 years; or if the offender, for the time being, has the child under their care; or is to the knowledge of the offender, their lineal descendant. The elements of the offences of indecent treatment of a child under 16, under 12, under care, who is a lineal descendant are as follows:
  1. The defendant dealt with CERS by touching his anus with a finger for count 1; and by touching his anus with a banana for count 2.
  2. The dealing was indecent, i.e. contrary to community standards of decency.
  3. The dealing was unlawful, i.e. not authorised, justified or excused by law.
  4. At the time of the dealing CERS was under the age of 12 years.
  5. At the time of the dealing the defendant had CERS under his care for the time being.
  6. At the time of the dealing, CERS was, to the knowledge of the defendant, his lineal descendant.
  1. [49]
    In the case of each of these alleged offences, the acts relied upon are capable of establishing the offences. For the charges of rape, if it is established beyond reasonable doubt the defendant penetrated the anus of CERS with his finger for count 1, and with a banana for count 2, at a time when CERS was aged 4 or 5 years, the elements of the offences would be made out. If it is not established the defendant in fact penetrated the anus of CERS with his finger or a banana, but nevertheless it is established he intended to do so, and attempted to achieve that result by touching CERS’s anus with his finger or a banana, and that this occurred at a time when CERS was aged 4 or 5, then the elements of the offences of attempted rape would be made out. If an intention to penetrate the anus is not proved, but nevertheless it is established the defendant touched the anus of CERS with his finger or a banana, when CERS was aged 4 or 5 and the defendant was then caring for CERS who he knew to be his biological son, then the elements of the offences of indecent treatment of a child under 16, under 12, under care, who is a lineal descendent would be made out. There is no argument that if that touching in fact occurred it was not indecent and unlawful.
  1. [50]
    The real issue then, for each of counts 1 and 2 is whether the conduct alleged is proved, beyond reasonable doubt, to have occurred.

Count 3: Common assault

  1. [51]
    Section 335 of the Code provides that any person who unlawfully assaults another commits an offence. Relevantly, pursuant to s 245 of the Code, a person assaults another if the person strikes, touches or moves, or otherwise applies force of any kind to the person of another, without the other person’s consent. The prosecution particularised the offence of common assault, count 3, as being constituted by the defendant grabbing CERS by the throat and holding him against the wall.
  1. [52]
    The elements of count 3 therefore are:
  1. The defendant assaulted CERS by grabbing him by the throat and holding him a against the wall without his consent.
  1. The assault was unlawful, i.e. not authorised, justified or excused by law.
  1. [53]
    The acts of the defendant relied upon as the basis of the assault, if done without CERS’s consent, are capable of amounting to an assault; i.e. the acts of grabbing CERS by the throat and holding him against the wall would amount to an application of force. It was submitted that if I am satisfied beyond reasonable doubt the defendant assaulted CERS, then it is also necessary for the prosecution to prove beyond reasonable doubt that assault was not provoked by the acts of CERS within the meaning of sections 268 and 269 of the Code.

Submissions

  1. [54]
    Written submissions of the parties were admitted as Exhibits 6 (prosecution) and 7 (defence).
  1. [55]
    The prosecution contends the evidence of CERS is detailed and consistent regarding counts 1 and 2. It is submitted that evidence shows when CERS was aged 4 or 5, the defendant entered CERS’s room when he was on the bottom pink bunk bed, in a room he shared with his sister, pulled down his shorts, lay behind him, and inserted first a finger, and then a banana into his anus, before leaving while carrying the banana, and then having CERS shower whilst he watched. It is submitted for the prosecution that account was given in the police interviews and maintained in the pre-recorded evidence, except in so far as CERS expressed uncertainty as to whether actual penetration of his anus occurred. The prosecution contends this evidence is on its face credible and reliable and should be accepted.
  1. [56]
    The prosecution submits the evidence of TYHZ supports a conclusion that the offences the subject of counts 1 and 2 occurred. It is submitted this evidence shows the defendant told TYHZ he committed the act which is the basis of count 2, at a time before any complaint was made by CERS. The prosecution submits that TYHZ’s evidence that this is what the defendant told him is credible and reliable given that he related a conversation which is memorable, that the confessional statement was made at a time when TYHZ was also a victim of the defendant’s sexual abuse, the sexual abuse of TYHZ included similar conduct, and TYHZ had not complained of that abuse at the time of the admission by the defendant. The prosecution points to the evidence of the family members that no discussion about details of the defendant’s conduct had been discussed openly with CERS as also indicating the reliability of this confession. The prosecution also submits that although not of itself proof of count 1, if accepted as reliable, the admission by the defendant is strongly suggestive that count 1 occurred, since it is alleged the two events occurred on the one occasion.
  1. [57]
    The prosecution also relies upon the propensity evidence as circumstantial evidence making it more likely CERS’s evidence concerning counts 1 and 2 is true. The prosecution argues the uncharged offending shows the defendant had a propensity to engage in sexual activity with children in his care. It is submitted that, accepting that to be so, increases the likelihood CERS’s claims the defendant inserted objects into his anus is reliable.
  1. [58]
    The prosecution also contends the complaint by CERS to FHMR is consistent as to detail compared with CERS’s evidence and therefore bolsters the credit and reliability of CERS’s allegations. The prosecution accepts the evidence is capable of showing a motive for CERS to have made a false complaint given the circumstances in which he made the disclosure to Mr FHMR. However, the prosecution submits that in light of CERS’s rejection of the suggestion he lied, the features of his evidence showing reliability, and in light of the other supporting evidence, the suggested motive should be rejected.
  1. [59]
    The prosecution submits counts 1 and 2 are proved by the evidence but relies upon potential alternative charges in the event the court is not satisfied as to penetration. The prosecution contends in the first instance the evidence would show an attempt at penetration on each occasion. If not satisfying the requirement of there being an attempt at penetration, the prosecution submits that touching of the anus with a finger and banana satisfies the elements of offences of indecent treatment.
  1. [60]
    The prosecution also submits the evidence overall shows the allegation which is the basis of count 3 should be accepted. Although acknowledging differences in the accounts of the respective witnesses, the prosecution submits that each describe the defendant holding CERS against the wall with his arm after some accidental contact with the defendant’s glasses. The prosecution submits that inconsistency by witnesses as to precise events might be expected and is itself suggestive that the witnesses have not colluded. The prosecution relies upon CERS’s description of other violence towards him by the defendant as giving context to the alleged event and explaining why CERS did not complain at some earlier time. The prosecution points out also that the case suggested by defence counsel was that the defendant pushed CERS against the wall after they had been wrestling and CERS knocked the defendant’s glasses off, although CERS denied that he had punched the defendant. The prosecution submits a defence of provocation is not raised on the evidence, and in any event, the defendant’s conduct was disproportionate to any provocation by way of knocking the defendant’s glasses off.
  1. [61]
    For the defence it was submitted that none of the charges are proved beyond reasonable doubt. It was submitted the evidence of CERS should be regarded as unreliable and inconsistent and the other evidence rejected or found to be of little value.
  1. [62]
    Regarding counts 1 and 2, the defence contend the case depends upon the evidence of CERS. The defence submit his evidence is inherently improbable, describing the alleged conduct without any context or further detail which might demonstrate reliability, and is made in circumstances likely resulting from things CERS has heard within the family. The defence point to the description given by CERS to police as showing unreliability. In particular, it was submitted that account was replete with words indicating uncertainty, a lack of memory, or what probably occurred. It was submitted the only real consistency in the account to police is that penetration actually occurred, whereas that allegation was specifically abandoned in the evidence later given. Further, in evidence CERS explained he only assumed he was penetrated with a finger and banana and no legitimate basis existed for his assumptions. The defence point out CERS was also inconsistent as to which event occurred first.
  1. [63]
    The defence contend the preliminary complaint evidence also detracts from CERS’s credibility and reliability. It is submitted the complainant then had a clear motive to deflect blame because he believed he was in trouble. Further, the version to Mr FHMR did not describe the other conduct complained of to police. The defence also submit Mr FHMR said he told CERS of things that happened to him as a child, and which Mr FHMR acknowledged were similar to that complained of by CERS, which likely coloured CERS’s complaint. The defence also point out that initially when asked if the defendant had touched him, CERS said no. The repetition of the question, it is submitted, likely suggested the right answer for CERS was to say yes.
  1. [64]
    The defence also submit the reliability of CERS’s evidence is further diminished because of his failure to complain when interviewed by police in 2017, after the defendant had been arrested following PIKJ’s complaint. The defence argue that since the defendant was no longer in the house, and the police interviewed CERS about the sexual complaint of his sister, the failure to mention any sexual or physical assault by the defendant upon himself is telling, especially since, on CERS’s account, count 3 must have occurred shortly before the interview.
  1. [65]
    The defence also contend the court would not be satisfied the alleged admission was made to TYHZ. The defence point to the lack of detail as to exactly what was said in the confessional statement, that there was no clear evidence as to when it was said, or any detail of surrounding events or conversation. The defence submit TYHZ had motive to make up the evidence given the defendant offended against him and other family members. The defence submit the alleged statement does not have the ring of truth and it is fanciful the defendant would make such a serious and unguarded statement to a member of the family.
  1. [66]
    Regarding the offending against other family members, the defence submit that evidence tends to show the account of CERS is less likely to be true rather than the opposite. It is submitted this is because of the real dissimilarity between the uncharged offending against family members and CERS’s charged allegations. The defence submit this evidence does not assist the prosecution case.
  1. [67]
    In respect of count 3, the defence submit the evidence of CERS is entirely inconsistent with the other eyewitnesses. The defence argue the inconsistencies are material and no basis exists to prefer one account over another or others. The defence contend that a defence of provocation is raised in relation to count 3 given the complainant’s evidence that the defendant reacted after his glasses were knocked off. The defence contend the prosecution cannot exclude such a defence.
  1. [68]
    The defence also contend that issues showing unreliability of CERS concerning individual charges are such as to undermine the reliability of his evidence generally.  The defence submit the defendant should be found not guilty of all counts.

Consideration

  1. [69]
    The prosecution relies principally upon the evidence of CERS as proof of each count, but points to other evidence as demonstrating or supporting the reliability of that evidence. Although the alleged confessional statement by the defendant to TYHZ is capable on its own of proving the element of penetration, that evidence alone cannot prove count 2, since it does not in any way identify when that conduct might have occurred, or otherwise show that it occurred without CERS’s consent. It follows that for counts 1 and 2, the prosecution case is dependant upon acceptance of the material parts of CERS’s evidence. For count 3 there are a number of witnesses, apart from CERS, who give evidence of a potential assault upon CERS, so that the case for count 3 is not solely reliant upon his evidence. It is convenient to first consider the reliability of CERS’s evidence.
  1. [70]
    CERS claims he was anally raped by his father at a time when he was aged 4 or 5. CERS was born on 16/1/2006 and turned 4 on 16/1/2010, turned 5 on 16/1/2011, and turned 6 on 16/1/2012. Yet the indictment charges the alleged offences, for each of counts 1 and 2, as occurring between 1/4/2007, when he was aged 1, and 31/9/2010, when he was aged 4. For the offences to have occurred consistently with the charged period it must have occurred between 16/1/2010, when CERS turned 4, and 31/9/2010. CERS said he thought this happened at the family house at Clay Street, and on the pink bunk bed he shared with his sister. He conceded it may have occurred at a different house. According to the admissions (Ex 5), the family lived at Clay Street from 2007 until 2009, and next lived at Des Artes Place from 2010 to 2011. No evidence was led from any other source which might cast light upon whether, or if so, where or when, CERS shared a pink bunk bed with his sister.
  1. [71]
    On CERS’s account, he first told anyone about the anal rape in 2019. He said however, this was only a recent memory having first recalled it only 2 or 3 months before. By the time of the pre-recording of his evidence, CERS himself referred to this as not even a memory, but rather something he thought occurred. CERS told police of this event occurring in his bedroom in the morning when home alone with the defendant and described he was wearing boxer shorts. To recently recall such detail would seem a remarkable feat, by then approaching 10 years afterwards, and regarding events that occurred when he was aged 4 or 5. CERS’s account contains very little description of surrounding events, save for the defendant afterwards watching him shower.
  1. [72]
    Although purporting to describe an actual memory, when questioned by police, CERS could not say whether the penetration of his anus hurt, or describe what it was he felt. It might be expected that penetration of the anus of a 4 or 5 year old, with a finger and banana, would at least be uncomfortable, and most likely a painful experience. Ultimately, CERS acknowledged he made assumptions as to what he was penetrated with, and eventually, admitted he believed he had not been penetrated at all, but instead thought objects touched his anus.
  1. [73]
    It is contended there is a degree of consistency between CERS’s evidence and his complaint to Mr FHMR, which bolsters CERS’s credibility and reliability. No detail was given in the preliminary complaint beyond the allegation of insertion of a banana. Although that is arguably consistent with the allegation as made by CERS to police, it is inconsistent with CERS’s later evidence disavowing knowledge of what penetrated him, and his belief that he had not been penetrated at all. In addition, no complaint was made to Mr FHMR of insertion or touching by any other or different object. To the contrary, I conclude the preliminary complaint evidence undermines the reliability of the account of CERS. Inconsistency also exists as to the order of events described by CERS. Initially, CERS told police the banana came first, followed by the finger. When clarified, CERS hesitated before changing the order.
  1. [74]
    Further problems arise regarding CERS’s credibility and reliability in light of the circumstances in which his complaint was made. Contrary to CERS’s account to police, and as initially given by him in evidence, it is clear CERS complained only at a time when he believed he was himself in trouble for sexual offences committed against his younger brother. CERS accepted as true the circumstances as described by Mr FHMR. I conclude he was not honest when claiming he complained simply to get it off his chest. CERS’s complaint was not one spontaneously volunteered, but resulted from the express question by Mr FHMR whether the defendant had touched CERS, and after Mr FHMR’s suggestion that would provide an excuse for CERS’s conduct. Even then, CERS at first denied the defendant had touched him, before claiming he had done so. These circumstances further undermine the credibility and reliability of CERS’s allegations. I conclude these circumstances demonstrate a motive for CERS to have made a false complaint. The defence submitted the evidence of Mr FHMR was that he told CERS the detail of his own similar abuse as a child and that CERS simply copied that detail. This submission assumes Mr FHMR gave such detail to CERS. Mr FHMR did not in fact say he did so and he was not asked what it was that he told CERS about his own abuse. This submission is rejected.
  1. [75]
    The prosecution relies upon the alleged confession by the defendant to TYHZ of his having inserted a banana into CERS’s anus, as independent support for CERS’s allegation for count 2. The making of that statement is disputed. TYHZ was unable to provide the words used in that confession or give any context to the conversation. He was unable to say what was discussed before or after. He was unable to say when the conversation occurred and offered only the possibility it was in 2015. What seems clear is that TYHZ told no one of that alleged admission prior to CERS’s complaint, even though, he himself complained of similar conduct in 2017. Although the details of TYHZ’s disclosing the alleged confession were not explored in evidence, the clear inference is that it followed upon TYHZ becoming aware of the detail of CERS’s complaint to TYHZ’s father, FHMR.
  1. [76]
    The prosecution asserts that TYHZ’s evidence of the making of this confession should be accepted because it was something memorable, TYHZ claims to have been told this prior to CERS’s complaint being made, that this was a confession to someone who the defendant was also abusing sexually, including by penetrating his anus, and who had not by then himself complained, and because both CERS and TYHZ denied discussing CERS’s allegations. The prosecution arguse that if the statement was made by the defendant, it follows that it was a truthful confession.
  1. [77]
    However, in circumstances where there is no independent proof of the making of the statement, where the detail of what it is claimed the defendant said is absent, and where no surrounding detail or context is provided which might demonstrate reliability, I am not satisfied TYHZ’s evidence should be accepted. The evidence has at least the appearance of being a convenient addition, provided in support of a younger brother, and in circumstances where, perhaps for good cause, significant animosity exists towards the defendant. In light of CERS’ evidence that his recall of the alleged event resulted from talk within the family, the submission that each independently reported a similar unusual event is unpersuasive. Similarly, that the defendant might be thought more likely to have admitted the event to someone in TYHZ’s position does not seem to me indicative of reliability. I am not prepared to act upon TYHZ’s claim the defendant made such a statement to him.
  1. [78]
    It was submitted the reliability of CERS’ allegations is also undermined by CERS’ failure to complain at an earlier time. A delay in complaining is a common experience in cases of sexual offending involving children, including within families. That a child of tender age, who continues to reside with the offender, delays in complaining about sexual abuse by that person would hardly seem surprising. In this case it is contended it is CERS’ failure to complain after October 2017, which is of significance. It is submitted this is so because CERS was then aware the defendant had been arrested and charged and removed from the household as a result of alleged sexual offending against CERS’s older siblings, and CERS was himself then interviewed by police but did not describe the defendant sexually or physically assaulted him. CERS’s explanation was, to the effect, that he was not asked directly that question and he described to police only what he knew concerning others. Although it seems plain that CERS was given opportunity to complain to police in 2017, I do not regard his failure to complain at that time as of significance, given that he was not asked specifically whether the defendant had touched or harmed him.
  1. [79]
    CERS also described to police that he was assaulted many times by the defendant resulting in his wetting his pants out of fear. He detailed two such occasions to police. He first described the last such assault, when he was dragged out of bed because he wouldn’t get up for school. He said that resulted in his being lifted and choked against the kitchen wall and occurred when they were living at Zeller Street. After the interview ended, CERS detailed another incident and the interview resumed. It is this incident which is relied upon as count 3. CERS then described what he said occurred about a week before the last assault. He said he and the defendant were wrestling, he accidentally knocked his glasses off, and the defendant got angry and punched and kicked him and threw him against the wall. He did not describe the defendant choking him in this incident. However, by the time he gave evidence, CERS claimed he was choked in the incident where there was wrestling, and the defendant’s glasses were knocked off.  He then also claimed that event occurred at the Hughes Avenue residence. He specifically denied his mother and TYHZ intervened to stop the defendant in this incident, although he said they did so on another occasion.
  1. [80]
    The other witnesses to this incident all gave different versions as to what occurred. CERS’ mother MJNS said the wrestling and knocking off of glasses occurred in the media room, that CERS then went to the girls room, the defendant went to that room some minutes later, and there he choked CERS against the wall. She said she and TYHZ intervened. CERS’ sister PIKJ said the incident happened in the media room and started when CERS tried to get past the defendant but accidentally knocked his glasses off. She described the defendant choking CERS in the media room whilst she and her mother watched from the kitchen. TYHZ did not see the wrestling or the defendant’s glasses knocked off, but heard the commotion and came out to see the defendant holding CERS against the wall, just outside the media room, with a forearm against his throat. He said this lasted about 8 seconds and the defendant went back to the media room and CERS went to his own room. Each of the four versions is different regarding what other violence was inflicted upon CERS. None of these versions are consistent except to the extent of describing the defendant forcing CERS against a wall. None of these four versions even have CERS forced against the wall in the same room.
  1. [81]
    The prosecution contends the evidence of each of the witnesses, including CERS, is all the more reliable because there is not evidence of collusion or contamination by the version of others. However, I conclude that is not so. CERS told police his mother told him when the assault he first described had occurred. When asked why he was only lately able to recall the banana incident, he attributed it to what was spoken about within the family. He said it was “always the word around the house and talking about it, so things would come back to my mind”; yet he could provide no detail of what it was that was discussed. CERS’ mother admitted speaking with CERS about the detail and timing of the alleged common assault prior to his speaking to police. She denied speaking to CERS about the other children’s complaints. PIKJ denied CERS was aware of the detail of her complaint and initially denied speaking to her mother regarding the alleged common assault upon CERS, but eventually acknowledged she spoke with the adults in the house about that. Mr FHMR admitted he had told CERS, prior to CERS’ complaint to him, that his father was a bad man. In the end, particularly in light of the statements by CERS about what he had heard or been told, I conclude there was opportunity for CERS to learn of the allegations of what occurred to others within the family.
  1. [82]
    The prosecution also relies upon the propensity evidence as circumstantial evidence increasing the likelihood that CERS’ evidence is truthful. The evidence shows the defendant engaged in the serial sexual abuse of children within his household, for his own sexual gratification. The conduct continued over many years. It included penetrative acts of insertion of fingers into the vagina of the defendant’s daughter PIKJ, insertion of an item or body part into the anus of the defendant’s stepson TYHZ, and having both of those children perform oral sex upon the defendant. It also included indecent sexual touching of the defendant’s daughter ONPO. It was contended on behalf of the defendant that this evidence does not render the charged allegations more likely to be true because the acts described by CERS are remarkably different to those identified in the propensity evidence. This submission must be rejected since it is the existence of the unusual or distinctive propensity to behave in a certain way that has value as circumstantial evidence and proof of the propensity does not depend upon similarity of conduct.
  1. [83]
    I am satisfied the evidence of uncharged offending shows the defendant had a propensity to engage in sexual activity with children in his care. I am also satisfied this evidence makes it more likely the allegations of CERS, that the defendant inserted a finger and banana into his anus, are true. However, that CERS’ allegations are more likely to be true does not equate to the standard required for proof of those allegations. I can only find those charges proved if satisfied beyond reasonable doubt the relevant acts occurred. Although the propensity evidence makes those allegations more likely to be true because the defendant is a person more likely to do such acts, nevertheless I am not satisfied beyond reasonable doubt those acts occurred. This is because of the many matters set out above which materially undermine the reliability of CERS’ account.
  1. [84]
    I find the evidence of CERS to be entirely unconvincing. The allegations of penetration of the anus are themselves odd.  But the claim to have recalled acts occurring as a 4 or 5 year old, only as recently as a few months before revealing them for the first time when aged 13, strains credibility. Ultimately, CERS himself expressed his belief the central acts he complained about did not actually occur, retreating from his assertion that items were inserted into his anus and instead alleging only that he was touched. The possibility of collusion or suggestion also looms large given CERS’ explanation for gaining this memory. No real detail demonstrating reliability is found in CERS’ account. The circumstances of the making of his complaint are strongly suggestive of a fabrication. The preliminary complaint evidence also undermines CERS’ credit due to inconsistency. The alleged confessional statement cannot buttress CERS’ credibility or reliability since I am not satisfied the statement was made. The propensity evidence, although damning of the defendant, is not capable itself of proving the charges and my verdicts cannot be based purely upon evidence of the defendant’s bad character and past crimes. I am not satisfied beyond reasonable doubt the acts relied upon for either of counts 1 or 2 actually occurred.
  1. [85]
    CERS’ evidence concerning the alleged common assault is also fundamentally inconsistent. It changed significantly between the police interview and the pre-recorded evidence. That CERS also claimed to have been assaulted on other occasions is of no moment given the inadequacy of the evidence as to this alleged event. The other eyewitnesses to this event are all significantly inconsistent with each other, and with CERS. That the defence were accepting that some incident occurred does not, in the circumstances, provide any basis to conclude any one of the witnesses is reliable or should be accepted in favour of any other. The evidence does not permit a conclusion beyond reasonable doubt as to how the incident unfolded. I am therefore left with a reasonable doubt as to what occurred. Count 3 has also not been proved.
  1. [86]
    Because I have concluded I am not satisfied beyond reasonable doubt the acts relied upon for counts 1 and 2 actually occurred, it is unnecessary to consider the elements of the alternative charges; they too must fail because the acts relied upon have not been proved. Likewise, because I am unsatisfied of the alleged acts for count 3, it is unnecessary to consider whether what occurred was unlawful.
  1. [87]
    In this case, as I have expressed, I conclude there are significant deficiencies regarding the evidence for each count. Taking account of those deficiencies when considering each of the other counts reinforces the doubt I have expressed concerning the reliability of CERS’ evidence.
  1. [88]
    Because I am not satisfied beyond reasonable doubt any of the alleged offences actually occurred, the defendant is entitled to be found not guilty of each count.

Verdicts

  1. [89]
    In relation to count 1, I find SPRS not guilty of rape; not guilty of attempted rape; and not guilty of indecent treatment of a child under 16, under 12, under care, who is a lineal descendant.
  1. [90]
    In relation to count 2, I find SPRS not guilty of rape; not guilty of attempted rape; and not guilty of indecent treatment of a child under 16, under 12, under care, who is a lineal descendant.
  1. [91]
    In relation to count 3, the charge of common assault, I find SPRS not guilty.

Order

  1. [92]
    I make the following order:
  1. SPRS is formally discharged in respect of each of counts 1, 2 and 3.

Footnotes

[1] The pages of this transcript have been re-numbered because the original numbering was incorrect.

[2] Exhibit 2 transcript p2 lines 51-58.

[3] Ex 2 p5 lines 25-44.

[4] Ex 2 p6 lines 1-13.

[5] Ex 2 p6 lines 40-50.

[6] Ex 2 p6 line 52 – p7 line 1.

[7] Ex 2 p7 lines 3-39, p10 lines 31-34.

[8] Ex 2 p7 line 50 – p8 line 5.

[9] Ex 2 p8 line 58 – p10 line 29.

[10] Ex 2 p11 lines 20-56.

[11] Ex 2 p23 lines 40-46.

[12] Ex 2 p24 lines 7-15.

[13] Ex 2 p 24 lines 23-33.

[14] Ex 2 p 24 lines 35-37.

[15] Ex 2 p 24 line 57 – p25 line 3.

[16] Ex 2 p25 lines 44-56.

[17] Ex 2 p26 lines 44-52.

[18] Ex 2 p12 line55 – p13 line 6.

[19] Ex 2 p13 lines 12-27.

[20] Ex 2 p16 lines 1-20.

[21] Ex 2 p13 lines 42-44.

[22] Ex 2 p13 line50 – p14 line 8.

[23] Ex 2 p14 lines 24-39.

[24] Ex 2 p14 lines 41-49.

[25] Ex 2 p14 line 51 – p15 line5, p15 lines 22-43.

[26] Ex 2 p16 lines 23-31.

[27] Ex 2 p15 lines 7-20.

[28] Ex 2 p15 lines 45-52.

[29] Ex 2 p16 lines 42-57.

[30] Ex 2 p17 lines 8-16, p17 lines 28-31.

[31] Ex 2 p17 lines 18-26.

[32] Ex 2 p17 lines 37-45.

[33] Ex 2 p17 lines 51-54.

[34] Ex 2 p18 lines 31-35.

[35] Ex 2 p18 lines 41-52.

[36] Ex 2 p19 lines 20-26.

[37] Ex 2 p19 lines 48 51.

[38] Ex 2 p19 line 53 – p20 line 7.

[39] Ex 4 p1-4 lines 25-35.

[40] Ex 4 1-5 lines 26-37.

[41] Ex 4 1-7 lines 14-35.

[42] Ex 4 1-7 line 37 – 1-8 line 35.

[43] Ex 4 1-9 lines 15-46.

[44] Ex 4 1010 lines 1-21.

[45] Ex 4 1-11 lines 6-15.

[46] Ex 4 1-10 line 37 – 1-11 line 33.

[47] Ex 4 1-17 line 25 – 1-18 line 2.

[48] Ex 4 1-13 line 5 – 1-14 line 1.

[49] Ex 4 1-14 lines 6-15, 1-15 lines 4-8.

[50] Ex 4 1-14 lines 20-39.

[51] Ex 4 1-14 line 41 – 1-15 line 30.

[52] Ex 4 1-15 38 – 1-16 line 4.

[53] Ex 4 1-16 line 6 – 1-17 line 14.

[54] Ex 4 1-17 lines 16-21.

[55] Transcript 1-8 lines 15-42, 1-10 lines 6-10.

[56] T 1-13 lines 9-13.

[57] T 1-8 line 44 - 1-10 line 2.

[58] T 1-10 lines 25-39.

[59] T 1-10 lines 39-41.

[60] T 1-14 line 35 - 1-15 line 26.

[61] T 1-11 lines 1-17, 1-15 lines 28-35, 1-17 line 20 - 1-18 line 36, 1-20 lines 28 - 1-21 line 4.

[62] T 1-11 lines 27-34.

[63] T 1-11 lines 36-46.

[64] T 1-19 lines 2-47.

[65] T 1-20 lines 1-18.

[66] T 1-12 lines 12-36.

[67] T 1-12 line 38 - 1-13 line 7.

[68] T 1-13 lines 15-20.

[69] T 1-26 line 41 - 1-27 line 14.

[70] T 1-27 lines 22-46, 1-28 lines 27-39.

[71] T 1-30 lines 5-46.

[72] T 1-31 lines 5-9.

[73] T 1-31 lines 39 - 1-32 line 15.

[74] T 1-34 lines 10-43.

[75] T 1-35 line 1 - 1-36 line 18, T 1-41 lines 15-16.

[76] T 1-40 line 1 - 1-42 line 24.

[77] T 1-36 lines 25-38.

[78] T 1-36 line 43 - 1-37 line 44.

[79] T 1-38 line 20 - 1-39 line 47, 1-46 lines 29-41.

[80] T 2-4 lines 13-46.

[81] T 2-5 lines 14-27.

[82]  T 2-5 line 45 - 2-7 line 20, 2-9 lines 3-7.

[83] T 2-6 line 35 - 2-7 line 47, 2-10 lines 8-11.

[84] T 2-10 lines 35-47.

Close

Editorial Notes

  • Published Case Name:

    R v SPRS

  • Shortened Case Name:

    R v SPRS

  • MNC:

    [2021] QDC 301

  • Court:

    QDC

  • Judge(s):

    Lynch QC DCJ

  • Date:

    03 Dec 2021

Appeal Status

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

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