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R v Major[2021] QDC 63

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Major [2021] QDC 63

PARTIES:

THE QUEEN

v

TRAVISS BRIAN MAJOR

FILE NO:

1186/19

DIVISION:

Criminal

PROCEEDING:

Trial – Judge alone

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 and 30 March 2021

JUDGE:

Jarro DCJ

ORDER:

The defendant is found not guilty.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – GENERALLY

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – GENERALLY

LEGISLATION:

CASES:

COUNSEL:

G Wong for the Crown

J Fraser for the Defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Lacy Lawyers for the defendant.

  1. [1]
    The defendant is charged with the following two offences:
    1. (a)
      Count 1 – That on a date unknown between the twenty-fifth day of January, 2017 and the seventeenth day of June, 2018 at Alexandra Hills in the State of Queensland, he unlawfully and indecently dealt with KW, a child under 16 years.

And KW was under 12 years.

  1. (b)
    Count 2 – That on a date unknown between the twenty-fifth day of January, 2017 and the seventeenth day of June, 2018 at Alexandra Hills in the State of Queensland, he raped KW.
  1. [2]
    The Crown has particularised count 1 as the defendant having licked the complainant’s vaginal area. For count 2, the particulars are that the defendant inserted his finger into the complainant’s anus.[1] The offences are alleged to have occurred at the same time.
  2. [3]
    The defendant, as is his right, has pleaded not guilty to the offences.
  3. [4]
    The matter was to proceed to a jury trial, however, a three day lockdown was announced over the Greater Brisbane area on the morning of, and prior to, jury empanelment. Defence counsel Mr Fraser made an oral application under s 614 of the Criminal Code Act 1899 for a judge alone trial. The Crown did not oppose the application. Crown Prosecutor Mr Wong usefully identified the requirement that given the identity of the trial judge was known at the time of deciding the application, I needed to be satisfied under s 614(3) of the Code that there were special reasons for making the order. I was satisfied there were special reasons for making the order particularly in circumstances where it was unopposed, there had been a number of unsuccessful efforts to finalise the matter, it was a number of years since the indictment was presented and, overall, it was in the interests of justice for the matter to proceed in the way that it did without a jury. Consequently the matter proceeded without a jury before me on 29 March 2021, with closing arguments received on 30 March 2021.
  4. [5]
    For the reasons to follow, I have reached the conclusion that the defendant should be found not guilty based on the high standard of proof required in a criminal trial. I have done so because I am not sufficiently persuaded that the complainant was both an honest and reliable witness. The totality of the inconsistencies within the complainant’s own evidence in the absence of corroborative evidence caused me not to accept the veracity of what is alleged to have occurred by the defendant. As such, the Crown has not satisfied me that the defendant is guilty of the offences, beyond reasonable doubt.

Evidence led at trial

  1. [6]
    The complainant was born in May 2011. She was seven years of age when she gave her s 93A interview with police on 20 June 2018. She was eight at the time of her s 21AK evidence conducted before His Honour McGill SC DCJ on 16 August 2019. In addition to the complainant’s evidence, the Crown called, as part of the case against the defendant, the complainant’s mother, BW, and the complainant’s grandmother, PM. Their evidence was in the nature of preliminary complaint evidence. Therefore there is no evidence from any independent witnesses to the alleged offending and the Crown case depends entirely upon whether I am satisfied beyond reasonable doubt that the complainant is both an honest and reliable witness in the account she has given. So unless I am satisfied beyond reasonable doubt as to the honesty and reliability of the complainant’s evidence and the account she has given, then I must find the defendant not guilty.

Complainant’s Section 93A Interview

  1. [7]
    As is required, the court was closed for the complainant’s evidence.
  2. [8]
    First, I viewed the complainant’s s 93A interview with police taken on 20 June 2018 at the Wynnum Police Station. With the agreement of counsel, a copy of the transcript of interview was provided to me. When I received the transcript, I reminded myself and I do so again, that the transcript was an aid to my understanding as it is not evidence. It was important for me to remember that it is the sounds that I heard from the recording which constituted the evidence. It is what I heard that matters and I only act on what I have heard, not on what I have read within the transcript.
  3. [9]
    In the interview, the complainant revealed a number of matters about the charged (and uncharged) acts, including:
    1. (a)
      “Him was playing with my private”;
    2. (b)
      “Ah he licked it”;
    3. (c)
      “Him put his finger in my bottom”;
    4. (d)
      “And him said do you want to be my girlfriend”;
    5. (e)
      “And I don’t remember the other stuff”.[2]
  4. [10]
    When asked by the interviewing police officer what the complainant meant by “him putting his fingers into her private”, the complainant answered “Ah, I don’t remember what happened.”[3] She recalled though that this incident occurred at her house at night-time when her parents and her three siblings were at home. Both parents were outside and her siblings were in the house when the offending occurred. Her eldest sister was in bed playing on her computer; another sister was sleeping in the room where the eldest child was playing on the computer; and her brother was in his room playing on the iPad.[4]
  5. [11]
    The complainant said she was asleep on the lounge when the offending took place.[5] She said “so him umm put his finger in my bottom” and then “him licked my private part”.[6] She awoke when he put his finger into her bottom because she felt it and it hurt. She told him to stop. She was only wearing her underwear at the time. When asked when the licking of the private part occurred, she recalled to the interviewing officer that that was the first act.[7] She also recalled the defendant inviting her to “wee in [his] mouth but [she] didn’t”.[8] She said that she became angry when he was licking her private parts because she did not like it. After the defendant licked her private parts, he then licked her foot.[9] She was unable to recall what happened when he licked her foot.[10] She remembered him asking her whether she wanted to be his girlfriend. That conversation occurred when he was licking her foot.[11]
  6. [12]
    When asked specifically about which offending action occurred first, the complainant said it was the “licking private part”.[12] The following exchange took place:

Question: “That happened first did it? So when you first woke up, what made you wake up?”

Response:When him put him finger in my bottom.”

Question: “OK. So when he licked you on your private part, were you awake or were you asleep.”

Response:Awake.”

  1. [13]
    The complainant recalled her parents were outside. “They was having a drink”. “When him stopped, I went back to sleep”.
  2. [14]
    The complainant was unable to recall the first person she told about the offending. She said the defendant did the wrong thing.

Section 21AK Evidence

  1. [15]
    A different crown prosecutor was involved in the s 21AK evidence. In the evidence-in-chief, the complainant reaffirmed her s 93A interview. However when asked whether she remembered the defendant “doing those things”, the complainant said “no”. This exchange occurred:

Do you remember [the defendant] doing those things to you?—No.

You don’t remember him doing that to you?—Yeah.

So what did you mean you said “no”?—I mean that I don’t remember it.

You don’t what?—Remember it.

You don’t remember it?—Yeah.

Is it you don’t remember it now when you’re talking to us today?—Yeah.

  1. [16]
    The complainant later said that she was unable to remember what time of the year it was when the offending occurred, though she remembered that it happened when she was seven years of age. She indicated that the first person she told was her grandmother. But she was unable to remember what she told her grandmother. She then told her mother, but could not remember the details of what she said to her. She described the offending as having occurred on the “magic lounge”.[13] It was also explored with the complainant whether she recalled wearing anything other than her underwear at the time of the offending. She restated that she was wearing underwear.
  2. [17]
    Under cross-examination, the complainant said that the patio area of the house (where her parents were at the time of the offending) was next to the loungeroom. She accepted that she told the prosecutor during a pre-trial conference that she was wearing a dress in the loungeroom when the offending occurred. She confirmed that no other offending took place on another occasion.
  3. [18]
    In response to the proposition that the defendant put his finger in her bottom, the complainant said “that’s good”. It was put to the complainant that the defendant did not put his finger in her bottom. She “agree[d]”. It was put to her that the defendant did not lick her private parts. She also “agree[d]”. It was put to her that the defendant did not ask her to be his girlfriend. She “disagree[d]”. It was also put to her that the defendant did not ask her wee in his mouth. She “disagree[d]”.
  4. [19]
    The prosecutor at the s 21AK hearing re-examined. The complainant initially responded “yes”, then said “no”, and then reaffirmed with “yes” about whether count 2 occurred. She said that she “agree[d]” to the proposition that the defendant did not put his finger in her bottom because “I felt it. When he put his finger in my bottom.” She was also re-examined about the licking of the private part, which constituted count 1 on the indictment, and she said she “agreed” because “he did it”. When asked what the defendant did, the complainant replied “nothing”. It was able to be clarified in re-examination that the complainant interpreted the word “agree” to mean “I agree they’ve done it”. On the other hand, her interpretation of “don’t agree” meant that “they didn’t do it”. She therefore did not agree with the proposition put to her in cross-examination that the defendant did not lick her private part.

Grandmother’s Evidence

  1. [20]
    PM, the complainant’s grandmother, gave the following relevant evidence:
    1. (a)
      The complainant was staying for the weekend, which was not uncommon, when the disclosure of the offending was made to her on 16 June 2018.
    2. (b)
      PM and the complainant were watching a movie together. PM then commented about one of the actors. The complainant responded that the actor looked like “Traviss”. PM assumed that it was a boy from her school, when in actual fact it was “Daddy’s friend”, being the defendant.
    3. (c)
      When pressed for details of whether the defendant had done anything to the complainant, the complainant told her grandmother that the defendant laid behind her and “It was disgusting Nanna. I don’t want to talk about it”.
    4. (d)
      The complainant’s grandmother raised the alarm with the complainant’s mother.
    5. (e)
      Under cross-examination, PM recalled giving a statement to police and indicating that she directly asked her granddaughter whether the defendant had touched her private parts, to which the granddaughter responded “no”. Also within that statement, the alleged offending was said to have occurred when the complainant’s parents were asleep.

Mother’s Evidence

  1. [21]
    BW, the complainant’s mother, gave the following relevant evidence:
    1. (a)
      The defendant first stayed over on or about 26 January 2017. He last stayed over on 16 June 2018.
    2. (b)
      The house where the family was living at the time of the alleged events was “very small”.
    3. (c)
      The complainant would often sleep in the loungeroom. Sometimes she would sleep in the loungeroom, even if the defendant stayed over.
    4. (d)
      The defendant would attend the house regularly on the weekends and share dinner and drinks.
    5. (e)
      BW was informed by PM about the defendant’s alleged offending.
    6. (f)
      When BW collected the complainant from PM, the complainant disclosed to BW that:
      1. (i)the defendant “stuck finger in bum and vagina and telling her that she could be his girlfriend”.
      2. (ii)She said “It felt sticky stuff when we were laying in bed”.
    7. (g)
      BW recalled the complainant “said he woke her up on the magic couch, and did it in Daddy’s bed. He sucked her toes and kissed her feet”.

General principles

  1. [22]
    The prosecution bears the onus of proving each element of the offences beyond reasonable doubt. Because separate charges are proffered, it is necessary that I give separate consideration as to whether the elements of each offence have been proved beyond reasonable doubt. Relevantly, the elements for count 1 are that I must be satisfied, beyond a reasonable doubt, that:
    1. (a)
      the defendant dealt with the complainant;
    2. (b)
      the dealing was indecent;
    3. (c)
      the dealing was unlawful;
    4. (d)
      the complainant was under 16 years of age;
    5. (e)
      the complainant was under 12 years of age.
  2. [23]
    For the offence of rape, I must be satisfied beyond reasonable doubt that the defendant:
    1. (a)
      penetrated the anus of the complainant;
    2. (b)
      to any extent;
    3. (c)
      with a thing or part of the defendant’s body that is not his penis;
    4. (d)
      without the consent of the complainant.
  3. [24]
    Given the age of the complainant, she clearly could not give consent.
  1. [25]
    The defendant has no onus of proof. He is presumed innocent unless he is found guilty. As was his right, the defendant did not give or call evidence. No inference can be drawn against him on that account. It is for the prosecution to prove the guilt of the defendant. He may be convicted only if the Crown establishes that he is guilty of the offences charged. The Crown is required to discharge the burden beyond reasonable doubt. Proof beyond a reasonable doubt is the highest standard of proof known to the law.

Evaluation of the evidence

  1. [26]
    My verdict in this case is based solely on the evidence presented in the courtroom and is free from any outside influence. The case turns upon my assessment of the complainant’s evidence because there are no independent witnesses to the alleged offending. I have considered all the testimony, exhibits and submissions of counsel, although I have not referred to every piece of evidence of the submissions in these reasons.
  2. [27]
    Crown Prosecutor Mr Wong submitted that despite the inconsistencies in the complainant’s evidence, I could accept her evidence as credible and reliable. He pointed to four features namely:
    1. (a)
      her demeanour;
    2. (b)
      the presence of details within the account she gave;
    3. (c)
      the coherent nature of her account;
    4. (d)
      the lack of embellishment or exaggeration.
  3. [28]
    Mr Wong also addressed some of the inconsistencies in the complainant’s evidence. Mr Wong rightly acknowledged that there was inconsistency between what the complainant complained of to her family members and what she accepted in her evidence, however he invited me to consider her young age and language difficulties as a satisfactory explanation to any inconsistency. Indeed I allow more latitude than that which is afforded to complainants of a mature age. Mr Wong submitted that I could act on the complainant’s evidence to find that events occurred in the manner stated by the complainant.
  4. [29]
    Whilst that I find that the complainant was genuinely trying to recall the events, there are a number of features sufficient enough, as Mr Fraser submitted that I should, to outweigh the latitude I give to her evidence. Notably these features involve significant inconsistencies within her own evidence, as well as the evidence of the preliminary complaint witnesses. These features cause me not to be satisfied about the reliability of the complainant’s evidence, particularly when both Mr Wong and Mr Fraser urged upon me that it is necessary to give a Robinson Direction to scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt given her age, the difference between the accounts she has given, the lack of opportunity to prove or disprove the allegations by a timely medical examination and the absence of corroborating or supporting evidence.
  5. [30]
    I am not satisfied, beyond reasonable doubt, of the reliability of the complainant’s evidence. For example:
    1. (a)
      It was unclear to me in the s 93A interview which offence occurred first. The complainant initially described count 1 followed by count 2. Yet she was awoken when count 2 occurred. So therefore she was asleep at the time of count 1. She was also able to recall where various family members were at a time when she was asleep. After the offending, she also described that she went back to sleep. When pressed by the interviewing officer about a number of matters, she was unable to remember details.
    2. (b)
      In the s 21AK evidence-in-chief, the complainant, like in the s 93A interview described wearing underwear when the offending occurred. The issue was explored further. The complainant confirmed that she was only wearing underwear. However in cross-examination, the complainant said that she wore a dress at the time of the offending. Further, she recalled count 1 having occurred prior to count 2, but then was unable to “remember [the defendant] doing this”. She was also unable to recall what she told both her mother and grandmother or how soon after the events she told them. Moreover, she seemed to accept the proposition that neither event took place. In re-examination, she appeared inconsistent in some of her answers. For example, when asked what the defendant did, the complainant answered “nothing” yet she also then seemed to clarify that counts 1 and 2 occurred. These matters trouble me such that I am not entirely convinced of the accuracy of the complainant’s recollections of how the events occurred.
  6. [31]
    Further, the preliminary complaint evidence does not assist the complainant’s evidence. I direct myself that regarding the preliminary complaint evidence that evidence may only be used as it relates to the complainant’s credibility. Consistency between the accounts of PM and BW of the complainant’s complaint and the complainant’s evidence is something I take into account as possibly enhancing the likelihood that the complainant’s testimony is true. However, I cannot regard the things said in those out of court statements by the complainant as proof of what actually occurred. In other words, evidence of what was said on that occasion may bolster the complainant’s credit because of consistency, but it does not independently prove anything. Likewise any inconsistencies between the accounts of PM and BW of the complainant’s complaint and the complainant’s evidence may cause me to have doubts about the complainant’s credibility or reliability. Whether consistencies or inconsistencies impact on the credibility or the reliability of the complainant is a matter for me. It is the inconsistencies between the accounts of PM and BW of the complainant’s complaint and the complainant’s evidence that cause me to have further doubts about the complainant’s reliability. Indeed, the complainant told no one of both acts for which the defendant is charged. She did not disclose any of the charged acts to her grandmother even after the grandmother directed specific questions about the alleged offending. No mention was made to the grandmother of any licking to the feet or weeing in someone’s mouth. The complainant revealed to the mother that the defendant not only inserted his finger into her anus but also her vagina, yet what the complainant relayed to the police were the particulars to count 2. No allegation was made about penetration of the vagina. Additionally, no reference was made by the complainant to her mother about the particulars of count 1. The complainant’s mother was told about an event that happened in the bedroom, yet when she was cross-examined she said the offending occurred on only one occasion. There are, therefore, inconsistencies in describing events which are relevant as to whether or not evidence about them is reliable, and I have deliberated upon these inconsistences. I accept that the mere existence of inconsistency does not mean that, out of necessity, I must reject the complainant’s evidence about the offending. I also appreciate that some inconsistency is to be expected, particularly when dealing with a young complainant. But all in all however, I am of the view that the preliminary complaint evidence detracts from the complainant’s reliability.
  7. [32]
    Another concern is that the house the complainant lived in when the offences are alleged to have occurred was small. According to the s 93A interview, the parents were outside when the offending happened. Mr Fraser raised the lack of opportunity for the commission of these offences because he said that if the events occurred, “it would have taken a little while”.
  8. [33]
    All in all, these matters cause me to have reasonable doubt as to the reliability of the complainant’s evidence. More particularly, I am not satisfied of the reliability of the complainant’s evidence as it relates to the offending, beyond reasonable doubt. The inconsistencies are critical matters; they are by no means insignificant; and they concern matters which go to the very heart of the offences.

Verdict

  1. [34]
    Having considered all the testimony, exhibits and submissions of counsel, and in the end, having scrutinised the complainant’s evidence with great care, I am left in a state of reasonable doubt and am unable to accept the complainant’s version of events about the offending. I am therefore not satisfied that the prosecution has proved beyond reasonable doubt each of the elements of the offences. It follows that I cannot be satisfied beyond reasonable doubt that the complainant was indecently dealt with or raped by the defendant. Accordingly, the defendant is found not guilty and is formally discharged on the two counts.

Footnotes

[1]Exhibit 1.

[2]See for instance page 1 of transcript.

[3]Page 2 of transcript.

[4]See for instance pages 2 and 3 of transcript.

[5]Page 3 of transcript.

[6]Already my first concern relates to the sequence of the offending. As to timing see also [9] and [12] of these reasons.

[7]Page 4, ln 128 of transcript.

[8]Page 4, ln 133 and 135 of transcript.

[9]Page 6, ln 199 of transcript.

[10]Page 6, ln 206 of transcript.

[11]Page 6 of transcript.

[12]Page 7, ln 215 of transcript.

[13]No evidence was raised about any uncharged acts that were elicited in the s 93A interview.

Close

Editorial Notes

  • Published Case Name:

    R v Major

  • Shortened Case Name:

    R v Major

  • MNC:

    [2021] QDC 63

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    16 Apr 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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