R v HMA[2022] QDC 4

DISTRICT COURT OF QUEENSLAND

REASONS FOR DECISION

Introduction

1. [1]
   The defendant, HMA, was charged on indictment with two alleged offences contrary to section 210 of the Criminal Code 1899 (Qld). Each charge was in same terms, as set out below:

That on a date unknown between 31 December 1981 and 1 January 1984 at Maroochydore in the State of Queensland, HMA unlawfully and indecently dealt with JKM, a child under the age of 16 years.

2. [2]
   In summary, the allegations were as follows. The complainant was 12 or 13 years old at the time of the alleged offences. The defendant is her brother. He was 16 or 17 years old and lived in the same house. The complainant alleged that on one occasion she was at home with the defendant. The complainant was in her parents’ bed, possibly because she was unwell. The defendant joined her on the bed, put the complainant’s hand on his erect penis and had her rub it (count 2) while also fondling her genitals. He partially inserted a finger into her vagina (count 1).^[1]

3. [3]
   On 17 January 2022 I ordered that the defendant be tried by a judge sitting without a jury. The trial commenced the following day with the defendant entering pleas of “not guilty” to each charge. The evidence concluded that day with the defendant announcing that he did not intend to give or adduce evidence. I heard addresses this morning.

4. [4]
   Having considered the evidence and the relevant law I am not persuaded beyond reasonable doubt that the defendant is guilty. What follows are my reasons for reaching this conclusion.

Preliminary matters

5. [5]
   Trial by judge alone is permitted in Queensland pursuant to Part 8, Chapter 62, Chapter Division 9A of the Criminal Code (Qld). The relevant provisions governing the conduct of a trial by judge alone are set out below.

615B Law and procedure to be applied

3. (1)
   In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.

3. (2)
   In a trial by a judge sitting without a jury, the judge may view a place or thing.

3. (3)
   If an Act or the common law—

1. (a)
   requires information or a warning or instruction to be given to the jury in particular circumstances; or

2. (b)
   prohibits a warning from being given to a jury in particular circumstances;

the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the course of the trial.

615C Judge’s verdict and judgment

3. (1)
   In a trial by a judge sitting without a jury—

1. (a)
   the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and

2. (b)
   any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.

3. (2)
   Without limiting subsection (1), chapter 67 applies with all necessary changes in relation to a person to be tried, being tried, or tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury.

3. (3)
   The judgment of the judge in a trial by a judge sitting without a jury must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

3. (4)
   The validity of the proceeding is not affected by a trial judge’s failure to comply with subsection (3).

6. [6]
   It is a fundamental principle of our law that a defendant in a criminal trial is presumed to be innocent.^[2] The onus is on the prosecution to prove the guilt of the defendant, if it can, beyond reasonable doubt. To do so, the prosecution must prove every element of the offence alleged. The defendant had no obligation to prove any matter in the trial, least of all his innocence.

7. [7]
   To prove either the alleged offence it was necessary for the prosecution to prove the following matters:

1. The defendant dealt with the complainant at the time and place alleged; and

2. The dealing was indecent; and

3. The dealing was unlawful; and

4. The complainant was under the age of 16 years.

8. [8]
   Before the trial commenced the parties filed an agreed document setting out the issues in the trial. It was expressly conceded that if the dealing with occurred as alleged it was unlawful and indecent. It was also admitted that at the time of the alleged events the complainant was under 16 years old. The sole issue in dispute at the trial was whether the defendant dealt with the complainant in the manner alleged. The only evidence admitted in the trial capable of directly proving this matter came from the complainant herself. As such the assessment of her evidence was the critical issue in the trial. Unless I was satisfied, beyond reasonable doubt, that her evidence was truthful and reliable, it would not be possible to find the defendant dealt with her as alleged. I will return to a summary of the evidence and my consideration of it after setting out the important legal principles raised in the trial.

Relevant legal principles

9. [9]
   As I have already noted, the onus is on the prosecution to prove, beyond reasonable doubt, each element of the alleged offences. Each charge was to be considered separately and it was, in theory, open to reach different verdicts. But in this trial, there was nothing in the evidence to distinguish between the two charges. A reasonable doubt about the truthfulness or reliability of the complainant’s evidence in relation to one allegation would inevitably produce a reasonable doubt about the remaining charge. The evidence of the witnesses might be accepted in whole or in part, but I could not be satisfied the prosecution have proven the necessary elements of the alleged offence unless I am satisfied, beyond reasonable doubt, that the complainant’s description of the defendant dealing with her was truthful and reliable. The defendant did not give evidence. I draw no adverse inference from this and note that the onus of proof remains at all times with the prosecution. The fact the defendant did not give evidence does not strengthen the prosecution case or supply additional proof against him or fill any gap in the evidence.^[3]

10. [10]
    The complainant is deemed to be a “special witness”.^[4] The court was closed when she testified. In the circumstances it is appropriate that I remind myself that I should not draw any inference about the defendant’s guilt because of how the evidence was received. Nor should I regard the complainant’s evidence as having greater or lesser weight or to be of increased or decreased probative value as a result.^[5]

11. [11]
    In the course of cross-examination, it was suggested to the complainant that she was involved in an attempt to extort the defendant. The suggested extortion involved a demand for money in return for not proceeding with a complaint to police about these alleged offences. The suggestion put in cross-examination perhaps raised the possibility she had a reason to make a false complaint. The complainant denied involvement and, as I will explain, I am satisfied she was not involved. But this conclusion does not support to the prosecution case. A failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist. If such a motive existed, the defendant may not know of it. There may be many reasons why a person may make a false complaint. The absence of some apparent motive to lie does not necessarily mean that the complainant is truthful.

12. [12]
    Apart from the complainant’s allegations concerning the offences, the balance of the relevant evidence concerned “preliminary complaint”.^[6] I have kept in mind that this evidence cannot directly prove the alleged charges and is relevant only to the assessment of the complainant’s credit. As I will explain, this had significance in this trial as there were inconsistencies between what the complainant said was done by the defendant and what witness reported being told by her. These inconsistencies caused me to doubt the reliability of the complainant’s testimony. I turn now to the evidence in the trial.

The complainant’s evidence

13. [13]
    The complaint was born in 1970. When she was weeks old, she was adopted into the defendant’s family. The defendant, born in 1965, was a few years older than the complainant. There were four brothers in the family but at the times relevant to these allegations only two, the defendant and Rodney lived at home with the complainant and their parents. When asked about the events the subject of these allegations the complainant began by saying^[7]

Well, there was a particular situation where, what I can recall because it happened a long time ago and I’ve been on anti-depressants my whole life - - -

14. [14]
    She went on to describe^[8]

I was in my mother’s bed because of, maybe, I was sick because mum used to put me in her bed all the time when I was sick when I was little and [HMA] came into that bed and he put my hand on his erect penis and I said, “Oh, that’s – that’s hard” and he was fondling me and I knew it didn’t feel right and then he wanted to have sex with me and I said, “No.  You’re my brother.”  He said, “You’re not my sister.  We’re not related.”

15. [15]
    When questioned, the complainant provided some more detail and confirmed that the defendant penetrated her vagina with his finger. She said it happened on her parents’ bed during the day when they were absent from the house. She was 12 or 13 years old at the time. The complainant also gave evidence that some days later she was asleep in her bed at night when the defendant came into her room. She was woken by him and thought he was touching her. She told the defendant to leave, or she would scream.

16. [16]
    Years later the complainant told her mother what had happened. The complainant’s mother passed away about four years ago. As for what she told others, the complainant said the following. In more recent years the complainant told her husband, GJ, that the defendant made her touch his penis and that he touched her vagina. She told her niece Jayna the same thing and told Kerri-Anne Davies that the defendant molested her by touching her vagina and putting her hand on his penis. The complainant was not asked, and did not say, what she said to other witnesses who were called to testify about conversations with the complainant.

17. [17]
    In cross-examination the complainant agreed that her memory of the alleged offences has always been vague.^[9] She accepted that she told police the events “possible” occurred in her parents’ bed where she was now certain that is where it took place. The complainant maintained that the defendant, as a 16-year-old, would play with “cowboy and Indian” figurines with the complainant in her bedroom. She maintained the alleged offences happened during the day and accepted that the defendant often worked during the day and moved to Brisbane when he turned 17. She emphatically denied any involved in an apparent attempt at extortion of the defendant, as I have referred to.

Other evidence

18. [18]
    Eight further witnesses were called in the prosecution case.

GJ – the complainant’s husband

19. [19]
    GJ testified that he and the complainant had been married for six years but in a relationship for about 20 years. He said that a couple of years after they started going out the complainant told him she had been molested by the defendant but did not give details. They spoke of this again on a later occasion, the complainant telling GJ that she was molested on two occasions, one by the defendant having her touch his penis and the other by touching her as she slept and waking her up. The later conversation happened about five years ago.

20. [20]
    In cross-examination GJ accepted that he told police he could not give them detail of what the complainant told him and that he only remembered the detail in the days leading up to the trial.

Jayna – the complainant’s niece

21. [21]
    In late October or early November 2020, the complainant and Jayna spoke. Jayna’s evidence of what she was told by the complainant was to the following effect. The complainant said that as a child she and the defendant played with figurines. There was a flavour to Jayna’s evidence that events in this regard became sexual. The complainant told Jayna that the defendant would come into her room at night and touch her by putting his hands down her pants and a finger into her vagina. On the last occasion the complainant told him to leave, or she would scream. Jayna was not sure how many times the complainant said this occurred but that it was more than once. There was no mention of any event in the parents’ bed.

Kasey Mullins

22. [22]
    Ms Mullins is a friend of the complainant. They spoke in September 2020 and the complainant told her that the defendant had sexually assaulted her when she was a child. No other detail was given.

Kerri-Anne Davies

23. [23]
    Ms Davies is another friend of the complainant. Ms Davies said the complainant told her that the defendant played with her vagina, played with himself, put a finger in her vagina and made her put her hand on his penis while in her mother’s bed. The complainant told Ms Davies of another occasion when she woke to the defendant fondling her and playing with himself. She told him to leave, or she would scream.

24. [24]
    In cross-examination Ms Davies agreed her statement to police contained no mention of an event in the complainant’s mother’s bed. She agreed it was only in recent days that she told the prosecutor of this aspect of her evidence.

Sally-Ann MacQueen

25. [25]
    Ms MacQueen is another friend of the complainant. The complainant told her the defendant molested her.

Dane – the complainant’s nephew

26. [26]
    Dane’s father is one of the defendant’s brothers. He spoke to the complainant in May or June 2020, and they discussed her allegations about the defendant. He recalled the complainant telling him that on three or four occasions when she was a child the defendant came into her bedroom and touched her inappropriately. He said he was told the defendant forced himself upon the complainant, but she “refrained”.^[10] The complainant told Dane that the defendant tried to have sex with her, telling her that they were not biological siblings. On the third or fourth occasion that the defendant went into the complainant’s room she told him to leave, or she would scream. Dane also said he was told by the complainant that the defendant touched her breasts as well as her vagina.

27. [27]
    Dane was cross-examined about an attempt to extort the defendant by demanding money, in return for which the complaint would not be pursued. He denied that the complainant had any involvement in these events.

Andrew – the complainant and defendant’s brother

28. [28]
    Andrew is the father of Dane. At one time the complainant told him the defendant sexually abused her but gave no more details.

Detective Senior Constable Brian Enright

29. [29]
    Detective Enright spoke to the complainant on 19 October 2020 and later took her statement as he investigated her complaint. There was some cross-examination about entries in police files that might raise an inference the complainant told Detective Enright that the defendant had carnal knowledge of her. If she had said this to the Detective, it would be inconsistent with the allegations. The Detective could not recall what was said and the complainant was not asked about this, despite the police records being in the possession of the defendant’s lawyers before the trial commenced. In these circumstances there was nothing in the Detective’s evidence that helps in deciding the contested issues in the trial.

The submissions of the parties

30. [30]
    For the prosecution it was contended that the complainant presented as a robust witness who made appropriate concessions, such as conceding her memory of the events was less than perfect given the passage of time. It was also submitted that some support for the complainant was to be found in the ‘underlying consistency’ of the preliminary complaint evidence. In this regard the prosecutor relied upon the apparent consistency of the allegations and the evidence of GJ, Jayna and Kerri-Anne Davies as to what they say they were told by the complainant. The prosecutor conceded there were some inconsistencies, especially in what Dane said he was told, but submitted I would doubt the accuracy of Dane’s recollection of the conversation with the complainant because he was angry and emotional at the time. In essence, it was submitted that I would excuse the apparent inconsistencies as the product of fragile memory but find general support in the repeated allegation that the defendant sexually abused the complainant, including by inserting a finger in her vagina.

31. [31]
    Finally, the prosecutor submitted that there was insufficient evidence to support an inference or conclusion that the complainant was involved in an attempt to extort the defendant and therefore had a reason to maintain a false complaint.

32. [32]
    For the defendant it was said that the preliminary complaint evidence was so manifestly inconsistent with the allegations it created a reasonable doubt about the reliability of the complainant’s account.

Findings of fact and conclusions

33. [33]
    I am not satisfied beyond reasonable doubt that the complainant’s evidence of the events in the bedroom was a reliable account. My reasoning in reaching this conclusion is as follows.

34. [34]
    First, common sense and experience suggest that some caution should be exercised when assessing a person’s claim to be able to reliably recall events that occurred nearly four decades ago. That is not to say that I start from a position of assumed unreliability. Rather, this reflects a common-sense appreciation of how memories can fade over time. When deciding if events so long ago have occurred, keeping in mind the need for proof beyond reasonable doubt, it is appropriate to consider the cogency of the evidence, and whether any objective support for the complainant’s account can be found in other evidence that I accept. An absence of objective supporting evidence does not mean that the complainant’s evidence should be assumed to be unreliable. But the absence of supporting evidence does not make the task confronting the prosecution any easier.

35. [35]
    Secondly, there is an absence of supporting evidence. There is no evidence independent of the complaint that implicates the defendant in the commission of the alleged offences. Such evidence is not required, but as I have observed, its absence does not assist the prosecution. There is some arguable consistency in the complainant’s statements made to several persons over the years that the defendant sexually abused her, including by inserting a finger into her vagina. But this amounts to consistency at an abstract or even vague level. The prosecution’s submission that this provides support for the complainant overlooks the manifest inconsistencies that emerge when considering the preliminary complainant evidence. I was invited by the prosecutor to excuse the apparent inconsistencies as reflecting an understandable mis-recollection by either the complainant or the witness. That explanation might be sufficient to explain few or relatively minor inconsistencies, but it cannot explain the inconsistencies I have identified when setting out the evidence above. I am left with accounts of what was said by the complainant on different occasions to different people that are inconsistent in material ways. There is no properly reasoned basis upon which I might reject the evidence of witnesses who say they were told inconsistent things by the complainant. To do so would amount to me arbitrarily choosing what evidence I accept without reference to any discernible criteria.

36. [36]
    Thirdly, the inconsistencies in the evidence of preliminary complaint are significant. The complainant’s allegation is that on one occasion she was in her parents’ bed when the defendant came in, put her hand on his penis and touched her genitals, including by putting a finger in her vagina. She says she told GJ, Jayna and Kerri-Anne Davies this is what happened. GJ and Ms Davies both testified they had been given such an account by the complainant. But their evidence is very much undermined by the fact that neither mentioned this in their police statements and both accepted they had only very recently recalled this was what they were told.^[11] I do not think I can place weight on a very recent recollection of a conversation that occurred some years ago, which recollection is inconsistent with what was said to police on an earlier occasion.

37. [37]
    Jayna’s evidence of her conversations with the complainant is very different to the complainant’s recollection. Unlike the allegations, Jayna recalls being told the defendant entered the complainant’s room on more than one occasion and touched her. There is no mention of an event in the complainant’s parent’s bed or of the defendant putting the complainant’s hand on his penis. No satisfactory reason has been advanced for preferring the complainant’s recollection of the conversation to Jayna. This represents a material inconsistency in what has been said by the complainant about what occurred. Similar inconsistencies emerge when regard is had to the evidence of Dane. What he says he was told is closer to the evidence of Jayna than to the allegations of the complainant. Again, I do not think there is any satisfactory reason to reject his evidence of what he was told by the complainant.

38. [38]
    I am left in the position that there is no independent evidence to support the allegations and there is evidence of different versions being given by the complainant. The matters I have mentioned above are sufficient to create in my mind a reasonable doubt about the allegations. As such I am not satisfied the prosecution have proven, beyond reasonable doubt, that the defendant dealt with the complainant in the manner alleged. It follows that the elements of the alleged offence have not been established and that the defendant is not guilty. My verdict, then, is that the defendant is not guilty on count 1 and not guilty on count 2, and the defendant is discharged.