R v WC[2016] QDCPR 16

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to s 614 of the Criminal Code 1899 (Q) for a no jury order.

Charges

2. [2]
   The defendant is charged with the following counts:

Count 1. Between 14 February 2000 and 15 February 2004 at Maryborough and elsewhere he being an adult maintained an unlawful relationship of a sexual nature with JR, a child under 16 years and during the course of the relationship WC unlawfully and indecently dealt with JR, a child under 16 years and she was under 12 years.

Count 2. On a date unknown between 14 February 2000 and 15 February 2002 at Maryborough WC unlawfully and indecently dealt with JR, a child under 16 years and JR was under 12 years and WC had JR under his care.

Count 3. On a date unknown between 14 February 2000 and 15 February 2002 at Maryborough WC wilfully and unlawfully exposed JR, a child under 16 years to an indecent act by WC and JR was under 12 years and WC had JR under his care.

Count 4. On a date unknown between 14 February 2000 and 15 February 2002 at Maryborough WC unlawfully and indecently dealt with JR, a child under 16 years and JR was under 12 years and WC had JR under his care.

Count 5. On a date unknown between 14 February 2000 and 15 February 2002 at Maryborough WC unlawfully procured JR, a child under 16 years to commit an indecent act and JR was under 12 years and WC had JR under his care.

Count 6. On a date unknown between 14 February 2002 and 15 February 2003 at Tinana WC unlawfully procured JR, a child under 16 years to commit an indecent act and JR was under 12 years and WC had JR under his care.

Count 7. On a date unknown between 14 February 2002 and 15 February 2003 at Maryborough WC unlawfully procured JR, a child under 16 years to commit an indecent act and JR was under 12 years and WC had JR under his care.

Count 8. On a date unknown between 14 February 2003 and 15 February 2004 at Tinana WC procured JR, a child under 16 to commit an indecent act and JR was under 12 years and WC had JR under his care.

Count 9. That on a date between 14 February 2008 and 15 February 2011 at Maryborough or elsewhere, WC being an adult maintained an unlawful sexual relationship with JR, a child under 16 years.

Count 10. On a date unknown between 14 February 2008 and 15 February 2009 at Tinana WC unlawfully and indecently dealt with JR, a child under 16 years and WC had JR under his care.

Count 11. On a date unknown between 14 February 2008 and 15 February 2009 at Tinana in the State of Queensland WC raped JR.

Count 12. On a date unknown between 14 February 2010 and 15 February 2011 at Maryborough WC without legitimate reason unlawfully exposed JR, a child under 16 years to an indecent film and WC had JR under his care.

Count 13. On a date unknown between 14 February 2010 and 15 February 2011 at Maryborough WC unlawfully and indecently dealt with JR, a child under 16 and WC had JR under his care.

Count 14. That on a date unknown between 14 February 2010 and 15 February 2011 at Maryborough WC raped JR.

Count 15. That on a date unknown between 1 June 2012 and 21 August 2012 at Maryborough WC raped JR.

Evidence

3. [3]
   The depositions in this matter have been tendered as Exhibit 3.

4. [4]
   JR was born on 15 February 1995. She provided a statement to the police on 14 August 2015. JR was in effect WC’s stepdaughter. Her mother KR started dating WC when she was only 12 months old. From the age of 12 months WC was her only father figure.

5. [5]
   She recalls when she was about 5 or 6 they were living at a house in Grosvenor Street Maryborough.

6. [6]
   KR had gone to Bingo or the shop and JR was at home alone. WC told her to come into his bedroom which she did. He told her to pull her pants down. She pulled her pants down and exposed her vagina and WC told her to touch herself. She complied with this request. WC stood there watching her touch her vagina, he pulled his pants down and started playing with his penis (Counts 1 and 2). After this WC told her not to tell anybody and she went back to watching TV.

7. [7]
   The next time something happened she was about 5 or 6. Her brother K was home at the time and was with her in the back yard. She went upstairs to get a drink and WC called out to her from the bedroom. JR walked into the bedroom and saw WC with a vibrator, he told her to take her pants off. She did. She laid down. The defendant turned the vibrator on and held it against her vagina (Count 3). He asked her how it felt and she told him it felt weird. He then put the vibrator away. She then heard K calling her name but WC slammed the door of the bedroom shut and then pulled his pants down (Count 4) a little way so she could see his penis. He then told her to sit up, move to the side of the bed and do what he was doing. He pulled on his penis and then she started to pull on his penis like he had shown her (Count 5). She did this for a little while until he pulled his pants back up.

8. [8]
   They then moved to an address, Sunset Court when she was about 7, but about to have her 8^th birthday.  She recalled an occasion when the defendant obtained a bag of chocolate chips, pulled his pants down to his knees and told her that she had to place the chocolate chips in a line on his penis.  She started doing this and he told her to eat them off his penis.  He then put two chocolate chips on the tip of his penis (Count 7) and told her to put her mouth on the top and suck the chips up which she did.  She told him it tasted gross.  He then pulled his pants up and told her to go back to the lounge room before her mother got home.

9. [9]
   There were about 7 or 8 times she was made to suck his penis.

10. [10]
    The next occasion was at the Sunset Court house. That day the defendant was doing woodwork in a shed in the back yard. She went into the shed where she had seen the defendant with a bong. She recalled telling the defendant the shed smelt funny. The defendant started playing with his private area over the top of his clothes (Count 8). He then undid his zipper and exposed his penis. He then asked for her hand and he guided it on top of the penis up and down (Count 9). Ultimately he ejaculated.

11. [11]
    After this the defendant told her to give him “hand jobs” three days a week, this happened in the home and there was always ejaculation. This went on for about a year.

12. [12]
    After this the complainant’s mother and the defendant separated and he moved out of the house and moved in with his sister. Her mother and WC went through court procedures and she didn’t see her mother again until she was about 16 years of age.

13. [13]
    There was a long period of time when no incidents occurred because she was living with the defendant’s family and friends and they were never alone together.

14. [14]
    The defendant and her two brothers moved into a house on Ward Street when she was 13. She never actually slept in her bedroom unless the defendant had people over because she was made to sleep in the defendant’s room every night. She recalled on the first occasion she was asked to sleep in his bed and he reached over, put his hand down her pants, started playing with her vagina under her clothes which went on for a while and whilst he was playing with it he asked her for a “head job”. She did what the defendant told her to do by sucking on his penis. This would happen every night for a year until the end of Grade 9 when they moved again. The defendant would ejaculate every time. There was also a babysitter JO who would look after them, she was 16 years of age and when she was over the defendant would completely ignore the complainant and have JO in his bed. There was another babysitter SO who was 15 who also slept in his bed when she babysat them.

15. [15]
    The next house they moved to was in Rocky Street. The defendant would not allow her to have a phone and she would get in lots of trouble if he found her talking to any boys. When she was 15 years of age at Rocky Street the first occasion of penetration occurred. She recalls there was a “40 hour famine”. A few days earlier the defendant made her watch pornography on his laptop. A couple of days after this he asked her to give a “head job”, she did this and he pulled out a tube of lube and told her they were going to have sex. He held her wrists down and had sex with her and ejaculated into his hand.

16. [16]
    She noticed blood on her pants afterwards.

17. [17]
    From that time on the defendant would have sex with her every night by pinning her down by her wrists and every night he would ejaculate into his hands. He did not wear any protection and she did not have any contraception.

18. [18]
    At about the age of 16½ she got her period. Shortly after this was the first time that the defendant ejaculated inside her. He would not have sex with her when she was menstruating and would make her give him oral sex instead. Ultimately when she was 17 she missed her period and fell pregnant. Despite the pregnancy the defendant continued to have sex with her every night.

19. [19]
    The baby was born on 5^th April 2013. It was only after the baby was about 4 months she got the courage to leave the defendant and moved to a friend’s house. 

20. [20]
    She went and saw lawyers and there was a custody dispute between her and the defendant.

21. [21]
    It is obvious from the above that the complainant alleges serious sexual offending by the defendant upon her over many years.

22. [22]
    The defendant participated in a record of interview on 25 August 2015. In the record of interview he denied the allegations of indecent treatment and rape. He told the police he was the step-father of the complainant and most people knew him to be her father. He made admissions to being the father of the complainant’s child and alleged that the sexual relationship between them commenced when she was 17 years old. He said the complainant and he planned to have a baby together and conducted research on how to conceive a girl and they did not tell anyone about the pregnancy until after she left him. He said the complainant left him because he caught her cheating on him.

23. [23]
    KR has provided a statement dated 24 September 2015. KR is the complainant’s mother. She confirms that at the Grosvenor Street house the defendant bought her a vibrator. She also confirms that at the Sunset Court house the complainant would often go to the shed and help the defendant with woodwork. She also recalls that when the complainant was 15 and about to have her 16^th birthday the defendant wanted to buy her a vibrator for her birthday so she didn’t sleep with boys.  She confirms the complainant had the baby on 5^th April 2013. 

24. [24]
    RR, the complainant’s aunty has given a statement dated 23 August 2015. She confirms visiting the Ward Street house and noticing that the complainant had a bedroom directly attached to the defendant’s. She asked the defendant why the complainant was not allowed to shut her bedroom door and he told her because she could not be trusted. She also recalled a time when the complainant was 12 years of age and the defendant told her that the complainant handled all of the money and had possession of all of the Medicare and health care cards for the family and that the complainant told her that “Dad said that I have to do all the shopping and bills”.

Defendant’s submissions

25. [25]
    The defendant submits that this is a case where a no jury order should be made. It is submitted that the defence case is that at the time of the first sexual interactions between the complainant and the defendant, the defendant and the complainant were persons who were lawfully entitled to be married and as a result no offence has been committed^[1]. 

26. [26]
    It is submitted in this case it will be impossible to quarantine the lawful conduct of the defendant from his immoral conduct. The evidence will demonstrate the defendant cared for the complainant as an infant but nevertheless commenced a sexual relationship with her when she was 17 years of age. It is submitted there is the potential for particular prejudice by way of misuse of such highly prejudicial evidence which is unlikely to be cured by judicial direction. It is submitted no directions of a trial judge would be adequate to quarantine this immoral conduct from the alleged criminal conduct.

Crown submissions

27. [27]
    The crown submits that the views of the defendant are relevant but not determinative on such an application. It submits that the jury will follow directions given by the trial judge to exclude prejudice from their consideration of the matter. It is submitted that indecency is a jury question. The crown case is that the complainant was groomed by the defendant from a young age and the jury will need to consider issues of consent on the rape counts in that light.

Relevant law

28. [28]
    Sections 614 and 615 of the Criminal Code provide:

“614 Application for order

3. (1)
   If an accused person is committed for trial on a charge of an offence or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (no jury order) that the accused person be tried by a judge sitting without a jury.

3. (2)
   The application must be made under section 590AA before the trial begins.

3. (3)
   If the identity of the trial judge is known to the parties when the application is decided, a no jury order may be made only if the court is satisfied there are special reasons for making it.

3. (4)
   Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.

3. (5)
   The court may inform itself in any way it considers appropriate in relation to the application.

3. (6)
   For subsection (2), the trial begins when the jury panel attends before the court.

615 Making a no jury order

3. (1)
   The court may make a no jury order if it considers it is in the interests of justice to do so.

3. (2)
   However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.

3. (3)
   If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.

3. (4)
   Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply—

1. (a)
   the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;

2. (b)
   there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

3. (c)
   there has been significant pre-trial publicity that may affect jury deliberations.

3. (5)
   Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”

29. [29]
    As can be seen the test prescribed in s 615(1) of the Code is “the court may make a no jury order if it considers it is in the interest of justice to do so”.

30. [30]
    In R v Fardon^[2] Muir JA observed:

“[44] The overriding consideration in the exercise of a discretion under s 615 is whether it is in the interests of justice to make the order. And, as Deane J said in Hinch v Attorney-General (Vic):

‘The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.’

[45] Section 615 provides, in the appropriate case, a useful mechanism by which the Court can avoid the possibility of an unfair trial.”

31. [31]
    Chesterman JA at [74] stated:

“ … the phrase ‘the interests of justice’ is so general and, indeed, abstract, that it takes on meaning only by a consideration of the particular facts relevant to an application for a no jury order.”

He further stated at [81]:

“… trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.

32. [32]
    The approach of Chesterman JA was adopted in R v Kissier.^[3]

33. [33]
    In R v Belghar^[4] the following was said in the New South Wales Court of Criminal Appeal:

“The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice (Evidence Act 1995s 144), is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial.”

Disposition

34. [34]
    In my view none of the matters mentioned in s 615(4) are engaged. That is not the end of the matter though because the basis of such an order is not limited by those sub-paragraphs. It is not suggested there is any pre-trial publicity such that a fair trial might not be had^[5] or that there is irrelevant evidence which cannot be excised^[6] or that complex expert evidence is involved.^[7] Of course by referring to these examples I am not suggesting that the categories are closed.

35. [35]
    In this case though it seems to me that the issue of when the relationship commenced is classically a jury issue. No doubt there will be an application of objective community standards concerning indecency and obscenity^[8] although I accept this issue would not loom large. The real issue is whether the events as alleged by the complainant occurred. 

36. [36]
    Juries are directed by trial judges to approach their duties dispassionately, ignoring public opinion and to only base their verdicts on evidence led in the courtroom. Prejudice and sympathy is to be excluded from consideration.^[9]

37. [37]
    It may be determined that juries faithfully follow directions given by trial judges.^[10]

38. [38]
    It is true that there is prejudicial evidence against the defendant, but that is the nature of the allegations against him. The evidence of alleged sexual offending commencing when the complainant was very young is at least relevant to whether or not she consented to sexual intercourse after she was 16.

39. [39]
    I do not consider this is a case like the ones relied on by defence counsel where it would be impossible for the jury to ignore inadmissible evidence.^[11] The prejudicial evidence in this case is admissible.

40. [40]
    In my opinion, having considered all matters it has not been established that it is in the interests of justice for a no jury order to be made and I dismiss the application.