R v Abraham - [2021] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Abraham [2021] QDC 65

PARTIES:

THE QUEEN

v
ABRAHAM, WM

FILE NO:
Indictment No. 427 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial (Judge Alone)

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

27 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23 March 2021

JUDGE:

Kent QC, DCJ

VERDICT:

Not guilty on all counts.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – EVIDENCE – Where the defendant is charged with three counts of indecent treatment of a child under 16, under care – Where the defendant pleaded not guilty – Where the trial was a judge alone trial – Where there was evidence of distressed condition – Where the defendant gave evidence – Whether the prosecution case met the threshold of beyond reasonable doubt – Where the finding was not guilty on all counts

LEGISLATION:

Criminal Code s 614, s 615B, s 615C

Evidence Act 1977, s4A

CASES:

Grubisic v Western Australia [2011] 41 WAR 52, cited

R v Allen (a pseudonym) [2020] QCA 233, cited

R v Iongi [2021] QCA 43, cited

R v Markuleski (2001) 52 NSWLR 82, cited

R v Pentland [2020] QSC 231, cited

R v Roissetter [1984] 1 Qd R 477, cited

R v Rutherford [2004] QCA 481, cited

R v Sailor [1994] 2 Qd R 342, cited

R v Waye (1984) 14 A Crim R 39, cited

RBA [2018] QCA 338, cited

COUNSEL:
G Wong for the Crown

C Reid for the Defendant

SOLICITORS:
Office of the Director of Public Prosecutions (Queensland) for the Crown

Burchill & Horsey for the Defendant

Introduction

The defendant is charged with three counts in identical terms, each being that on 12 July 2019 at Brendale in the State of Queensland he unlawfully and indecently dealt with KH, a child under 16 years and that he had KH under his care for the time being. The three counts are alleged to have occurred on the same occasion, and indeed in the same physical transaction.
An order was made pursuant to ss 614 and 615 of the Criminal Code that the defendant be tried by a judge sitting without a jury. Section 615B requires me to apply so far as practicable the same principles of law and procedure as if there were a jury. Section 615C (3) requires that I record:
(a)the principles of law that I have applied; and
(b)the findings of fact on which I have relied.
The Elements of the Offence
Before the defendant can be found guilty of the charges, I must be satisfied beyond reasonable doubt of the following elements:
(a)That the defendant dealt with the complainant. This includes any act which, done without consent, would constitute an assault as defined by the Criminal Code. It includes a touching of the child. In this case what is alleged is a touching by the defendant of the child’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abraham

Details

AGLC: R v Abraham [2021] QDC 65
Case: [2021] QDC 65
Decision Date: 27 April 2021

CaseChat Overview and Summary

The case of R v Abraham involved the defendant who was charged with three counts of indecent treatment of a child under 16 years of age who was under their care. The defendant pleaded not guilty and the matter proceeded to a trial before a judge alone. The crux of the case hinged on the credibility of the complainant's evidence and whether the prosecution had discharged the burden of proving the allegations beyond reasonable doubt.

The court was tasked with determining if the evidence provided by the prosecution was sufficient to meet the threshold of beyond reasonable doubt. The complainant testified to the incidents of indecent treatment and there was evidence of the complainant being in a distressed condition shortly after the alleged events, which was corroborated by other witnesses. The defendant also gave evidence denying the allegations. The court had to weigh the complainant's testimony against the defendant's denials and consider whether the overall evidence substantiated the claims to the required legal standard.

In reaching its decision, the court acknowledged the complainant's distressed condition as corroborative of her account, but ultimately found that the evidence, while strong in probability, did not meet the necessary standard of proof beyond reasonable doubt. The court concluded that the prosecution had not proven the case to the requisite level, leading to the verdict of not guilty on all counts.

The court did not deem it necessary to determine whether or not the complainant was in the defendant's care, given the outcome on the charges. The final orders of the court were that the defendant was found not guilty on all counts of indecent treatment of a child under 16 years of age.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I can act, however, on the uncontradicted evidence that the complainant was upset, shortly after the alleged offence, and for no other apparent reason than the alleged offence. Further it is difficult to imagine a reason for the complainant to feign such distress and no such competing explanation (either of feigning, or another explanation for genuine distress) is advanced. In all the circumstances the evidence is, as the prosecution submits, corroborative of the complainant’s evidence.Conclusion My conclusion is that although the evidence of distressed condition does further strengthen the prosecution case, the evidence as a whole (including the defendant’s sworn denials) does not prove the case to the required standard. At the end of the day my assessment is that the prosecution has proven the case – that is, that the events happened essentially as the complainant described – to a standard of probability, perhaps even strong probability; but it falls short of the required standard of beyond reasonable doubt. Accordingly the verdicts are not guilty. In the circumstances it is not necessary for me to reach a conclusion as to whether or not the complainant was in the defendant’s care.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Abraham [2021] QDC 65
PARTIES:	THE QUEEN v ABRAHAM, WM
FILE NO:	Indictment No. 427 of 2020
DIVISION:	Trial Division
PROCEEDING:	Trial (Judge Alone)
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	27 April 2021
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23 March 2021
JUDGE:	Kent QC, DCJ
VERDICT:	Not guilty on all counts.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – EVIDENCE – Where the defendant is charged with three counts of indecent treatment of a child under 16, under care – Where the defendant pleaded not guilty – Where the trial was a judge alone trial – Where there was evidence of distressed condition – Where the defendant gave evidence – Whether the prosecution case met the threshold of beyond reasonable doubt – Where the finding was not guilty on all counts
LEGISLATION:	Criminal Code s 614, s 615B, s 615C Evidence Act 1977, s4A
CASES:	Grubisic v Western Australia [2011] 41 WAR 52, cited R v Allen (a pseudonym) [2020] QCA 233, cited R v Iongi [2021] QCA 43, cited R v Markuleski (2001) 52 NSWLR 82, cited R v Pentland [2020] QSC 231, cited R v Roissetter [1984] 1 Qd R 477, cited R v Rutherford [2004] QCA 481, cited R v Sailor [1994] 2 Qd R 342, cited R v Waye (1984) 14 A Crim R 39, cited RBA [2018] QCA 338, cited
COUNSEL:	G Wong for the Crown C Reid for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for the Crown Burchill & Horsey for the Defendant