R v Bna
[2018] QDC 202
•10 October 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
R v BNA [2018] QDC 202
PARTIES:
R
v
BNA (defendant)
FILE NO/S:
1742/18
DIVISION:
Criminal
PROCEEDING:
Trial – Judge-Alone
ORIGINATING COURT:
District Court
DELIVERED ON:
10 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
24 September – 27 September 2018
JUDGE:
Devereaux SC DCJ
VERDICT:
Guilty of each count.
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – trial by judge sitting without a jury – where the accused was charged with three counts of rape and one count of indecent treatment of a child under 16 – whether Crown has established proof beyond reasonable doubt.
Criminal Code 1899 (Qld), ss 210(1)(a)(2), 349(1)(2)(a), 349(1)(2)(b).
COUNSEL:
A Braithwaite for the Crown
J Crawford for the Defendant
SOLICITORS:
Office of the Director of Public Prosecutions (Qld)
Legal Aid Queensland for the defendant
The accused is charged as follows:
1. That on or about the third day of April, 2017 at [town] in the State of Queensland, he raped the complainant.
2. That on or about the third day of April, 2017 at [town] in the State of Queensland, he raped the complainant.
3. That on or about the third day of April, 2017 at [town] in the State of Queensland, he unlawfully and indecently dealt with the complainant, a child under 16 years.
4. That on or about the fourth day of April, 2017 at [town] in the State of Queensland, he raped the complainant.
He has pleaded Not Guilty. On 21 May 2018 Burnett DCJ made a no jury order. In the result, I am to determine, on the evidence, whether the accused is guilty or not guilty.
Witnesses, Exhibits and Admissions
The evidence comprised testimony, exhibits and admissions. The evidence of the complainant comprised a police interview on 6 April 2017 adduced in evidence under s. 93A of the Evidence Act 1977 and pre-recorded evidence taken on 1 June 2018 before Burnett DCJ. Upon the defendant’s application, not opposed by the prosecution, I ordered, under s. 21AN of the Evidence Act, that the child attend at the proceeding to give further evidence. That evidence was taken by video link and recorded, pursuant to s. 21AQ of the Evidence Act.
The accused and his then pregnant partner, KR, travelled to the town by bus from somewhere in New South Wales. They were met by WS. This was probably on Friday 31 March 2017. The accused and WS had met on Facebook. On Sunday, 2 April 2017, WS took the accused and KR and introduced them to SP and his partner, AK. AK’s younger sister, the complainant, was at their house. She was staying with them – the school holidays had just begun. So the accused met the complainant on 2 April 2017. KR left the town at about 5pm on Monday 3 April 2017. The Crown case is that the offences occurred between Monday 3 April and Wednesday 5 April 2017 at the home of SP and AK.
On Thursday 6 April 2017, police came to the house to arrest the accused pursuant to a warrant. The police officers included Tanya Rewha and Natalie Timar. After the accused’s arrest, the complainant child made a disclosure to Rewha, then to her sister. The complainant was taken to her parents, who also lived at the town. She made a disclosure to her mother, AC. The other witnesses were police officers who interviewed the complainant, interviewed the defendant and took photographs at the house where the complainant was staying with her sister and SP.
Exhibits 1-7 and 11-13 were photographs of the lounge room, relevant bedrooms and clothing at the house. The other exhibits were a police audio interview with the accused, the s. 93A interview with the complainant (Exhibit 8) and the downloaded record of a mobile phone taken from the complainant (Exhibit 9).
When considering the complainant’s pre-recorded evidence, I have in mind the provisions of Evidence Act s. 21AW.[1]
[1]1-39.30-45.
The prosecution and defence made joint admissions. The first 6 were:
1. At the time of the alleged conduct subject to counts 1-4 on the indictment (3 April 2017 – 4 April 2017), the complainant was 14 years of age;
2. The defendant, at that time, was aware the complainant was 14 years of age;
3. The defendant, at that time, was infected with active syphilis;
4. After the conduct alleged in the indictment the complainant tested negative for syphilis;
5. The transmission rate of syphilis, based on a number of studies, is approximately 40% - 60%;
6. Police first attended [the address at the town] at 11.15am on 6 April 2018.
At the start of the trial, the defendant sought an adjournment because of the unavailability of Officer Rewha. The application was not pressed after further discussions between counsel and upon the following admissions being made concerning the officer:
7. After [the accused] was placed in the Police vehicle Officer Rewha spoke to a group of people who had been present at the house when [the accused] was arrested. That conversation took place in the front yard area. The people present for that conversation were the complainant, [and others].
8. She asked if [the accused] had hurt or touched anyone (in the group) in any way.
9. She took [the complainant] aside, away from the group.
10. She asked questions of [the complainant], as follows:
(a) Has [the accused] touched you in any way? (Answer – he had)
(b) Where did he touch you? (Complainant indicated her hands around her breast area)
(c) Did he touch your private parts? (Answer yes)
11. The interactions with the group and the separate conversation with the complainant were not digitally recorded in any way.
I was told the warrant for the arrest of the accused related to his having failed to report pursuant to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 at Logan and that the police learnt of his presence at the town.[2] The prosecution did not rely on the assertion that the defendant was a reportable offender in breach of the reporting conditions in proof of the charges. I proceed on the basis that the reasons, such as I have learnt of them, for the police officers’ attending the house to arrest the accused are irrelevant and not to be taken into account when deciding on the evidence whether the accused is guilty or not of any charge. I draw no inference against the accused because of the assertion that he was a reportable offender in breach of the reporting conditions. Similarly, I draw no inference against the accused because, on the evidence of the complainant and her sister, a police officer referred to the accused as a paedophile. The prosecution has not adduced evidence of a relevant propensity.
[2]1-7.20.
The onus is on the prosecution to prove the accused guilty of the charges, beyond reasonable doubt. Before I may convict the accused of any charge, I must be satisfied, beyond reasonable doubt, that the prosecution has proven the elements of the charge.
The accused did not give or call evidence, as was his right. He bears no onus of proof and I do not consider his election not to call or give evidence when deciding whether the prosecution has proved its case against him.
The Charges
The charges of rape, counts 1, 2 and 4, require proof that the accused penetrated the complainant in one of a number of ways without her consent.[3] Count 3, indecent treatment, requires proof that the accused dealt with the complainant unlawfully and indecently. “Indecent”, having its ordinary everyday meaning, is what the community regards as indecent.
[3]Criminal Code s. 349; Consent means “consent freely and voluntarily given by a person with the cognitive capacity to give consent”: CriminalCode s. 348.
Count 1, as particularised, requires proof that on the evening of Monday 3 April 2017 at the home of SP and the complainant’s sister, the defendant inserted his penis into the complainant’s vagina without her consent while the two of them were on a couch in the lounge room.
Count 2, as particularised, requires proof that on the same occasion as count 1, the accused inserted his finger or fingers into the complainant’s vagina without her consent.
Count 3, as particularised, requires proof that on the same occasion the accused “grabbed the complainant’s hand and put it on his penis”, that the act was unlawful and was indecent.[4]
[4]It was admitted that the complainant was aged under 16 years.
Count 4, as particularised, requires proof that on about Tuesday 4 April 2017 while lying next to the complainant on a mattress in her sister’s bedroom, the accused inserted a finger or fingers into her vagina without her consent.
It was put to the complainant that the accused did not do the acts alleged. Defence counsel at trial expressly did not submit it was open to convict of an alternative count on the basis that penetration occurred in circumstances giving rise to a reasonable doubt about whether the complainant did not consent or that the accused acted under an honest and reasonable but mistaken belief she was consenting. Upon my review of all of the evidence I conclude that mistake of fact is not raised. The primary issue in each case is, therefore, whether the penetration or dealing occurred. I must nonetheless consider whether the prosecution has proven all elements of the charges beyond reasonable doubt.
The Complainant’s Evidence
The complainant told police that on the Monday night she was at the home of SP and her sister, watching a film called The Conjuring 2, sitting on a large couch in the lounge room. The accused was on the couch and he put his legs on her. SP was on the other couch, which is seen in the photographs as a smaller wooden framed couch near the large one. They had a blanket over their legs. The accused tried to put his legs between hers. She said she just watched the film, “I didn’t know what to do”.[5] The accused was trying to hold her hand. SP fell asleep on the other couch.
[5]Transcript of Ex 8 at 8.18.
The complainant asked the accused, “Where is this going?” This she did by writing on a phone and passing it to him. This is how the two communicated while on the couch.[6]
[6]Transcript of preliminary hearing at 1-28-29.
He told her he really liked her, “he wanted to do it with me and stuff and I said, I said I’m on my period, and he goes … we can just go for a shower”. She told him that was disgusting. She kept telling him she did not want to do it. She said, “What if I fall pregnant?” and spoke of how her parents would respond.
He kept telling her to lie beside him. He kept trying to push her down beside him. Despite her resistance he “pushed me over and then he tried pullin’ down my pants and then he heard a noise so he quickly jumped up”.[7] Then he “ended up just pullin’ my pants to the side and stickin’ it in to me”.[8]
[7]Transcript of Ex 8 at 9.20 (as transcribed).
[8]Transcript of Ex 8 at 9.25 (as transcribed).
The complainant told police the accused was fingering her and she told him to stop. He was trying to kiss her but she turned her head. The other conduct included his rubbing her leg above her knee up to about an inch from her vagina.
Later in the interview, upon further questioning, all of these details were repeated. The complainant added the details that after her pants had been pulled down she pulled them up; she kept telling the accused to stop but he pulled her pants across. He put his penis into her vagina and asked if it hurt. She told the police officer it did hurt. The complainant explained that the communication between them was written on phones.[9]
[9]And see Transcript of preliminary hearing at 1-28 – 29.
In response to further questioning, the complainant said the penetration was interrupted when the accused heard a noise and jumped up and then he told her to turn on her side, so she was facing the back of the couch and “he tried to have sex with me on the side, but then he, like, heard another noise and jumped up”.[10]
[10]Transcript of Ex 8 at 18.55.
The complainant was not asked to say how long the accused penetrated her with his penis but I infer it was only for a short period, given these descriptions.
After being on her side, the complainant told police, she sat up, “looking at my phone ‘cause I didn’t know what to do”. The accused then pulled her pants to the side again and put his fingers in her vagina.[11]
[11]Transcript of Ex 8 at 19.40.
The episode ended with her going to bed. Before that, however, she said, “he kept trying to make me touch his penis”.[12] She said he told her she “made him have a hard” and that his girlfriend had not done that for weeks. She said, “I was just sitting there and he kept grabbing my hand and puttin’ it on … his penis”.[13]
[12]Transcript of Ex 8 at 20.50.
[13]Transcript of Ex 8 at 21.35.
Under cross-examination at the preliminary hearing, the complainant confirmed the essence of her account as given to police. She confirmed SP was asleep on the couch very nearby while the accused committed the sexual acts. He woke and went to bed at about the same time AK got up and went to the toilet. The complainant said the first sexual event was the finger inside her vagina.[14] She confirmed the accused tried to pull her down onto the couch with him but at first did not succeed. He tried to kiss her. He put his penis into her vagina by pulling her down onto the couch and then he got on top of her.[15]
[14]Transcript of preliminary hearing at 1-26.
[15]Transcript of preliminary hearing at 1-27.40.
As to count 3, under cross-examination the complainant confirmed the accused forced her hand onto his penis once, although he tried to have her touch him three or four times.[16]
[16]Transcript of preliminary hearing at 1-35.
The complainant’s evidence, if accepted, proves the accused did the acts of penetration and dealing. It also proves the acts of the penetration were done without her consent.
The complainant told police she did not want to do it; she told the accused to stop early in the sequence of events, “like when he was … only just trying”; she told him she did not want to do it “because what if I fall pregnant”, because she was on her period and because of the age difference. She did not feel empowered to stop him – “I felt like, I dunno, there was just something about him … I just had a tummy feeling that there was something about him”.[17]
[17]Transcript of Ex 8 at 36.30; 37.40 – 38.20.
The complainant explained during cross-examination that she did not try to stop him putting his finger inside her “because he was all about fighting and aggressive”.[18] She kept telling him to stop.[19]
[18]Transcript of preliminary hearing at 1-32.10. The complainant’s assertion about the accused person’s character is relevant only to her response to the incidents she alleged. It is not led against the accused to show he is of bad character and I do not receive it as such. Indeed, defence counsel at the preliminary hearing dealt effectively with the complainant’s appreciation of the accused.
[19]Transcript of preliminary hearing at 1-32.40.
The next evening, Tuesday 4 April 2017, the accused was at the house again. The group went to WS’ place and returned after a dispute between WS and the accused. The accused and SP played a game on the Xbox machine. The complainant recalled to police that she and AK went to bed. She slept on a mattress on the floor next to the bed in the room of her sister and SP. This was common evidence and the mattress features in the photographs.
As to count 4, the complainant told the police the accused came into the room and lay down beside her, although he was supposed to sleep in the lounge room. She could not say when but said she woke to find him there when she felt somebody beside her. He put his legs over her during the night. Asked, “Anything else?” she said “And that night he tried to like, finger me again”.[20] She thought her sister and SP did not know the accused was in the room until the morning. Asked to tell more of this event, the complainant told the police officer she was lying, her arm over her face and “then yeah, somehow went and he just, yeah fingered me and, like I was just tryna go to sleep and stuff and then I’d like try to move his hand”.[21] Asked the leading question, “When you say fingered you mean his finger’s in your vagina?” she said, “Yes”.
[20]Transcript of Ex 8 at 27.5.
[21]Transcript of Ex 8 at 27 – as transcribed.
During cross-examination the complainant rejected the suggestion that the accused did not put his finger into her vagina but only touched her by putting an arm over her body.[22]
[22]Transcript of preliminary hearing at 1-48.1-15.
Other Evidence
- Complaint Evidence
As to the complainant’s credibility and reliability, the prosecution relies on evidence of statements by her to others – Officer Rewha, the complainant’s sister and her mother. These disclosures were all made on 6 April 2017 in unusual circumstances. The complainant was at her sister’s house when police came to arrest the accused. As admitted, this occurred at about 11.15am. The effect of all the evidence is that this was a dramatic event. AK said she and others were getting ready to go out when,
“I looked out my window and I just seen all these police cars parked out the front of my house. And I started yelling out to my partner. I was, like, “Come here, have a look, what’s going on?” And then I recall seeing Natalie and Tanya running towards my front door, screaming, “Open the door.””[23]
[23]2-69.40 “Natalie” and “Tanya” were officers Timar and Rewha.
The accused apparently attempted to avoid arrest but was caught at the back door.
The disclosure to Officer Rewha is included in admitted fact 10. The complainant’s account of that discussion went further. She told police in the interview that “Tanya” asked her, “Did he stick it in you?” and that she replied, “Yeah.”[24]
[24]Transcript of Exhibit 8 at 35.40
AK’s evidence was that the complainant said to her, “He forced himself on me.”[25] She explained the circumstances: “the only conversation I recall having to [the complainant] was when Natalie and Tanya had told her to tell me what they’d just told her and that was pretty much what I just said then.”[26] At the time the complainant was hysterical.
[25]2-70.15.
[26]2-70.40.
The complainant was then taken to her mother, AC. As she tells it, “Well, first off, Tanya and Natalie pulled up. [The complainant] and AK was in the car”.[27] She entered the police car and the police told her what happened to her daughter. She then asked the complainant what happened. Her evidence continued:
“She told me that she was sitting in the lounge room, watching a movie with SP and [the accused]. SP got up and walked into his room. She thought he was coming back, but, when she realised he didn’t, she got up and went to go to bed. [The accused] grabbed her – started touching her. She was in shock. You know, she didn’t believe what was going on. So she went to walk. He’s pushed her onto the chair.
Sorry, say that again – went to - - -?---Well, she – well, stood back, she told me. Then he pushed her onto the chair and, yeah, started touching her. She told him that she was bleeding, and then he forced herself onto her, and she kept saying no, and then she just broke down crying to me.”[28]
[27]2-55.15.
[28]2-55.46 – 2-56.9.
The complainant’s statements as recalled by the witnesses are not entirely consistent with her account to police and in court. The primary differences are the apparent statements that SP had left the lounge room and that the complainant was pushed onto the couch from a standing position, and the absence of complaint of digital penetration. Taking into account the circumstances in which the complainant was asked to disclose what had happened and the circumstances in which the witnesses received the statements, the inconsistencies do not undermine the complainant’s reliability. She did not make any statement inconsistent with the allegation of penile rape or contradictory to the allegations of digital rape and indecent treatment. These details emerged later the same day during the police interview.
- The Complainant’s Sister
The complainant’s sister, AK, gave certain evidence, as to matters not in contest, consistent with the complainant’s evidence, such as who was in her home on the Monday evening. She recalled sitting on the smaller couch watching the film, SP next to her, the accused near him but sitting on the larger couch and her sister also on that couch. She went to bed at about 10 or 11pm and SP stayed up. She did not remember getting up from bed to go to the toilet. She woke when he came to bed. He told her the others were going to finish watching the movie. The accused was not there in the morning.
AK also gave evidence that on the Tuesday there was a dispute between the accused and WS. After that, the accused was at her home that evening, drinking and playing on the Xbox with SP. She and the complainant went to bed. SP came into the bedroom and turned the television on. They invited the accused into the room to watch television.[29] The following morning the accused was on the couch.[30] However, during cross-examination she said she thought the accused was not on the couch when she woke up – she saw him first while walking to town.[31]
- SP
[29]2-78.45.
[30]2-69.10.
[31]2-79.10.
SP gave evidence of watching the film in the lounge room, his partner (the complainant’s sister) going to bed and his going to bed “because I was started, like – getting, like – dozed off and that.” He recalled the accused and the complainant both using their phones.
The next night, SP and the accused played Xbox and drank wine. He also spoke of the visit to WS’ house and the dispute between WS and the accused. SP said, of the accused and himself, back at his house, “I know we were still drinking wine. We drunk wine for a couple of days … in afternoons and night.”[32] He and the accused then went out to collect ‘dumpers’ – used cigarettes – and stayed outside upon their return drinking wine and having cigarettes. However, in cross-examination, reminded of his police statement, SP allowed that this described the Wednesday night.
[32]2-87.20.
SP did not see the accused on the mattress with the complainant.
- Police Witnesses
Sergeant Hobbs spoke to the accused and made an audio recording of it at the Longreach watch house on 6 April 2017. The prosecution submits the accused lied when he said he did not know the complainant’s age. In my opinion, if it was a lie, it only goes to the accused’s credit. In any case, he accepted he knew she was 14 years old when that was suggested to him. I place no significance on the initial denial. The accused was in the watch house, not in a formal interview setting, had just been taxed with the allegation of rape and sounded agitated at the time.
The accused denied any offending but confirmed he lay on the mattress with the complainant and said “they”, SP and AK, saw him with his arm over the complainant, which was accidental in his sleep. This is the essential material relied on by the prosecution contained in the interview. It confirms the complainant’s evidence of the opportunity the accused had to commit count 4.
Scrutinising the Complainant’s Evidence
In respect of all charges, the prosecution case rests all but wholly on the evidence of the complainant child. This has several consequences. My assessment of her credibility and reliability is relevant to the decision in all counts. But each count is to be decided upon the evidence particularly relevant to it. I consider the evidence relating to each charge separately. Although counts one to three allegedly arise out of one occasion and count 4 is said to have occurred between the same parties in the same house the next day, the particular evidence led in support of each count is different and so the verdicts might be different. Also, the elements of count 3 are different from those of the other counts and so, again, the verdicts need not be the same.
A reasonable doubt about the complainant’s evidence with respect to one count must be taken into account when considering her evidence with respect to the others.
A number of features of this case must be considered when assessing the reliability and credibility of the complainant’s evidence. They include:
· The suggestion, and evidence of KR, that the complainant flirted with the accused.
· A text message and phone call received by KR on the Monday after she had left [the town].
· A phone call from the accused’s mother and KR on Wednesday;
· The complainant’s continued company with the accused after the alleged offences.
· The circumstances of the arrest and complaint – effectively a raid on the house; police assertion that accused was a paedophile; leading questions from police.
· The records of the complainant’s phone and missing phone material.
· Absence of scientific evidence.
When the complainant presented to give further evidence at trial, it was put to her that she flirted with the accused on the Sunday they met, on the basis that the two of them continued a stone-throwing game longer than the others involved. Counsel explained the word, flirting, as meaning “you were sort of coming on to him. Letting him know that you were attracted to him”.[33] It was suggested that over the following days the complainant “would frequently sit in front of him with your legs crossed or open.”[34] WS gave evidence that he noticed these behaviours and that the accused thought the complainant was flirting.[35]
[33]2-8.15.
[34]2-8.20.
[35]2-105
The complainant rejected the suggestion she ever flirted with the accused. The complainant’s sister also rejected the suggestions, adding, “[the complainant] is a friendly person. So she won’t judge someone before she knows them. So she considers everyone as a friend until they put off a threat”.[36]
[36]2-71.45 – 2-72.20.
It was also put to the complainant that, while the group of people were in WS’ car on the Monday evening after KR had left the town but before the events leading to the charges, the accused was communicating with her using a phone owned by WS. The complainant agreed the accused was texting KR, using one of WS’ phones. The complainant accepted counsel’s suggestion that the accused was annoyed because KR would not agree to come back.
Specifically, it was put that the complainant, at the request of the accused, to make KR jealous and induce her to return, wrote a text message, I’ve just fucked [the accused]. We are together now. The complainant did not agree she had done so.
KR gave evidence that she received such a message but there was no evidence the complainant sent it.
When counsel put the scenario to the complainant’s sister, AK, and SP, who were also in the car at the time, both remarked that this was the first they had heard of the suggestion.[37]
[37]SP 2-92.10; KA 2-75.5. Also WS does not confirm the suggestion - 2-105.45.
It was also put that the complainant spoke to KR by phone while in the car and said, “I’ve had sex with [the accused]”, and the others in the car were all laughing.[38] The complainant rejected this.
[38]2-10.5.
KR agreed, in cross-examination, that she had received such a call but, again, there was no evidence that the complainant made such a call. KR did not accept the proposition that the accused later told her he had set up the text and call to make her jealous. Her evidence was that he told her someone had stolen his phone.[39]
[39]2-21.
AK, asked whether she had had anything to do with this phone call, said,
“Nope, but I do recall [the accused] had gone back to WS’, and there was a party going on with a bunch of young girls there and [the accused] had rocked back up at my place wearing a pair of some girl’s – young – shorts or a young girl’s pair of shorts, footy shorts.”[40]
[40]2-75.10.
Accepting KR’s evidence that she received a text message and phone call as she described, there is not, as I have said, evidence that the complainant took part in the activity. There is only her evidence that she did not and this is consistent with the responses of AK and SP. I conclude that the introduction of this material does not undermine the complainant’s reliability and credibility.
The complainant received a phone call from KR on Wednesday, 5 April 2017. During the call, she also spoke to someone who said she was the accused’s mother. That person told the complainant not to go anywhere on her own with the accused because he was not very stable. The complainant did not accept the suggestion that the message was, “He’s not trustworthy”. Her understanding was that she was being told, “that he wasn’t in a stabled way”.[41]
[41]As transcribed in Transcript of preliminary hearing 1-23
KR, during her cross-examination, did not accept the suggestion that the mother had told the complainant the accused was a sex offender but confirmed the mother told the complainant the accused was not mentally stable to be around.[42]
[42]2-21
Arguably, this conversation was part of the circumstances which led to the complainant’s disclosures on Thursday 6 April 2017, but no submission was made about its relevance.
Defence counsel points out that the complainant continued to spend time in the accused’s company and that no member of her family noticed any difference in her demeanour. The submission implied is that so behaving is not consistent with a true complaint of rape by the accused and so undermines the complainant’s credibility.
There is nothing persuasive about the family’s observations of the complainant. Her sister, AK, frankly said she was not focussed on the complainant, being pregnant at the time.[43] SP seemed to me to notice very little about others. The contact with her mother involved going to her parents’ home to look after younger children while the mother went to the dentist. When her mother returned, the complainant asked to go back to her sister’s house. Her mother did not say the complainant was perfectly normal. She said,
“She seemed a little distant, but yeah, she didn’t say much. She wasn’t there long. You know, when I got home, she just, you know, had her lunch, and then she headed back out.”[44]
[43]2-79.30
[44]2-57.1-5
The complainant was aged 14 at the time of the relevant events and 15 when giving evidence. She presented as an unsophisticated child. During the police interview and in her evidence she was appropriately responsive – she demonstrated sadness at what had happened consistent with her age and apparent personality, saying, “Like. I had no idea what to do”.[45] She was also affected by a sense that SP “felt he was his only true mate”.[46] She agreed it would have been easy to wake SP[47] and that she could have gone home to her parents.[48] She explained to police that she did not tell anybody because she was scared and thought she would get into trouble.[49]
[45]Transcript of Exhibit 8 at 5.55
[46]Transcript of Exhibit 8 at 5.45
[47]Transcript of preliminary hearing at 1-29.28
[48]Transcript of preliminary hearing at 1-48.25
[49]Transcript of Exhibit 8 at 22 - 23
Taking all of these matters into account, it does not undermine the complainant’s credibility that she continued to stay with her sister even though that involved also seeing the accused, nor that she did not complain until she did.
The arrest of the accused was obviously a dramatic event in the lives of all who were at the house. Once the accused was arrested the occupants, who included some children at the time, were moved out to the front yard. Although no police officer confirmed it, the complainant and her sister heard a police officer tell the group that the accused was a paedophile. AK gave evidence that the police asked whether there were children in the home; whether she had seen anything suspicious; whether the accused had touched them. This led to the complainant’s disclosure, as set out in the admitted facts.[50] As unusual as this setting was for the emergence of a complaint, it does not undermine the complainant’s credibility. In particular, I do not accept the submission that the complainant was likely to have felt, because of the police conduct, that someone in the group needed to tell the police something before people could go about their business.
[50]2-81
Counsel for the accused refers to the evidence of AK that she had not seen the accused asleep on the mattress in her bedroom. That evidence does not undermine the complainant’s account of count 4 because the accused confirmed, in the police interview, an occasion when he was on the mattress, entirely consistently with the complainant’s account.
Exhibit 9 is the downloaded record of the complainant’s phone. The prosecution does not rely on a message, received by the complainant from the accused at 09:51 GMT[51] on 5 April 2017, in which he expresses regret for various matters and says he will leave the next day. I take no notice of that message.
[51]Greenwich mean time - 7:51 pm Queensland.
The phone contained a note the complainant wrote, according to Exhibit 9, on 6 April 2017 at 02:59 GMT – 12:59pm Queensland – which commenced, “So on the 3 of April 2017 I got rapped (sic) and I didn’t eat for like a week maybe even longer and 3 days [a reference to her nephew’s birthday] anyway it is all my fault that I got rapped I should of screamed or something ...”.
Counsel for the accused submits the complainant, under cross-examination, did not appear to understand the “internal impossibility” in the note, written three days after the event. It is submitted the complainant lied in the note about having not eaten for a week because other witnesses said she ate at various times. Those witnesses were her sister and mother. Their evidence was not conclusive. I do not, of course, act on the basis that the complainant did not eat for a week but it does not affect my assessment of her reliability or credibility with respect to the essential facts if she perceived only three days after the event that it had occurred longer ago. The complainant’s answers merely confirm that she was not a sophisticated witness, as does the rest of the note.
The prosecutor does not refer to the note in written submissions. It would seem to me to amount to an admissible statement under s. 93A of the Evidence Act in proof of its contents. The note continues,
“… but I just payed (sic) there and he was touching me then he rapped me which was when I stopped eating and shit but that’s not the point the point is that I didn’t tell anyone I just cepted it to myself [crying emoji] and I know that I shouldn’t of …”.
As the prosecution has not sought to rely on the note in proof of its contents I will not consider it for that purpose. It came into evidence as part of the phone records, Exhibit 9, and was used primarily by the defence to discredit the complainant. As I have said, I do not consider it discredits the complainant. It does give some insight into her character for the purposes of understanding her reaction to the events she describes.
Exhibit 9 contains a curious gap in information. It contains no text messages between 30/03/2017 at 06:50 GMT and 04/04/2017 at 05:33 GMT. The complainant, asked whether she deleted photos or text messages, said she did not usually delete anything from the phone.[52] In written submissions, counsel for the accused complains that further examination could have been conducted.
[52]Transcript of preliminary hearing at 1-41.5
It is unlikely there was no activity during this period but, except that there is no confirmation by the record of the evidence that the complainant and accused used their phones to communicate on the couch during the events of counts 1 to 3, nothing turns on it. No particular communication, which could not now be proven, was suggested to the complainant. The defence was a denial of any sexual activity and the defence expressly did not put in issue the absence of consent. The loss of any communications between the complainant and accused does not inform the fact finding process.
The absence of scientific evidence is the result of decisions made by police and does not necessarily increase or decrease the reliability and credibility of the complainant. She was not medically examined. Detective Sergeant Hobbs considered it, talked to the complainant’s parents and, given the alleged event occurred three days earlier, decided not to have the complainant examined.[53] There was no scientific evidence of, for example, the accused’s fingers to identify menstrual blood. The clothing nominated by the complainant was not examined. It was submitted the shorts seized by police did not match the description given by the complainant. It is unnecessary to decide that but, in my opinion, the photographed clothing did match the description. The absence of scientific evidence does not undermine the complainant’s credibility but it highlights the extent to which the prosecution case relies on the testimony of the complainant and the need to scrutinise it carefully.
[53]2-38.20.
The complainant did not notice anything unusual about the accused’s penis when she touched it. It was erect; the accused was trying to put her hand on it probably three or four times but he managed to have her touch it only once; only her fingers made contact because she pulled away.[54] Given the circumstances (including that the television was on but no lights[55]) and brief nature of the touching, it does not affect my assessment of the complainant’s credibility or reliability that she did not notice active symptoms of syphilis. According to KR, on the Saturday evening when she had sex with the accused, he had spots on his penis like a rash and a cut, which would come and go.[56] On the other hand, WS said he did not notice anything unusual about the accused’s penis when he performed oral sex on him after the accused returned to his house late on the Monday night or early Tuesday morning.[57]
[54]Transcript of preliminary hearing at 1-35.
[55]Transcript of preliminary hearing at 1-33.35.
[56]2-18 – 19.
[57]2-106.
Nor is my view of the complainant’s evidence affected by the evidence of WS that when performing oral sex on the accused he did not taste blood. He said the accused’s penis was clean.[58] It is submitted for the accused that if he had in fact penetrated the complainant’s vagina with his penis and she was menstruating during that penetration, menstrual blood would have been transferred to his penis. One must accept it might have been, but the complainant did not see blood on the accused. There was no blood on her shorts or underpants.[59] Accepting the inference relied on by counsel that the accused did not shower before engaging in sex with WS, given the apparently short duration of penetration, the potential for any trace of blood to wipe off inside the accused’s clothes and the unknown range of what is clean in WS’ opinion, his evidence does not raise a reasonable doubt about the truthfulness and reliability of the complainant’s evidence.
[58]2-108.30.
[59]Transcript of preliminary hearing at 1-36.30-40.
Conclusions
I have considered all of the testimony, exhibits and admissions and all of the submissions of counsel, although I have not referred to every piece of evidence nor every submission in these reasons. The prosecution case depends on my accepting the complainant as a truthful and reliable witness. In my opinion, the complainant was a compelling witness. She was cross-examined in fine detail about the sexual events and was consistent in her accounts but for one matter, namely, the order of the penetrations on the occasion of counts 1 to 3. In the circumstances of this case, that uncertainty does not create a reasonable doubt about whether either act of penetration occurred.
There is no rule about how a person, particularly a child, should respond to being raped. The complainant’s response was authentic, as was her demeanour as a witness. Having scrutinised her evidence with care I am satisfied beyond reasonable doubt that the accused penetrated her as she says in respect of counts 1, 2 and 4; she did not consent to the penetration; the accused dealt with her as she described in respect of count 3; that dealing was unlawful and indecent.
It follows I find the accused guilty of each of the four counts.
R v Bna [2018] QDC 202
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